Applicant P33/2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT Introduction 1 Two citizens of the Peoples Republic of China ('PRC'), a husband and wife, applied for protection visas in 1997 on the basis that the husband had a well-founded fear of persecution if returned to the PRC on account of his political and religious opinions and activities. The application was rejected by a delegate of the Minister for Immigration and that rejection was affirmed by the Refugee Review Tribunal ('the Tribunal'). The applicants subsequently joined in a representative action in the High Court claiming prerogative relief for want of procedural fairness. The procedural fairness issue arose because certain documents, before the delegate, said to contain general country information favourable to the applicants were not sent to the Tribunal and were not or may not have been considered by the Tribunal. Had they known that the documents had not been forwarded the applicants say they would have obtained legal advice about their position. 2 The case was remitted by the High Court to the Federal Court along with many others arising out of the representative action. It has had a long and convoluted procedural history. For the reasons that follow, I am not satisfied that there was a breach of procedural fairness. In my opinion the applications should be dismissed. The Application for Protection Visas - Factual and Procedural History before the Delegate and the Tribunal 3 The applicants, P33 and P34, who are husband and wife, are citizens of the PRC. P33 was born on 16 October 1935 and his wife on 29 October 1939. They have an adult daughter who lives in Australia. They have three other adult children, a son and daughter who live in Venezuela and another daughter who lives in China. 4 The applicants visited Australia in February 1995 and returned to China on 13 January 1996. On 10 March 1997, they again came to Australia on visitors' visas. On 27 August 1997, they lodged an application for protection visas with the Department of Immigration and Ethnic Affairs as it then was. The application for protection visas relied upon P33's claim to be a refugee. His wife does not claim to be a refugee but was included in the application as a member of the family unit. The substance of P33's claim for a protection visa rested upon his involvement with anti-communist movements since the communist party's assumption of power in the PRC in 1949. It also rested upon his conversion to, and practice of, Christian Catholicism. 5 On 30 June 1998, a delegate of the Minister for Immigration refused the grant of a protection visa to the applicants. While the delegate expressed sympathy about the experiences and harassment to which P33 and his family had been subjected since 1949 because of their perceived political opinions, he considered that those difficulties would not be replicated in the foreseeable future. The delegate did not accept that there was any adverse interest in P33 when he left and re-entered the country. Authorities in the PRC had implemented procedures specifically to identify opposition figures of interest to them. Notwithstanding those measures, P33 was not harassed and was able to leave and re-enter through the usual channels without being intercepted. 6 P33 claimed that he had converted to Catholicism on his first visit to Australia in 1995. On returning to China he had helped to establish an unofficial 'house church' at his home. After periodic harassment by authorities his house was raided and he was detained for one and a half months during which time he was beaten. The delegate accepted, as well documented, the PRC government's restriction of religious practices outside officially recognised and government-controlled religious organisations. He referred to evidence of government controls on all religions across the country so that religious activities conformed with politically acceptable norms. House churches had been required to register and to be brought under the authority of the official Patriotic Churches. For the ordinary members of unregistered Christian churches harassment had often taken the form of repeated detentions and heavy fines. Long terms of imprisonment had been imposed on the leaders of 'illegal' religious groups. Some had had their properties confiscated and their places of worship and houses demolished. 7 Recent country information cited by the delegate indicated that despite the PRC government's regulation of religious activities in China there had been an increasing number of opportunities for Chinese citizens to express their religious beliefs since the end of the Cultural Revolution. In summarising his extensive review of the country information, the delegate said: 'Despite the existence of evidence indicating significant harassment of unofficial religious activity, the most extreme form of this activity occurred in the past. While today the emphasis is on officially sanctioned modes of worship, there is evidence of a relaxation of the more extreme forms of harassment, with the approach of the authorities varying from one PRC region to another.' 8 The delegate found that P33's embrace of Catholicism was genuine. However he did not consider that as an ordinary Church member he would be subjected to treatment of a persecutory nature. That assessment was said to derive, inter alia, from information that P33's home province was not known as a region where a hardline approach had been taken in respect of unofficial Church-goers. The delegate relied upon the fact that P33 did not have any leading role in the Church. He also relied upon P33's recently demonstrated ability to arrive and depart the PRC without any difficulties and recent positive developments in the approach of the PRC authorities and their relationship with the Vatican. 9 The delegate found that P33's fears of being persecuted on account of a combination of his family background, political opinions and religion were not well-founded. 