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[2001] FCA 65
Federal Court of Australia
2001-02-19
Finkelstein J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) to review and to set aside a decision of the Refugee Review Tribunal wherein the tribunal refused to set aside the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, that the applicant, Ms Lia, is not a Convention refugee. 2 The applicant came to Australia from the People's Republic of China, via Indonesia, in October 1997. She travelled here on an Indonesian passport which had been obtained in Indonesia, and on a visa to remain in Australia which had been obtained on the basis that she was an Indonesian citizen. 3 In January 1998 the applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs because it was suspected that, in breach of her visa conditions, the applicant had been working without permission. The applicant does not speak English so the interview was conducted in Mandarin, with the assistance of an interpreter. During the interview, the Immigration officer told the applicant that the officer believed the applicant was a Chinese and not an Indonesian citizen and that she had travelled to Australia on false papers, thus raising the possibility that her visa might be cancelled. The applicant immediately asked for the assistance of a solicitor. Accordingly, the officer suspended the interview and it was resumed on the following day in the presence of two solicitors. During the resumed interview the applicant said that she was born in Indonesia in 1967 and had travelled to China with her parents when she was eight months old, where she lived until June 1997 at which time she returned to Indonesia on a Chinese passport. The applicant said a friend of her father had obtained her Indonesian passport and a visa to travel to Australia. During the interview the applicant gave no reason for having left China and did not suggest she faced any problems living in Indonesia. At the conclusion of the interview the applicant was advised that her visa would be cancelled because it had been obtained on incorrect information and by the use of bogus documents; the relevant power of revocation is found in s 109. 4 The next day the applicant lodged an application for a protection visa. Sections of the application took the form of a questionnaire. In answer to the question: "Why did you leave [China]?", the applicant responded: "Because of the religion reason I was forced to leave China to my birthplace Indonesia". To the question: "What do you fear may happen to you if you go back to [China]?", she answered: "I fear that if I come back to China, the Chinese Government will put me in jail. I will give my statement later". To the question: "Why do you think they will harm/mistreat you if you go back?", she replied: "I will get mental and physical suffering and because the Mormon religion is conflict with the Communist idea. The whole country will be damaged from my religional belief. And the government consider my religional belief is illegal and it banned in China". 5 In a written statement that accompanied the application the applicant explained her position in a little more detail. She said: "I am a Mormon follower. The Mormon church has been banned in China. Because I went with one of my church friends to receive one shipment of Mormon Bibles, I was detected by the armed soldiers and was subsequently sent to a detention centre by the coastal guards. They lifted me up from the ground and tortured me. Although I had been lifted up from the ground for more than one hour, I did not admit any wrong-doing. Because I felt that both the Mormon church and Christianity were God's holiness, I therefore prayed to God to help me overcome the difficulties. Eventually, God gave me the strength, I woke up and escaped from death. Although I suffered a little psychic trauma, my body still remained healthy." 6 The application for a protection visa was considered by the delegate who conducted an interview with the applicant. In that interview the applicant claimed refugee status on the basis that she might be an Indonesian national. She said she could not return to Indonesia because ethnic Chinese face persecution in that country. 7 The delegate questioned the applicant about her religious views but, according to the delegate, "she was not able to tell [him] anything about her Mormon beliefs or anything else about Mormons". When asked about the contents of the Mormon bible, the transportation of which had resulted in her detention, the applicant said "that she had not had time to read them or find out about their contents". The applicant informed the delegate that she went to weekly Mormon meetings that lasted for two hours but, according to the delegate, when asked about the matters discussed at those meetings "she was unable to remember a single thing". 8 The delegate reached the following conclusion: "The applicant's claims about being a Mormon are clearly fictitious. I found it difficult to believe anything the applicant said about her claims or her responses to my attempts to verify her identity, her citizenship or details of her life since she arrived in Australia". In the result, the delegate found that there was not a real chance of persecution of the applicant for a Convention reason if she returned to China. 