Lin v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a Chinese national who arrived in Australia on 8 December 1997 and sought a protection visa under the Migration Act 1958 (Cth) ("the Act") on 14 January 1998. A delegate of the Minister refused his application on 23 April 1999. The applicant then sought a review of the refusal by the Refugee Review Tribunal ("the Tribunal"), which affirmed the delegate's decision on 24 September 1999. On 14 October 1999 the applicant made his application to this Court. 2 The applicant is a national of the Peoples Republic of China ("the PRC") and is of Han ethnic background. He describes himself as a devout Roman Catholic, and claims to have been baptised in 1981 at the age of four. The applicant's evidence is that, in 1995, the Catholic church which he and his family attended was shut down by government authorities on the ground that it was not a registered church. The applicant then assisted his family to move the church to a warehouse in his father's factory, where the members continued practising their religion. During that time, the applicant said, he delivered brochures about Roman Catholicism to people in the area and encouraged his school friends to join that Church. In 1997 members of the applicant's church became concerned that officials of the Chinese Communist Party were corrupt, and produced and distributed brochures exposing and seeking to combat the corruption. The applicant claims to have assisted in editing those brochures and in distributing them. Later, the Chinese authorities arrested two of his friends who had printed the brochure, and he thus went into hiding for two months before obtaining an Indonesian passport. Then, on 3 December 1997 the applicant left the PRC and flew to Indonesia to be with his grandfather, after his parents had told him it was not safe for him to remain in the PRC. After staying in Indonesia for three days, he left to come to Australia because he perceived that the unrest and antagonism towards the Chinese in Indonesia made it unsafe for him to remain there. 3 The applicant's evidence before the Minister's delegate was that, once the PRC authorities became aware of the brochure detailing the corruption in government; "They were angry and prosecuted the editors and organisers of the brochure. I was one of them. They claimed that Roman Catholics was against law and the brochure was anti-revolutionary propaganda. They accused us that our real purpose was to overthrow the socialist system under the leadership of Communist party." At the hearing before the Tribunal, the applicant stated that he could not go home as his name was on the arresting list because he "was doing things for the religious activity" in exposing the corruption as "in the pamphlets it says based on the Roman Catholic, the Bible told us how to behave, how to be a good person, but that official, he did the wrong thing. So that's the comparison." 4 The Tribunal, in its reasons for decision affirming the delegate's decision not to grant a protection visa, doubted the applicant's credibility in respect of several matters which were said to bring him within the definition of "refugee" in Art 1A of the Convention.. In particular, the Tribunal did not accept the applicant's claim to be a practising Roman Catholic. In this respect the Tribunal said; "I do not accept that the Applicant is a practising member of the Roman Catholic Church, who has attended services regularly since he was four. The answers the Applicant gave to both the Delegate and me, when questioned about his general religious knowledge showed only the most basic appreciation of Christianity, let alone Catholicism. His knowledge of the bible appeared non-existent, but he did appear to have a limited understanding of the resurrection. I cautioned myself, when considering his evidence, that I could not expect a high level of knowledge of Catholic teaching from a person of the Applicant's background. His statements that he had never eaten or drunk anything while at Mass, and his assertion that a female accountant was the Bishop of his Roman Catholic Church, led me to conclude that he was not, and had never been a practising Roman Catholic. The celebration of the Mass involves the consumption of bread and wine, believed to be trans-substantiated into the body and blood of Christ. Similarly, the Roman Catholic Church, worldwide, is stout in its resistance to women clergy. The Applicants assertion that he has never eaten or drunk anything while at Church is utterly inconsistent with his assertion that he is a practising Catholic who regularly attended mass. His statement that the Bishop of his Church was a female underlines the falsity of this assertion." 5 The Tribunal also questioned the consistency and accuracy of the applicant's evidence, particularly in relation to the distribution and editing of the anti-corruption brochure, his accounts of the arrest of people for publishing and distributing the brochure and his introduction of new facts at the hearing. The Tribunal concluded; "All of these factors combined: the inconsistencies, the previously unstated details, the errors attributed to mistakes in translation, the applicant's apparent desire to change the emphasis away from religion, and my conclusions on the issue of the Applicant's claim to be a dedicated Catholic, led me to conclude that the Applicant's evidence could not be relied on." 6 As a result, the Tribunal found, given its finding that he was not and never had been a practising Catholic, that the applicant would not suffer from persecution on the ground of religion if returned to China. In relation to the applicant's claims of a well-founded fear of persecution by reason of his political opinion, the Tribunal stated; "First, I should again make it clear that I do not accept the Applicant's evidence that he gathered information for or distributed such a brochure and, on that basis alone, I am satisfied that the Applicant does not have a well-founded fear of persecution should he return to China on the basis of imputed political opinion. Even if that were not the case, the country information available to the Tribunal indicated that the Chinese Government has embarked on a large anti-corruption drive, and is encouraging the reporting of and prosecution of corrupt officials. The Applicant's evidence is entirely inconsistent with this. If the Applicant had distributed a brochure as he claims, given the anti-corruption movement in China, I am satisfied that the Applicant would not have a well-founded fear of persecution in the reasonably foreseeable [sic] should he return to China on the basis of a political opinion imputed to him." 7 The Tribunal also dismissed the applicant's claim of a fear of persecution on the ground of his membership of a particular social group, being the group that distributed the brochures, stating that it rejected his evidence in relation to the brochures. 8 Finally, the Tribunal considered whether the applicant had a well-founded fear of persecution by reason of the fact that he had left the PRC illegally, using a false Indonesian passport to travel to Indonesia and then to Australia. The Tribunal acknowledged the existence of country information indicating a real chance that the applicant might be prosecuted and punished for illegally departing the PRC. However, in the Tribunal's view that would be a penalty imposed pursuant to a law of general application and not persecution for a Convention reason. Moreover, it found; "There is nothing in the information available and evidence before me which indicated that the Applicant's profile is such that he is likely to attract the attention of the Chinese authorities. He has not been involved in high profile political dissent either in China or Australia, and it appears the principal illegality he has participated in is receiving and using a false passport in order to leave China. On the information available to the Tribunal he does not have the sort of political profile which would motivate the Chinese authorities to act harshly against him. … Even if I concluded that because of his illegal departure the Applicant would face punishment sufficiently serious to amount to persecution, I do not accept that it would be for a Convention reason. There is no evidence before me that would indicate the Applicant is a member of any particular social group, or that there is another Convention reason, that would lead to him being differentially treated when being punished for illegally departing."