10 In Part B of the written decision record prepared by the delegate there appeared the following: 'PART B EVIDENCE BEFORE ME Evidence used in making my decision is found in the following sources: . Departmental file 97/1133 relating to the applicant; . The Law of Refugee Status, James Hathaway, 1991 . UN House of Representatives Human Rights Reports 1990-1996 . . Other evidence, as enumerated in the body of this decision record.' The first and second items in the list are self-explanatory. The third item is in fact a reference to US State Department Country Reports on Human Rights Practices for 1990 to 1996 relating to China. The fourth item comprised the US State Department Country Reports on Human Rights Practices for 1997 relating to China. 11 The fifth item, 'Other evidence', comprised country information documents referred to in Part C of the decision record other than those already identified in Part B. They comprised the following: '(a) CX749 "PRC security checking procedures" dated 13 May 1993. (b) CX1372 - O.BJ1879 "PRC application for refugee status - office bearers of pro-democracy organisations" dated 1 June 1993. (c) CX1091 - BJ4761 "Refugees: Treatment of Returnees" dated 9 February 1994. (d) CIS Research Paper by Peter Coyne "Dissent in China - 1993" dated April 1994. (e) Human Rights Watch World Report 1994 dated December 1993. (f) The Far Eastern Review dated 6 October 1994. (g) CX 1097 "New rules issued to control religion" by Agence France Presse dated 6 February 1994. (h) Report by The Christian Science Monitor on "Beijing's Disapproval Does Not deter Young Chinese Christians" dated 9 March 1994. (i) US State Department Country Reports on Human Rights 1997 "China Country Report on Human Rights Practices for 1997" dated 30 January 1998. (j) Asia Watch publication on "Detained in China and Tibet..." (February 1994). (k) China Study Journal "Council of Churches for Britain and Ireland" Vol 8 dated 1 April 1993. (l) Los Angeles Times on "For one Chinese Voyager..." by S Rosella. (m) CX312 "Official says house churches 'allowed by Chinese law" reported by South China Morning Post dated 20 September 1993. (n) CX44 - O.BJ46678 "Human rights delegation briefing: religion" dated 21 June 1991. (o) CX2362 - SH9802 "China: Shanghai: Christianity/protestant church" dated 1 August 1994. (p) Amnesty International report on "China Protestants and Catholics detained since 1993" dated March 1994. (q) Asia Watch report on Freedom of Religion in China" dated January 1992. (r) Amnesty International - ASA 17/69/96 report on "Religious repression in China". (s) Reuters report, April 1998. (t) CX28992 "Freedom of religious belief in China" dated 3-9 November 1997. (u) CX28997 "Politics of religion" dated 28 November 1997.' The designation 'CX' indicates that the document in question had been entered in CISNET, a computer database accessible to Tribunal members and staff. 12 The applicants together made application to the Tribunal for review of the delegate's decision. The application for review was lodged with the Tribunal on 30 July 1998. 13 On 30 July 1998, the Tribunal sent a letter to P33 which included the following: 'RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) We received your application on 30 June 1998. The Refugee Review Tribunal reviews decisions made by the Department of Immigration and Multicultural Affairs about refugee status and is independent of the Department. The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents the Tribunal will decide if your application is valid. If the Tribunal decides your application is valid, the Tribunal will look at the Department's documents, along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as "review on the papers". If the initial "review on the papers" does not result in a decision in your favour, you will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal. Some hearings are conducted by video or telephone conference. Please note that you may send any documents or written evidence at any stage of the case. You should quote the file number shown at the top of this letter when sending any documents to the Tribunal. Any documents you wish to send in support of your application that are not in English must be translated into English by an accredited translator or recognised translation authority. You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your refugee status application.' 14 The Tribunal wrote to the Secretary of the Department of Immigration and Multicultural Affairs on 30 July 1998. It said: 'Please forward the documentation referred to in Section 418(2) and (3) of the Act and any written arguments to this office within 10 working days.' On or about 10 August 1998, the Secretary sent to the Tribunal the departmental file 97/1133 relating to the applicants. 15 On 23 September 1998, the Tribunal wrote to P33. The letter began: 'The Tribunal has looked at all the papers relating to your application but it is not prepared to make a favourable decision on this information alone. You now have an opportunity to come to a hearing of the Tribunal to give oral evidence in support of your claims.' There then followed instructions about the steps and arrangements necessary in relation to the oral hearing. The date of the hearing was fixed for 15 October 1998. The letter went on to require P33 to identify any witnesses from whom he wished to call oral evidence and to give brief details of what they would say at the hearing. He was also required to send 'any new documents or written arguments to support your application to the Tribunal immediately'. In his Response to the Hearing Offer, completed on a Tribunal form, P33 indicated that he wanted to call P34 and another witness to 'corroborate present situation in PRC'. 