9 The applicant then applied to the Refugee Review Tribunal to review the decision of the delegate. The tribunal found that the applicant was a Chinese national but would not face persecution if she returned to China. It therefore affirmed the delegate's decision. In those circumstances it was unnecessary for the tribunal to consider the applicant's claim that she would face persecution for a Convention reason if she was required to return to Indonesia. 10 The reasons given by the tribunal for rejecting the applicant's claim may be summarised as follows. The tribunal found that the applicant is not a Mormon, was never involved with Mormons while in China and was not detained and beaten for transporting Mormon bibles or Mormon holy books. Indeed the tribunal said that the applicant is not a Christian. 11 The tribunal also found that "even if [the applicant] has an interest in Christianity, she can pursue that faith in a church that is officially recognised by the Chinese government". The tribunal reached this conclusion from evidence extracted from the China Country Report on Human Rights Practices for 1998, published by the Department of State of the United States of America. 12 I now turn to the grounds upon which the decision of the tribunal is challenged. The first is that the tribunal did not follow the procedures required to be observed by the Migration Act (s 476(1)(a)) by acting in breach of s 430. In summary, s 430 requires the tribunal to set out its decision in a written statement which gives "the reasons for the decision" (s 430(1)(b)), "the findings on any material questions of fact" (s 430(1)(c)) and "refers to the evidence … on which the findings of fact were based" (s 430(1)(d)). The applicant says that the tribunal rejected her case largely because of her ignorance about the Mormon faith. She points out that there is no reference in the tribunal's reasons to any evidence about the level of knowledge of religious faith to be expected of an illiterate, uneducated person. She says that the tribunal must have had in mind that a person in the position of the applicant would have had better knowledge of the Mormon faith than the applicant. But, so the argument went, the tribunal failed to explain this unstated assumption and the evidence upon which the assumption was based. 13 When the case was argued there was a conflict of judicial opinion on whether, and in what circumstances, a breach of s 430 would constitute a ground of review under s 476(1)(a). That conflict was resolved by the Full Court (comprising five judges) in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, though that decision is under review by the High Court in two recent appeals from decisions of the Full Court, namely Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 and Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649, which have been argued and judgment has been reserved. Until the High Court overrules Singh, as well it might, I am bound by that authority. The case holds that, for reasons which not need be explained, if a statement of the tribunal's reasons does not conform to s 430, then s 476(1)(a) is enlivened. Singh also explains the nature of the obligation imposed by s 430. The Full Court said (at [44]) that s 430 "calls for a recording of matters that are essentially matters of fact, namely the decision to which the [tribunal] came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based". 14 The decision made by the tribunal was that it would affirm the decision of the delegate. The reason for that decision was the tribunal's finding that the applicant was not a "refugee" within the Convention definition. That finding involved questions of law (the proper construction of the definition), issues of fact (whether the tribunal accepted as true or probable the facts asserted by the applicant) and mixed questions of law and fact (the application of the definition to the facts as found). The principal findings of fact which led the tribunal to its decision were that the applicant was not a Mormon (contrary to her assertion that she was) and that she had never been involved with the Mormons in China (contrary to her assertion that she had). The asserted facts (to adopt the terminology I suggested in Pollocks v Minister for Immigration and Multicultural Affairs [2000] FCA 1514) were not accepted as true or probable because the tribunal found that the applicant's account of her religious activities was false. This also was a finding of fact. The tribunal explained why it arrived at that finding. It was the result of a process of reasoning, or perhaps more accurately of inference and deduction, based on the following five propositions: 1. In her two interviews with an officer of the Department, the applicant was being questioned about a possible breach of a visa condition and "she did not mention religion"; (The tribunal had a copy of the notes of interview) 2. In her protection visa application, the applicant stated she was Mormon "but gave no details of her faith or difficulties she encountered"; 3. At the interview with the delegate the applicant was unable to provide any information about her religion; (The tribunal had the delegate's reasons for decision) 4. At the hearing before the tribunal, the applicant also displayed ignorance about basic concepts of the Mormon religion, and had little or no knowledge of Mormon, Joseph Smith or Mormon baptism and communion; 5. The applicant sought to disguise her lack of knowledge by relying on the fact, which the tribunal accepted, that she was uneducated and illiterate. However the tribunal was of the opinion that this was no more than "a ruse to cover up [her] lack of knowledge". 