Liu v Minister for Immigration & Multicultural Affairs

the submissions on the review 10 The applicant submits that for the purposes of s 476(4)(b) of the Act, the RRT based its decision on the existence of facts which did not exist, namely that the applicant was a resident of Hebei Province in the PRC. 11 In consequence, the implicit finding that the applicant will suffer no difficulty in respect of his religious beliefs in the PRC, on the basis that he is not a Catholic and it is Catholics in Hebei Province who are likely to be targeted for breaching regulations related to religious practice, is unsupportable. 12 The material supports a finding that the applicant was a resident of Henan Province and had been employed in that province with the Henan Zhengzhou Acrobatics Troupe of Zhengzhou City, Henan Province, PRC. There was also evidence of government action against Christians in the PRC in the US Department of State, "China Country Report on Human Rights Practices for 1998" ("US Country Report") under Freedom of Religion, which contained the following : "... Some house church members maintained that authorities had renewed efforts in the last half of the year to register house churches and to harass those who resist, especially in Henan and Shandong provinces. ... In October and November, approximately 140 house church worshipers were detained in central Henan after attending services that attracted participants from other provinces and from outside China. ..... In some areas, security authorities used threats, demolition of unregistered property, extortion of 'fines,' and interrogation to harass religious figures and followers. ... In particular, authorities targeted unofficial religious groups in Beijing and the provinces of Henan and Shandong, where there are rapidly growing numbers of unregistered Protestants, and Hebei, a centre of unregistered Catholics. In Henan there were reports that police raided two house church services and detained approximately 140 worshipers, beating some of them in the process. …" 13 The applicant further submits that the RRT based its decision on the following facts which did not exist : (a) the applicant was not a Christian before being taken into custody by officers of the Department; (b) the letter from the applicant's brother was provided for the express purpose of furthering the applicant's claim for a protection visa; (c) if the applicant was unable to obtain employment on his return to the PRC in Henan Province due to his religious beliefs, he would be able to seek employment elsewhere in the PRC. 14 The findings in paragraphs (a) and (b) above involve the acceptance or rejection of evidence before the RRT. The findings were open to the RRT. The facts claimed in paragraph (c) above do not reflect what the RRT in fact found. It found that if the applicant had been dismissed from his job as an acrobat, it was not for a persecutory reason and related to his abandoning his employment in Australia and not subsequently returning to it. The finding was that if his employment was no longer available to him as an acrobat with the troupe in Henan Province, he was in the same position as many other people and free to seek employment elsewhere in the PRC. That finding was open on the evidence contained in the US Country Report which stated : "... individual economic opportunities expanded in non-state sectors, resulting in increased freedom of employment and mobility. ..." 15 The applicant submits that the RRT applied the wrong legal test to determine whether or not conduct of a State amounted to persecution of a person for reasons of religion. He submits that it erred in holding that : (a) the applicant had no right to manifest his religious beliefs in ways that are not allowed by the State; (b) it was open to the State to prohibit religious behaviour in order to preserve good order and public safety and a decision to do so was not a matter coming within Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. 16 The RRT came to the conclusion which it did by reference to Article 18(3) of the International Covenant on Civil and Political Rights, which provides : "3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." 17 The applicant submits that the issue which the RRT is required to address in each case is whether the restrictions and sanctions imposed on Christians in the PRC are appropriate means of achieving a legitimate government object. This flows, he submits, from the following observation of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 - 259 : "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution Yang v Carroll (1994) 85F Supp 460 at 467. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race cf Korematsu v United States (1944) 323 US 214. However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny cf Shapiro v Thompson (1969) 394 US 618 at 634; City of Cleburne v Cleburne Living Centre Inc (1985) 473 US 432 at 440. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution." 18 In my judgment the starting point for a determination of whether conduct by a State amounts to persecution of a person or class of persons for reasons of religion is a consideration of the conduct in issue. If properly characterised, the conduct amounts to no more than governance of the church involving no prohibition on the practice of the person's religion, such conduct will not for that reason alone amount to persecution for a Convention reason: Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 (FC) at [41]-[42], [47], [57]. 