16 On 1 October 1998, a solicitor, Mr Banwell, acting for P33 wrote to the Tribunal forwarding the Response to Hearing Offer and said: 'By letter of the 4th August, a further translation of a letter received from [P33's] daughter was enclosed containing reference to two persons, Zhu Ping and Wen Song having been recently convicted and sentenced for offences relating to religious observances. A further copy is also enclosed for use at the hearing. It will be asserted at the hearing that such evidence is persuasive to reverse the decision made by the Department. Further newspaper articles (in Mandarin) will be tendered to support such contention and it is requested that some attempt to translate the enclosed copies be made. My client has no further funds to do this.' 17 On 5 October 1998, P33 sent a facsimile to the Tribunal confirming his proposed personal attendance at the hearing and requesting an interpreter familiar with the Cantonese dialect. He said: 'With the assistance of a family friend, I am now preparing new documents and written arguments to support my case and shall have these documents forwarded to your office asap prior to the hearing date.' 18 In a letter dated 7 October 1998 and written in the English language, P33 set out submissions in support of his application for review of the delegate's decision. In the written submission he renewed his claim that he had genuine and well-founded fears of being persecuted for reasons of his religious and political opinions if he were made to return to the PRC. In Part 1 of the submission he referred to the background of his family as property owners and his classification as a 'landlord' which he described as 'an innocent sin I had inherited not of my own free will'. Many of his 'ancestral properties' had been confiscated by the communist regime leaving a residential property which he had been using as his family home. In a recent telephone call his daughter in China told him that his property was in the process of being listed for acquisition by the government. He said his absence from the PRC since 1997 made him more vulnerable to such acquisition. He believed that the acquisition was part of a Communist Party initiated conspiracy to deprive him and his wife of their ancestral home and to bring an end to its frequent use as a 'house church' for his fellow Christians. Without their home he and his wife would have nowhere to live on their return to China. They would lack the financial means to rent a property. Such properties are mainly owned by the government. 19 According to P33 his college education and his public expression of support for a democratic society on mainland China agitated the Chinese Communist Party and led to him being labelled a 'rightist' and 'anti-revolutionary'. He said he had been arrested, detained and imprisoned without any fair trial or access to legal assistance in both 1957 and 1968. While under detention and imprisonment he said he was blindfolded for beatings and kickings by security police and made to sleep naked on a concrete floor in winter months with only meagre foods on which to survive. 20 P33 said he gave strong and open support for the Students Democratic Movement in 1989. He was detained at Tiananmen Square and was subjected to beatings, kickings and torture by security police. After his release from detention he was assigned to work as a labourer in a State-owned factory under the Communist Party's reformation and re-education through labour program. P33 said he did not believe he could survive another detention with police brutality as he is now over 63 years old and has a weak body. He said that his role as one of the leading 'house Church' members attracted many police raids on his home under orders from the Communist Government. Police threatened his fellow Church members with arrests and detention if further Church meetings were conducted. The arrest and detention of two of his Christian friends in May 1998, which was attested by his daughter's letter of 10 July 1998, provided 'concrete evidence' of the imminent danger he faced and a real chance of his persecution on his return home to Guangzhou City. 21 P33 said that following his release from detention late in 1989 he was not given any form of employment in the public service or in the private sector. He was unemployed after that date and so his family was deprived of income. He and his wife had to rely on handouts from their friends and relatives for their livelihood. They had no means of supporting themselves should they be made to return to the PRC. 22 P33 referred in his submission to reports that the PRC government had relaxed its policies on the practice of Roman Catholicism in China because of better relationships with the Vatican. He said that if this were so the arrests and detention of his two Christian friends as recently as May this year was hard to comprehend bearing in mind that they were pursuing their religious beliefs as Roman Catholics. He asserted that he would face a similar fate on his return to China. 23 Part 2 of P33's written submissions provided what were described as 'responses to official assessments of my applications relating to PRC's more relaxed policies on practice of Catholic religion and more lenient treatments for dissidents pursuing democratic reformation in China'. He argued that there were no grounds for concluding that Chinese authorities had lessened their grip or lacked interest in him as a low profile person in connection with his religious and political activities. While the Central Government might have loosened and relaxed its policies on dissidents and advocates of religious freedom in order to improve its international image, these improvements did not apply to Guangdong Province. Security police still pursued people suspected of involvement in such activities. The further away the provinces from the Centre the worse were the human rights violations by local police and Communist Party officials. There was no basis, he said, for the proposition that Guangdong Province was not known for a hard line approach. It had one of the worst records of regional human rights violations as evidenced by thousands of political detainees used in factories to produce goods for export to western countries. P33 denied that there was any fundamental right or freedom to pursue one's own religion in PRC. The detention of his two co-religionists in May 1998 for the pursuit of their religious beliefs bore witness to the inaccuracy of that statement. The reported improvement in relations between the PRC government and the Vatican had not improved the Catholic Church activities in mainland China. 