15 Each proposition was based on certain assumptions of fact which may or may not have been true or probable, but which were assumed to be true or sufficiently probable to be acted upon. For example for the purposes of proposition 1, the tribunal assumed that the officer's records of the two interviews were both accurate and complete. An investigation may have shown neither assumption to be true or probable. Further, even the assumed fact that the records of interviews were accurate and complete was itself based on further assumptions of fact, including, for example, an assumption that the applicant understood the questions that were asked of her during the interview and that the interviewer understood the answers that were given, sufficiently so as to be able to accurately record them. 16 Again, for the purposes of proposition 2, the tribunal must have assumed that the person who completed the application form on the applicant's behalf (she being illiterate and unable to complete it herself) carefully explained the questions that were to be answered and recorded the whole of the applicant's response. Perhaps neither of these assumed facts was true or probable. Moreover, as will be evident, the assumed facts are themselves based on further assumed facts, which may or may not be true or probable. 17 In relation to propositions 1 and 2, was it necessary for the tribunal, in its reasons, to record the assumed facts, and the evidence on which those facts were based? In Pollocks I attempted to explain why there should be a negative answer to that question. There I said of a statutory tribunal that is required to give reasons for its decision (at [14]): "When the asserted fact is not accepted because the underlying proposition is not proven, the tribunal satisfies its obligation to give reasons for not accepting the asserted fact by identifying the underlying proposition it does not accept and stating why it has not accepted that proposition. If the reason is that the proposition is incredible then a statement to that effect is usually sufficient if that makes clear the tribunal's reasoning. Then it will not be necessary for the tribunal to give further reasons why the underlying proposition, which will often be based upon one or more other propositions, has not been accepted. If that were the obligation, it is difficult to see where it would end." 18 In this case, the applicant asserts that in respect of proposition 3 the tribunal made an assumption of fact, namely that a person in the position of the applicant (an illiterate, uneducated woman) who claims to have an involvement with the Mormon church (her involvement dates back to 1975 or 1980) would know more about its doctrines than she does and that the tribunal was required to set out the evidence upon which that assumption was based. I will accept for the moment that the tribunal acted upon such an assumption, among others. But to comply with s 430, the tribunal was not required to set out the reasons why it made that assumption, or set out the facts upon which that assumption was based, substantially for the reasons I gave in Pollocks. The material findings of fact concern the applicant's involvement with the Mormon church. The tribunal set out those findings, thereby complying with s 430(1)(c). The evidence upon which those findings were based, namely propositions 1 to 5, was also set out in compliance with s 430(1)(d). The tribunal was not required to go any further and set out the findings of fact upon which each of its five propositions was based, nor the evidence for the findings involved in those propositions. 19 The second alleged contravention of s 430 arises from the tribunal's finding that "[the applicant] is not a Christian, but even if she has an interest in Christianity, she can pursue that faith in a church that is officially recognised by the Chinese Government". The applicant says this finding proceeds on the assumption that the applicant's right to religious freedom will be satisfied by practising her religion in a Christian church that has been recognised. The applicant says that the tribunal has not referred to the evidence or the material which allowed it to make this assumption. 20 There are two answers to this complaint. The first is that the tribunal did refer to evidence that led to its finding. The evidence is that contained in the Country Report mentioned earlier. According to that report, there is significant freedom of religion in China. The report says that by 1997 there were more than 85,000 approved venues for religious activities. According to the report, there were four million persons registered with the official Catholic church and somewhere between 10 and 15 million people registered with various Protestant churches. On the other hand, the report accepts that authorities in some areas continue to crack down on activities of unapproved Catholic and Protestant churches. Based on this evidence, the tribunal found, as a fact, that if the applicant had an interest in the Christian religion she would be able to pursue it in a registered church. 