19 The right to practice religious beliefs, in community with others, free from persecution was considered by a Full Court of this Court (Wilcox, Gray and Merkel JJ) in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599. Merkel J said : "69. The present case is concerned with the appellant's fear of the consequences of practising his religion as a Protestant Christian in community with others at an unofficial church, if he returns to China. As I shall explain, for the purposes of the Convention, the courts have generally taken a broad view of what constitutes the practice of religion. 70. The fact that persecution as a result of religious practice might occur indirectly through a government regulatory regime does not result in it falling outside the protection of the Convention. In Okere v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 678 at 681 Branson J observed: 'History supports the view that religious persecution often takes "indirect" forms. To take only one well-known example, few would question that Sir Thomas More was executed for reason of his religion albeit that his attainder was based on his refusal to take the Succession Oath in a form which acknowledged Henry VIII as head of the Church of England.' 71. Further, religious practice has not been treated as being confined to personal religious worship. In Fosu v Canada (Minister of Employment and Immigration) (1994) 90 FTR 182 the Federal Court Trial Division was concerned with a ban by the Ghanaian Government on some activities of Jehovah's Witnesses on the ground that they lead to social disruption. The Refugee Division had determined that the restriction on Jehovah's Witness religious activities by the Ghanaian government did not, under the circumstances, amount to persecution because there was no evidence that Jehovah Witness' could not individually pray to God or study the gospel. The Court found that the decision unduly limited the concept of religious practice by confining it to "praying to God or studying the Bible" and stated at 184-185: '…it seems that persecution of the practice of religion can take various forms, such as a prohibition on worshipping in public or private, giving or receiving religious instruction or the implementation of serious discriminatory policies against persons on account of the practice of their religion.' 72. The court concluded that the prohibition against Jehovah's Witnesses meeting to practice their religion could amount to persecution, and referred the matter back to be reconsidered. See also Irripugge v Canada (Minister of Citizenship and Immigration) (2000) 94 A.C.W.S. 3d 733. 73. Further, as was observed by the trial judge at [39] of his reasons, while religion is primarily a manifestation of a personal faith and of doctrine it also has a congregational or community aspect. His Honour's view is consistent with Art 18 of the Universal Declaration of Human Rights 1948 ("the Universal Declaration") which states: 'Everyone has the right to freedom of thought, conscience and religion: this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.' [Emphasis added] 74. Article 18(1) of the International Covenant on Civil and Political Rights is to similar effect. M. Nowak in U.N. Covenant on Civil and Political Rights: CCPR Commentary (1993) (at 312-314), after observing that freedom of religion is considered part of the "basic rights of communication" among individuals in a community, continued: 'Because basic rights of communication protect not merely the individual's spiritual existence but [also] communication of spiritual subject matter to the world at large and defence of a conviction in public, they are also termed "community rights". This means that in order to exercise these rights effectively - in particular, the freedoms of association, assembly, trade unions and religion - the individual requires a like-minded community. This collective character is particularly stressed in Art. 18(1) with the words "individually or in community with others"… This means that religious societies as juridical persons are also entitled to a subjective right to the exercise of their belief…' ..... 81. Accordingly, it is appropriate to consider Art 18 of the Universal Declaration and the objects of the Convention in interpreting Art 1A(2). When regard is had to those matters it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community." 20 Wilcox J arrived at a similar test and concluded : "10. As it seems to me, in this case the Tribunal adopted an unduly narrow interpretation of the word 'religion'. As Merkel J points out, the Tribunal posed for itself the appropriate question: 'whether the treatment (Mr Wang) has faced in China was persecutory or whether he could expect to face persecution if he returned there in the future'. However, the Tribunal never answered that question; instead it transposed the critical question into 'whether the applicant has been or would be deprived of his right to worship by acceding to the government regulations'. That substitution might have been acceptable if the word 'worship' had been accorded its full meaning, so as to include participation by Mr Wang in communal religious rites that were acceptable to him in form, and performed by people to whom he had no objection. But the Tribunal did not apply the word in that way. Mr Wang told the Tribunal member that 'he could not attend government-sanctioned churches because they were unable to teach all the necessary doctrines and because the State controlled the church. He could not worship faithfully in a registered church which was there to serve the purposes of the Communist Party'. The Tribunal member did not express doubt about Mr Wang's sincerity in making those claims, but found 'he would be able to resume his religious practices and beliefs, subject to some state controls but insufficient to deprive him of his right to religious freedom'. What type of 'religious' freedom is it, that limits the practice of communal rites to a service conducted by State-approved persons who substitute government propaganda for elements of theological doctrine?" 