24 As to his capacity to enter and re-enter Australia and the PRC, P33 said that, in order to secure his PRC passport for overseas travel, he had to offer bribes to the officials concerned. He and his wife had to plan their departure from PRC quickly because they had been advised by sources within the Guangdong security police of their imminent arrests in the coming months. P33 did not accept the correctness of the delegate's assessment that even relatively well known dissidents had been able to return to China without too much difficulty. He said he could provide examples of dissidents in the 1989 event being barred from entering the PRC or being deported immediately after their arrival. His written submission ended: 'It does appear to me that the assessments prepared for the Department of Immigration and Ethnic Affairs Australia as guidelines to process applications for protection visas (Refugee Status) were based on the official version of the Beijing government, without in-depth studies of the problems faced by dissidents and activists of the democratic and religious movements in PRC.' 25 In Part 3 of his written submission to the Tribunal, P33 referred to various examples of human rights abuses in PRC or inflicted by the government of PRC. He referred to events in Tibet, deaths in police custody, the detention of dissidents while world leaders were visiting, arrests and detentions in Guangdong Province and to the arrest of a labour activist and novelist. He made the point that the PRC government has refused to release official statistics of the numbers of political dissidents gaoled in Chinese prisons apart from those black-listed for arrests in coming months. The submission also referred to what were described as 'latest political developments in PRC'. 26 Part 4 of the submission was by way of summary. A letter of 10 July 1998 from his daughter about the arrest of two coreligionists was attached. There was also a number of newspaper clippings about Chinese government action against dissidents. The Tribunal's Decision 27 The Tribunal decided on 16 February 1999 to affirm the decision not to grant P33 and his wife protection visas. In its reasons for decision it referred to the submissions put by P33 and P34. Under the heading 'Findings and Reasons' it accepted that P33 and his family had a difficult time before and during the Cultural Revolution. However methods employed by authorities during that period had been repudiated. The Tribunal was satisfied that P33 did not have a well-founded fear of persecution arising out of that period. 28 The Tribunal accepted, for the purposes of the review, that P33 did have some involvement in the 1989 pro-democracy movement. P33 claimed to have organised and participated in street demonstrations and presented petitions. Such activities were common at that time and the Tribunal accepted that P33 may have been part of them. The Tribunal referred to information provided by the Department of Foreign Affairs and Trade which it had discussed with P33 at the hearing. The items to which it referred were the following: Country information, China DFAT 1992 DFAT cable OBJ51854 of 21 September 1992 Coyne, ' Dissent in China' - 1993 DFAT cable BJ15671 of 12 February 1998 The Tribunal referred to P33's claims in his original statement that he had been detained for four months after the June crackdown. In oral evidence before the Tribunal he had claimed, for the first time, to have been detained for 11 months and dismissed from his employment. The Tribunal was doubtful about the veracity of his claims given his limited involvement in the movement, the inconsistency of his claim and the independent information relating to the attitude of the authorities to involvement in the movement. 29 Even if P33 had been arrested and detained and dismissed from his employment as claimed, no further action was taken against him on account of his political activities after early 1990. The Tribunal observed that he had departed China twice since 1990 and had no apparent difficulty obtaining passports or exit visas. To the extent that there was an unemployment problem, it was a problem in China mostly due to economic conditions rather than individual conflict between citizens and authority. The Tribunal therefore found that any involvement P33 had in the events of 1989 were so remote in time that there was no real chance he would face persecution as a result of that involvement if he returned to the PRC. 30 In relation to the religious opinions ground, the Tribunal referred to the US Department of State China Country Report on Human Rights Practices for 1997. It noted that the Australian Consulate General in Guangzhou in a cable dated 9 May 1995 said that 'many practising Christians and believers of other faiths ... are able to worship in their homes and at churches or temples without harassment ... [and that] gatherings of house-church worshippers in major cities ... can expect to be able to conduct their meetings without any undue harassment'. The Tribunal also cited an article in Asia Week of 17 August 1994 called 'The Great Awakening: China's Christian Revival' written by Todd Crowell. An analysis entitled 'Post Tiananmen Chinese Politics and the prospects of democratisation', written by Stephen Young for Asia Survey, 1995, was also referred to for the proposition that, as government control over the individual is diminishing in China, an increasing number of citizens are participating in religious activities. The Tribunal considered information from Asia Watch, 'Detained in China and Tibet', which provided several case studies of PRC citizens subject to arrest, interrogation and detention by the authorities on religious grounds. Amnesty International reports were cited for the proposition that authorities had persistently harassed citizens implicated in unauthorised religious activities. Those reports indicated that persons who linked religious activism with criticism of the government and those who persistently broke the law and resisted the directives of authorities, were at risk of suffering their adverse attention. 31 The Tribunal mentioned newspaper reports suggesting that the PRC government was determined to control the spread of religious activities in the country. It observed that the PRC State Council's Religious Affairs Bureau had issued a statement in June 1997 to refute criticism that religious persecution persisted in the PRC. There was a reference to an article by E Gargan in the New York Times in 1997 and then to 'other recent information' which was said to indicate that although unauthorised religious activities continued to attract adverse reaction from the authorities in China, their response was not uniform from city to city or from one rural region to another. The Tribunal cited a number of reports indicating that leaders and organisers of unauthorised religious activities as well as those who persisted with such activities were at risk of suffering mis-treatment by the authorities. 