21 The second answer is that the finding about the applicant's potential interest in pursuing the Christian faith was not a necessary aspect of the tribunal's reasons, since it had found that the applicant was not to be believed in her claim that she was a Mormon or a Christian. That is, it was an alternative answer to the applicant's case in the event of error in the principal answer and, as such, could not be described as a finding on a "material" question of fact. 22 Next the applicant contends that the tribunal committed a reviewable error of law because its decision involved an incorrect interpretation of the applicable law, namely the definition of "refugee" in the Convention: see s 476(1)(e). The contention is that when the tribunal held that the applicant could pursue her faith in a church that is officially recognised by the Chinese government, it misunderstood the nature of religious persecution and what a person was required to show in order to prove persecution on account of his or her religion. The applicant argues that it was wrong for the tribunal to assume that practising her faith in a government registered church was acceptable to the applicant. 23 There is a difficult question whether persecution on account of religion involves the infliction, or threat of infliction, of punishment or harm, or whether the mere denial of a fundamental right, such as the right to practise one's religion, will, of itself, constitute persecution. A leading commentator, J C Hathaway, in The Law of Refugee Status (1991), has expressed the view that the failure by a State to ensure that its citizens can exercise freedom of thought, conscience and religion is tantamount to persecution. In Oyarzo v Minister of Employment and Immigration [1982] 2 FC 779, the Canadian Court of Appeal set aside a decision of the Immigration Appeal Board because the board had proceeded on the basis that there could be no persecution on account of imputed political opinion in the absence of some deprivation, or the threat of deprivation, of liberty or in the absence of physical mistreatment or the threat of physical mistreatment. 24 It is not necessary for me to decide whether the mere denial of a fundamental right, such as freedom of religion, will amount to persecution for the purposes of the Convention. Here the tribunal is not guilty of any misinterpretation of the meaning of "refugee" in the Convention. The statements made by the tribunal are findings of fact about the applicant. They do not involve any error of law. 25 The next ground of complaint is that "there is no evidence or other material to justify the making of the decision": s 476(1)(g). This provision is limited by s 476(4) which provides that s 476(1)(g) can be made out only in two circumstances: first, when the tribunal was "required by law" to reach its decision "only if a particular matter was established" and there was "no evidence or other material" from which the tribunal "could reasonably be satisfied that the matter was established" (s 476(4)(a)) and, second, if the tribunal based its decision "on the existence of a particular fact, and that fact did not exist" (s 476(4)(b)). 26 In her application for review, the applicant identified two "facts" or "matters" in respect of which it was alleged there was no evidence, basing her argument on s 476(4)(a). Those "facts" or "matters" were: (1) that a hypothetical illiterate, uneducated woman learning about the Mormon faith in China would have had a greater knowledge of that faith than did the applicant, and (2) that the applicant could pursue the practice of Christianity in a church officially recognised by the Chinese government.
27 In Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 the Full Court said (at [32]) that "to invoke s 476(1)(g) via (4)(a), it is necessary that there be a precondition in law to the making of the decision…, or at least a clear legislative intent that the making of the decision depends upon the establishment of a particular matter…. That is what [the Judge below] described in her reasons as a 'jurisdictional fact'." None of the "facts" or "matters" identified by the applicant is a "jurisdictional fact"; that is to say, a fact which is required by law to be established before the decision was reached. Hence the submission must fail in limine.
28 In any event, as regards the first "fact" or "matter", earlier in these reasons I was prepared to proceed on the basis that the tribunal had indeed made such a finding and that it was a finding of fact. But what the tribunal decided may not amount to a finding of fact. If a person asserts as a fact that he had a long-standing association with, or involvement in the affairs of, a particular institution, for example a church, it may be proper to assume, as a matter of human experience, that the person has acquired some knowledge about the institution. If, on examination, the person demonstrates no knowledge, or very little knowledge, about the institution, that lack of knowledge (a fact) may, either alone or in combination with other facts, make the asserted fact unbelievable. This process does not involve the making of a finding of fact; it is a process of reasoning by inference or deduction.