21 The RRT did not in the present case adopt such a test; it gave a far broader application to the restriction contained in Article 18(3) than the sub-article itself, provides for, and one which distorts the question to be answered for the purposes of Article 1A(2) of the Refugees Convention. Article 18(3) does not invest in a State a discretion to allow or prohibit the practice of religious beliefs depending upon the State's view as what are reasonable and necessary proscriptions to protect public safety, health, or morals or the fundamental rights and freedom of others. The test is not whether any law is persecutory, that is, in the view of the State necessary or reasonable to protect public safety and the like. Nor is the test whether it is reasonable or not for an individual to comply with such law to the extent that it impacts on the manifestation of his or her religious beliefs. 22 The correct question which the RRT should have addressed was whether the applicant could expect to face persecution for the practice of his Christian religious beliefs in the way which he wishes to practice them if he returned to the PRC in the future? That question falls to be determined as at the date of determination rather than the date of the application for a protection order: Lek v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 45 FCR 418 at 425. As the decision in Wang makes clear, the applicant has a fundamental right acknowledged in the Refugees Convention and Article 18(1) and (2) of the Covenant on Civil and Political Rights to hold and practice his religious beliefs. The question is whether there is a real chance he will be persecuted if he exercises such a right in the PRC. 23 The applicant is not disqualified from refugee status if, in fact, his adoption of Christian religious beliefs arose after his departure form the PRC or after his detention in Australia by officers of the Department as the RRT found, and that it is the voluntary adoption of such beliefs which gives rise to a real chance of persecution for those beliefs if the applicant is returned to the PRC: Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 868 at [28] affirmed on appeal (2000) 98 FCR 405; Wang at [83] - [88]. 24 Whether or not a claimant's past or proposed future conduct is genuinely in pursuit of his or her religious beliefs is a separate question. Merkel J said in Wang : "89. Of course, whether past conduct, or the proposed future conduct, is accepted by the fact finding tribunal as being genuinely in pursuit of a claimant's political or religious beliefs or convictions is a separate question. If it is not, the claimed fear of persecution for a Convention reason may be found not to be genuine or well founded and, as a consequence, the claimant will fall outside the protection of the Convention. Thus, conduct engaged in for the purpose of claiming the protection of the Convention or deliberate conduct to create the risk of persecution claimed to be feared, although not disqualifying factors, may be indicators that the subjective fear does not exist or is not well-founded: see Mohammed at 407 per Spender J and at 420 per French J. 90. However, as persecution can occur by reason of an imputed political or religious belief, the genuineness (or lack thereof) of a religious or political belief is not always determinative. As was observed (at 120) by Brooke LJ in Danian, referring to the decision in Bastanipour: 'In that case the court held that the central question was not whether an Iranian national's conversion (while in prison) from Islam to Christianity was sincere or genuine: rather, it was a question of how the purported conversion would be viewed by the authorities in Iran.' 91. Accordingly, although the RRT might have to determine, as a question of fact, the genuineness of a claimant's political or religious beliefs and convictions as a step in determining whether the claimed fear of persecution is for a Convention reason and, if so, whether it is well founded, it is not entitled to reject the claim because it regards it as unreasonable or unnecessary for the claimant to practice those beliefs or convictions." 25 In my judgment the decision of the RRT is vitiated because : (a) it is based on a fact which did not exist, namely that the applicant was a resident of Hebei Province and if returned to that Province would not, as a Protestant, in contradistinction to a Catholic, suffer persecution in respect of his Christian religious beliefs; (b) it applied an incorrect test to determine whether, if returned to the PRC, there was a real chance that the applicant would be persecuted for his Christian beliefs, on the assumption that those beliefs are genuinely held. 26 In my judgment each of these two errors could have affected the outcome of the case. In those circumstances, that is sufficient reason to order that the decision of the RRT be set aside: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 (FC) at 519. 27 In my judgment the other matters put forward as vitiating the decision of the RRT are without substance and would not of themselves entitle the applicant to the relief claimed. 28 The decision of the RRT given 19 November 1999 affirming the decision not to grant a protection visa will be set aside and the matter remitted to the RRT for determination according to law. Having regard to the findings as to credibility made by the RRT as constituted, the matter on remitter should be determined by a differently constituted RRT. Costs should follow the event. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Counsel for the Applicant: K Smith Solicitor for the Applicant: Hawthorne Cuppaidge & Badgery

Counsel for the Respondent: E Ford Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 20 July 2000 and 23 August 2000 Date of Judgment: 16 March 2001