32 The country information was discussed with P33 at the hearing. P33 told the Tribunal that he could only go to a registered Church. It was when he decided to participate in an unregistered Church in 1995 that he attracted the adverse attention of authorities. The Tribunal noted that the only activity described by P33 was the conduct of prayer meetings within the confines of his own home and later in the home of friends during his return in 1995. It considered his tardiness in lodging his claim for refugee status and noted that he had made no claim for refugee status during his first visit to Australia and return to China to practice his religion in a country where he claimed there is ongoing persecution of religious adherence. The Tribunal did not accept P33's explanation that he did not apply for refugee status on his earlier visit on account of his lack of knowledge of the definition of a 'refugee'. The Tribunal also found that the level of P33's religious participation did not match well with his alleged profile in his Church as a leader and activist. 33 The Tribunal did not find that the requirements for registration as such and for the conduct of religious activities in a registered place were of themselves persecutory of persons of religious persuasions. It was satisfied by the independent evidence that P33 could practice as a Catholic Christian in China. It noted that many Catholics moved between the official and unofficial Churches as do the clergy. Many of the 'official' clergy have covert approval from Rome. 34 The Tribunal considered the extent of P33's religious activity on his return to China. He was not a formal member of the Church and was not baptised until January 1998, almost a year after he returned to Australia a second time. His religious activity in China involved the conduct of prayer meetings within the confines of his house and with fellow believers. He had not received any sacraments and did not attend Mass, or participate in any formal religious activities. Nor did he claim to have been involved in any political activities in this period. Although he had claimed to have taken a banned book into China and to have been detained for conducting prayer meetings in his home and kept under surveillance he continued to conduct such meetings in the homes of his friends. He retained his passport and departed China on travel documents issued in his name despite stringent security checks on travel arrangements. The Tribunal then said: 'The Tribunal has decided, after considering the applicant's description of his religious activities in China and Australia, in conjunction with information obtained from the external sources referred to above and the reports submitted by the applicant, that despite the PRC government's control over religious affairs there are opportunities for Chinese Christians to practice their religion without suffering adverse treatment by the PRC authorities. The Tribunal finds that if he returns, he will not be prevented by the government from doing so if he conforms to the laws regulating such religious activity.' The Tribunal regarded the letter from P33's daughter in China as self-serving and contrived and gave it no weight. In the event the Tribunal was not satisfied that the applicants were persons to whom Australia has protection obligations under the Refugees Convention. Proceedings in the High Court 35 In March and June 1999, a Mr Muin and Ms Nancy Lie, both Indonesians of Chinese ethnicity, commenced proceedings in the High Court in respect of the affirmation by the Tribunal of decisions of delegates of the Minister for Immigration and Multicultural Affairs refusing to grant them protection visas. They sought relief under s 75(v) of the Constitution. Both actions were brought as representative proceedings. Numerous plaintiffs were joined to each of these actions between 1999 and 2001. P33 and P34 were among the applicants who joined the schedule of represented parties in the Lie action. 36 Gaudron J reserved certain questions on 3 November 2000 for consideration by the Full Court of the High Court under s 18 of the Judiciary Act 1903 (Cth). The questions which related only to the individual cases of Mr Muin and Ms Lie related to alleged failures to accord procedural fairness. In its judgment, which was delivered on 8 August 2002 in Muin v Refugee Review Tribunal (2002) 190 ALR 601, the High Court held that in the case of both Mr Muin and Ms Lie there had been a failure to accord procedural fairness in connection with the review of the delegate's decision by the Tribunal. That failure arose, in part, out of the failure to transmit to the Tribunal the Part B documents relied upon by the delegate in relation to the decision-making. 37 On 25 November 2002, Gaudron J made an order granting leave to any person named in the schedule to the statement of claim in the proceedings to file an application seeking an order nisi in relation to the decision of the Tribunal concerning that individual on or before 1 June 2003. Applications so far were to be remitted 'instanter' upon filing to the Federal Court of Australia pursuant to s 44 of the Judiciary Act. Similar orders were made in the Muin proceedings. The time for making applications for orders nisi was extended from 1 June 2003 to 20 June 2003 by McHugh J. Draft orders nisi with supporting affidavits were filed in the original jurisdiction of the High Court by the applicants on 27 May 2003. Those matters were then remitted to this Court. There was subsequently a question whether or not they were out of time and I determined that question in favour of the applicants on 21 April 2004 - P33 of 2003 v Refugee Review Tribunal [2004] FCA 474. The Grounds relied upon for the issue of prerogative writs and orders sought 38 On 27 October 2003, the applicants filed a statement of contentions specifying the grounds upon which prerogative relief was sought. They contend that the Part B documents referred to in the delegate's record of decision were not sent to the Tribunal and were not considered by it. They say the Tribunal did not advise them, and they were not aware, that it had not received and had not considered the documents. These documents, it was said, were an important part of the factual background to be considered by the Tribunal. The Tribunal did not seek submissions from nor give the applicants the opportunity to make submissions to, or address it, on the contents of the Part B documents. The letters sent on 30 July 1998 and 23 September 1998 were misleading. Accordingly, in his written submissions P33 did not address the issue of the Part B documents. 