29 Another possible means of testing the asserted fact is to consider whether there is a particular standard of knowledge that would be reached by an hypothetical person who claims to have a particular association or involvement with an institution (a fact or hypothetical fact) and compare that level of knowledge with the level of knowledge disclosed by the person who asserts the association. The applicant says that the tribunal took this latter approach. However, I am of opinion that the tribunal made the finding that the applicant was not a Mormon or a Christian, not as a result of some comparison between the applicant's level of knowledge and the level of knowledge of some hypothetical person, but by a process of inference or deduction from the fact of the applicant's lack of knowledge about Mormon doctrines.
30 The second "fact", which the respondent appears to accept is a "fact", namely that the applicant could pursue the practice of Christianity in a recognised church, is based on evidence, as I have already shown. Whether that evidence is logically probative or not is beside the point: Epeabaka v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 411.
31 There is a third "fact" which is said to form the basis of the tribunal's decision, and in respect of which the applicant contends there was "no evidence". This "fact" was not mentioned in the originating application, but the applicant should be given leave to raise it. The "fact" is that "the applicant was obliged to advert or ought to have adverted to her religious situation during the interviews conducted by Compliance Officers of the Department of Immigration and Multicultural Affairs and that fact did not exist". Here the applicant relies on s 476(4)(b).
32 In support of this allegation the applicant relies on Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236. In that case the tribunal found that the applicant for refugee status had not been politically active in the country of his nationality for many years as he had alleged. The reason, or one reason, why the tribunal rejected the claim was that if it were so, the applicant would have made a statement to that effect in his application for a visa in response to the question: "Why did you leave [your] country?". The Full Court found the tribunal's opinion, that in answer to this question the applicant should have given details of his political activities, was a finding of fact which did not exist. According to the Full Court (at [17]) "the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which brought upon the issue of his political persecution".
33 I regret to say that I have real doubts about the correctness of Guden. Properly characterised, I believe that what the tribunal did in that case, and what it did in the present case, was to treat the conduct of the applicant (the failure to answer a question in the one case and the failure to provide certain information in the other) as evidence and draw an inference from that evidence, or perhaps from that evidence together with other evidence. The tribunal did not find as a fact that the applicant was required to provide certain information; it drew certain conclusions from his failure to do so, based on its experience of human nature. This is a process commonly undertaken by a court when it treats conduct as evidence. For example, in criminal trials for sex offences, the failure by a complainant to make a complaint at the earliest reasonable opportunity has traditionally been "a considerable factor where a tribunal of fact is deciding on the credibility of the complainant" (Kilby v The Queen (1973) 129 CLR 460 at 469). No finding of fact is involved in this process of reasoning. Also, there is the common example of the failure by a party to call a particular witness. In certain circumstances (those circumstances are well-known) if a party does not call a witness (a fact) that can lead to the inference that if called, the witness would give evidence unfavourable to the party's cause. This does not involve any finding of fact (that the party in question is in a particular circumstance required to call a witness); it is a process of reasoning. The trier of fact draws the inference which the circumstances of the case permit, because it is reasonable to do so.
34 Although Guden is a decision of the Full Court which I am bound to follow, it is of limited application. In Guden, the Full Court reached the conclusion that the tribunal had made a particular finding of fact. Unless the facts of a later case are identical, or almost identical, to those encountered in Guden, that decision will not govern the later case. In the instant case I am satisfied that what the tribunal did was to draw inferences from conduct, the inferences being those which the tribunal believed were available in the circumstances under consideration. Thus the tribunal did not find the "fact" contended for by the applicant, in my opinion.
35 The final matter with which I must deal is the application made during the hearing that the applicant be permitted to rely upon the alleged bias of the tribunal as a ground of review. Section 476(1)(f) provides as a ground of review that the decision of the tribunal was "induced or affected by fraud or by actual bias". I will not allow the amendment. There is nothing in the reasons to suggest any possible basis for a finding of bias.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.
Associate: Dated: 19 February 2001 Counsel for the Applicant: Mr A Krohn
Solicitor for the Respondent: Australian Government Solicitor
Lia
Minister for Immigration and Multicultural Affairs
(1998) 84 FCR 411
(1973) 129 CLR 460