39 The applicants contend that the circumstances surrounding the Tribunal's failure to take into account the Part B documents were misleading and resulted in a denial of procedural fairness. This, it was said, amounted to a jurisdictional error giving a right to prerogative relief. 40 The orders sought are prohibition to prevent the Secretary of the Department and the Commonwealth from proceeding further on the decision of the Tribunal to affirm the refusal of the grant of protection visas, certiorari quashing the Tribunal's decision and mandamus directed to the Tribunal requiring it to consider and determine the application for review of the refusal to grant a protection visa in accordance with law. The applicants also seek the costs of the application. The Evidence 41 The evidence comprised three documentary exhibits and a number of affidavits. The documentary exhibits were a Statement of Agreed Facts (Exhibit 1), Answers to Interrogatories verified by the second respondent (Exhibit 2) and the Tribunal file (Exhibit 3). The affidavits relied upon by the applicants were affidavits sworn by P33 on 27 May 2003, 27 October 2003 and 4 February 2004 and an affidavit of his solicitor, Mr Goldfinch, sworn 10 June 2004 annexing various documents being 'Part B' documents which were delivered to him. 42 The respondents relied upon two affidavits of Janine Gwenda Murfet an officer of the Department of Immigration and Multicultural and Indigenous Affairs, sworn 1 June 2004 and 11 June 2004 and affidavits of Teresa Ling sworn 7 January 2004 and 14 June 2004 exhibiting various documents. The affidavits of Ms Murfet were read subject to relevance. I am satisfied that they were relevant as describing the Tribunal's system for retaining and updating information on a computer database and for obtaining country information from the departmental library by inter-library loan. Ms Murfet was only appointed to her position in the relevant section of the Department last year. I am satisfied however that she could properly describe the system and refer to departmental and Tribunal records to give evidence of the times at which certain documents were placed on the CISNET database to which the Tribunal members and staff had access. Findings of Fact 43 Concerning the Part B documents, the following facts were established by the evidence: 1. The file which was the first item mentioned in the delegate's Part B list was sent to the Tribunal. 2. The Hathaway textbook, which is the second item mentioned, was not sent to the Tribunal. 3. Hard copies of the documents which are the third, fourth and fifth items mentioned in Part B were not sent to the Tribunal. I make that finding as a matter of inference from the absence of any records or documents on the files of the Department or the Tribunal to indicate that any copies were sent. 4. A number of the documents referred to in Part B of the delegate's record of decision were accessible to the Tribunal at the time of the decision through a database known as CISNET. Others were kept in hard copy in a Country Information Service Library kept by the Department and accessible to Tribunal members and staff by way of inter-library loan. 5. As appears from the affidavits of Ms Murfet, an officer of the Department, it was not established that the following documents were available to the Tribunal via CISNET at the time of its decision: (i) US State Department Country Reports on Human Rights Practices for 1993-96 (ii) US State Department Country Report on Human Rights Practices for 1997 (iii) The Far Eastern Review, 6 October 1994 (iv) US State Department Country Reports on Human Rights 1997 'China Country Report on Human Rights Practices for 1997' dated 30 January 1998 (v) Asia Watch Report on 'Freedom of Religion in China' dated January 1992 (vi) Reuters Report April 1998 6. There is no evidence that the applicants had at any time any idea of whether the Part B documents were favourable to them or not in whole or in part. 7. Had applicant P33 believed, at the date of the Tribunal's letter of 23 September 1998, that it had not looked at all documents relating to the application sent to it by the delegate he would have sought legal advice. This appears from the affidavit of P33 sworn 4 February 2004. 8. There is no evidence that P33 would have taken or been advised to take any particular steps in relation to the Part B documents or what those steps would have been. 44 Counsel for the applicants listed those documents which were referred to in Part B of the delegate's decision record and which he identified as 'favourable' to the applicants' case. These were documents exhibited to his affidavit of 10 June 2004. Passages from them were identified by counsel in a written submission, filed on 18 June 2004 following the hearing. He cited particular paragraphs from the US State Department Country Reports on Human Rights Practices 1990-1997. They came from each of the Annual Reports from 1990 up to and including 1997. The most recent of the references from the 1997 Report spoke of 'varying degrees of official interference and repression as the government continued to enforce 1994 State Council regulations requiring all religious organizations to register with the Government and come under the supervision of official "patriotic" religious organizations'. 45 In the Human Rights World Watch Report 1994, also cited by counsel, it was said : 'The Chinese government continued to arrest, detain and torture peaceful critics and to interfere with freedom of expression, association, assembly and religion.' The Report referred to the intensification of religious repression in China throughout 1993, 'with the Protestant house-church movement coming under particularly severe attack'. A Christian Science Monitor Report of 9 March 1994 to which he referred mentioned 'new controversy over suppression of religious dissent and unrest' and 'growing numbers of Chinese ... turning to religion as an anchor'. Much of the material relied upon in these and other passages from Part B documents cited by counsel for the applicants related to the first half of the 1990s. 46 An Amnesty International Report of July 1996, cited by counsel, referred to the intensification of 'the crack down on members of religious groups which are not registered with the authorities...'. It said: 'For ordinary members of such groups, the harassment has often taken the form of repeated detentions and heavy fines. Fines as large as 1,000 yuan - the equivalent of several months income in rural areas - have been imposed on people found to be participating in what the authorities regard as illegal religious activities and, in some cases, such fines have been imposed on individuals more than once a year.' 47 The Tribunal's reasons for decision disclose that certain of the documents listed in Part B of the delegate's record of decision were referred to by it. The Tribunal mentioned the 1997 US State Department Report, the Human Rights Watch World Report of 1997 and 1998, the 1993 publication 'Dissent in China' by P Coyne, and the Amnesty International Report - 'China and Catholics Detained Since 1993'. 48 Having regard to the materials referred to by the Tribunal in its reasons, despite the fact that some did not have a 'CX' number and were not immediately available on CISNET at the time of the decision, I cannot be satisfied that the Tribunal did not have access to any of the documents mentioned in the third, fourth and fifth items of Part B of the delegate's decision record. Nor can I be satisfied, in respect of any particular document not mentioned in the Tribunal's reasons, that it did not refer to that document. Whether There was a Breach of Procedural Fairness 49 The applicants' sole ground for seeking to set aside the Tribunal's decision is that they were denied procedural fairness. They rely upon the decision of the High Court in Muin as support for that proposition and also the decision of the Full Court in NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 317. 50 In Muin there was before the Court an extensive statement of agreed facts. As helpfully summarised by Allsop J in NABC at [39] they included the following: '(b) The Part B documents were considered by the Secretary of the Department, through his delegate, to be relevant to the review of the delegate's decision by the Tribunal (for the purpose of s 418(3) of the Act). (c) All the Part B documents listed by the delegate were available to members of the Tribunal, either on computer or at various libraries... (d) The Department did not send hard copies, or copies in electronic form, of the Part B documents to the Tribunal, as could have been done... (e) The Tribunal member had a computer allowing access to the server with CISNET stored documents... (f) The plaintiff believed that the Part B documents were sent to and looked at by the Tribunal in the making of the review on the papers and/or the final decision...' It was also agreed that had the plaintiff been aware of the fact that the documents were never physically transferred to or sent to the Tribunal at any time prior to the making of its decision he would have arranged to have a migration agent or a solicitor/migration agent act for him in order to make further written submissions to the Tribunal and seek to appear at the oral hearing with him or on his behalf. He would also have sought to bring forward before the Tribunal additional evidence to that which he did send to the Tribunal by way of documents, statements, further witnesses or country information which went to the question of the true position in his home country, Indonesia, to the effect that it was unsafe for him to return home and supporting his claims that his stated fears of persecution were reasonable at the time. In addition, or alternatively, he would have undertaken further research and submitted to the Tribunal additional information or documents of a type or kind referred to or contained in a list of examples of Tribunal decisions favourable to ethnic Chinese persons from Indonesia seeking refugee status in Australia. In summarising this aspect of the agreed facts I have omitted references to adverse material said to have been put before the Tribunal without notice to the plaintiff. 51 In characterising the agreed statement of facts, Gaudron J said at [62]: 'The agreed statement of facts makes it clear that Mr Muin was misled into thinking that it was unnecessary for him to draw the information in the Part B documents that favoured his application to the attention of the tribunal and that, had he not been misled in that regard, he would have taken steps to correct that situation.' Her Honour then said (at [63]): 'In my view, a reasonable applicant for review who had been informed that the tribunal would look at the department's documents along with other evidence on the tribunal file and, later, that the tribunal had looked at "all the material relating to [the] application" would have been misled into thinking that it was unnecessary to draw the tribunal's attention to the material that favoured his or her application in the Part B documents referred to in the original decision and would have refrained from so doing. Accordingly, it follows that, by reason of the tribunal's failure to have regard to all of the Part B documents that favoured Mr Muin's case, he was denied procedural fairness.' Hayne J at [257] characterised the position of the plaintiffs thus: 'Neither plaintiff was given an opportunity to place before the tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the tribunal.' Gummow J agreed with Hayne J at [171]. As Kirby J said at [195] the agreed facts in that case accepted that each plaintiff believed that the Part B documents were sent to and looked at by the Tribunal in making the review 'on the papers' and in the final decision following the hearings. 52 It is important to bear in mind the scope of the agreed facts in Muin which are not reflected in the agreed facts and uncontested evidence in this case particularly as to the applicants' knowledge of or belief about the content of the Part B documents and what they would have done had they known that the documents were not forwarded. In NABC, Allsop J (with whom the other members of the Court agreed) said (at [94]): 'In Muin there were particular agreed facts; the material before the Court included the results of discovery and inspection; and the terms of the decisions of the delegate and the Tribunal were different. What is relevant from Muin, however, is the approach of the majority, not as a matter of binding legal principle, but as persuasive guidance as to the application of underlying fundamental principle that what is procedurally fair depends upon the terms and framework of the statute concerned, including the nature and purpose of the power in question, the issue involved, the nature of the decision, the posited approach of the Tribunal, the consequences to the parties and any surrounding circumstance... Whilst in most cases the concern is whether, in the given circumstances, the person the subject of the decision is aware of the issues relevant to the making of the decision, of any adverse material concerning those issues and whether he or she has a reasonable opportunity in all the circumstances to put what he or she wishes about those matters, another reason to conclude that there has been unfairness will be if the person the subject of the decision has been misled into not putting material to the decision maker that he or she otherwise would have put by reason of what the decision maker has said to him or her.' 53 In NABC the letters sent to the appellants when read together or consecutively led the relevant appellant to believe that the documents had been sent to the Tribunal. The primary judge had found as a matter of fact that he would have taken steps, including drafting his submissions differently, had he known that the Tribunal had not been sent copies of the documents. As Allsop J said the distinction in that case on the facts from the Muin case did not mean that the appellants must fail (at [98]): 'The question as to whether procedural fairness has been afforded depends on the circumstances of each case. The significance of the relationship between the relevant belief and what would have been done, and the identity and nature of the relevant unfairness or practical injustice, are to be assessed in every case by reference to the individual circumstances.' In that case the substance of what the appellant had said in cross-examination at first instance was that he would have directed different submissions to the Tribunal '... presumably about the favourable material, and, at least, he would have sent the favourable material to the Tribunal' (at [100]). That factual situation does not exist in this case. 54 Importantly in the present case the Tribunal made extensive reference to country information, including country information contained in Part B documents. There is nothing in its findings about the general position arising out of the country information which, it can be said, would have been different on account of any of the material from Part B not expressly referred to in the reasons. Counsel for the applicants did not point to any critical piece or pieces of information which could have led to a different outcome. Generally speaking the thrust of the Tribunal's factual findings reflected the various views and perspectives expressed in the Part B documents to which counsel for the applicants referred in his post-hearing submissions. 55 In its reasons the Tribunal said: 'Government response to the burgeoning of interest in things religious has been to attempt to control it. The independent evidence shows that the government tolerates religions and religious groups if they acknowledge government regulations. These latter were reinforced by a 1991 government circular which stated that 'all sites of religious activities must be registered according to law' and it is that regulation which the applicant claims to have offended. The Human Rights Watch/Asia [Report], mentioned above, states that "Government control is exercised primarily through a registration process administered by the State council's Religious Affairs Bureau through which the government monitors membership in religious organizations, locations of meetings, ... Failure to register can result in the imposition of fines, seizure of property, razing of 'illegal' religious structures, forcible dispersal of religious gatherings, and, occasionally short term detention... In 199, we found isolated cases but no evidence of widespread or systematic brutality. When reports of these harsher measures do surface, they are increasingly denounced by the central government officials as examples of the excesses of local officials and their failure to implement policy directives correctly..."' The Tribunal was not satisfied that registration was itself persecutory and no such contention is advanced in this case. The Tribunal was satisfied that the applicant could practice as a Catholic Christian in China and noted that many moved between the official and unofficial churches. The Tribunal also had regard to the personal position of the applicants, the level of P33's religious activities, the fact that he had not been involved in any political activities on his return to China and that he was able to retain his passport and depart China on travel documents issued in his name despite the application of stringent security checks on travel arrangements generally. It was also satisfied that if he returned to China he would not be prevented by the government from doing so if he conformed to laws regulating such religious activity. This is entirely consistent with all the materials put before the Tribunal and is not undercut by any materials which may not have been considered by the Tribunal under Part B. 56 In my opinion this is not a case in which any 'practical injustice' is demonstrated. That is to say it is not a case in which there has been a failure to accord procedural fairness to the applicants. Conclusion 57 For the preceding reasons, the applications will be dismissed with costs. I certify that the preceding fifty seven(57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.