MZZAS v Minister for Immigration, Multicultural Affairs and Citizenship

REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised) 1 This is an appeal filed on 29 April 2013 against the whole of the decision of the Federal Circuit Court, that decision being given on 9 April 2013. Although they were given ex tempore and revised, I find the reasons to be thorough. His Honour dealt with each of the grounds in the application for judicial review as those grounds are reproduced at [2] of his Honour's judgment: MZZAS v Minister for Immigration [2013] FCCA 184. 2 The grounds of appeal to this Court are: (1) I am under the serious risk of persecution once I back to China. RRT unvalued my situation. (2) I will experience fear and threat. The FMC didn't consider my case carefully. 3 The appellant is unrepresented before me and I make no criticism of him for the formulation of those grounds. He has done his best today to explain to me through an interpreter what he sees as wrong with both the Refugee Review Tribunal (Tribunal) decision and the decision of the Federal Circuit Court. The appellant was also unrepresented before the Federal Circuit Court although he was represented by a migration agent before the Tribunal. 4 That point is not insignificant, as Mr McDermott submitted, because the delegate's decision did give some indication to the appellant and those advising him of the matters he needed to address in his review to the Tribunal. The appellant has been assisted by an interpreter in the Mandarin language before me, as he was before the Federal Circuit Court and before the Tribunal. 5 I turn now to give some background to this appeal and the appellant's claim. The appellant is a citizen of the People's Republic of China and arrived in Australia as the holder of a student visa on 31 December 2007. After his student visa expired he applied to the Department of Immigration and Citizenship for a protection visa on 23 December 2011. A delegate of the Minister refused to grant a protection visa to the appellant and that refusal occurred on 15 May 2012. As was his right the appellant applied to the Tribunal for review of that decision on 11 June 2012. 6 He appeared at a hearing before the Tribunal on 8 August 2012 and I find on the basis of the Tribunal's reasons that the Tribunal thoroughly explored with him the nature of his claims. The Tribunal affirmed the delegate's decision on 14 August 2012 and on 18 September 2012 the appellant applied to the Federal Magistrates Court (as it then was) for judicial review. The appellant's claims to engage Australia's protection obligations have centred on two distinct claims which are reproduced at the Tribunal's reasons at [63]. 7 The appellant's first claim was that his father was unfairly charged with a crime he did not commit and that his father was arrested, detained, tortured, convicted and imprisoned. The appellant claimed that his brother had been followed as a result of trying to agitate for his father's innocence and that he, the appellant, would be subjected to similar treatment and perhaps imprisoned and tortured himself if he were to return to China and agitate for justice for his father. The appellant claimed that his father was falsely accused of the crime because he was owed money by a neighbour whose relative was a policeman. 8 The second and quite distinct claim made by the appellant was that he had converted to Christianity while in Australia and that if he went back to China he would suffer harm as a result of practising that religion in China. He claimed that he had heard in China that there were difficulties with people practising religious beliefs. He said to the Tribunal that in China "we use all sorts of reasons to - how I put it. Okay, he or she use this reason, you are a Christian and use this reason to persecute you": at [52] of the Tribunal's reasons. 9 As to the first claim, the one about his father, the Tribunal found that the appellant's claims were vague and lacking in detail in a number of significant respects. At [64] of its reasons the Tribunal listed some of those significant respects. They included that the appellant did not know where his father's farm was; that he did not know where his father was imprisoned; that the appellant's version given to the Tribunal was inconsistent with his application in a significant way, because his application nominated a term of imprisonment for his father of three years, and his evidence to the hearing nominated a term of imprisonment of five years. 10 At [65], the Tribunal also relied on a discrepancy between information in the appellant's application for his student visa, which indicated that his father was not a farmer at all. The Tribunal's reasons disclose careful questioning of the appellant about this at the hearing, and at [65] the Tribunal found it did not accept the appellant's explanation for the discrepancy. The Tribunal concluded at [67] that it was not satisfied the appellant's father was a farmer, nor accused of theft, nor targeted by the police or public security, and it did not accept that his father had been arrested, detained, and tortured, nor that his brother had been followed. 11 From that, the Tribunal found at [68] at a more general level that it was not satisfied the appellant or any of his family members had ever been targeted or had ever experienced difficulties of any sort with the Chinese authorities. The Tribunal found at [69] that, looking to the reasonably foreseeable future, it was not satisfied the appellant faced a real chance of persecution for reasons associated with his father, his religion or any other Convention reason. As to the appellant's second claim about being a Christian, the Tribunal found at [66] that the appellant was not, and had not ever been, a Christian. In that paragraph, the Tribunal explained by reference to a considerable amount of information given to the Tribunal as a result of questioning, why it was that the Tribunal was not satisfied the appellant was a Christian. 12 The Tribunal found that none of the appellant's answers were consistent with someone who claimed to be a Christian or had even the most rudimentary understanding of Christian practice. The conclusion reached by the Tribunal at [67], again, is that the Tribunal did not accept the appellant is, or ever has been, a Christian or has practiced the Christian faith in Australia or elsewhere. 13 The Tribunal also considered a claim by the appellant of fear of persecution by reason of his membership of a particular social group. This appeared to arise because of a question asked by the Tribunal: see the Tribunal's reasons at [45]. The Tribunal was correct to consider this claim since it is conceivable that it fairly arose on the material before the Tribunal. The claim was characterised by the Tribunal as being one that the appellant was a member of a social group constituted by persons who are owed money by family members of the police in China. The Tribunal was in essence constructing a social group on a hypothesis favourable to the appellant, namely that such a social group existed, although there was no material before the Tribunal to suggest that it did. 14 I consider the Tribunal was attempting to be as fair and generous as it could in exploring this aspect of the appellant's claims. Having done so, it was entitled to reject that third claim as it did. 15 I turn now to consider the reasons of the Federal Circuit Court. The learned Judge found there were no reviewable errors in the Tribunal's decision: at [42] of his Honour's reasons. He did so after considering each of the three arguments raised by the appellant, as well as considering, even though it was not raised by the appellant, first whether there was any denial of procedural fairness (at [14]) and secondly whether the Tribunal had lawfully assessed the appellant's entitlement to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (at [38]). 16 I find no errors in the approach taken by the Federal Circuit Court. As his Honour pointed out, the grounds raised by the appellant against the Tribunal decision amounted to an attack on the fact finding of the Tribunal in a way which is not permitted on judicial review. Essentially, the Tribunal did not believe the appellant on many of the factual aspects he relied on to support each of his claims. This was not a situation where the Tribunal accepted most of the factual matters put forward and rejected critical facts. The Tribunal disbelieved most of the appellant's account of why he feared persecution: see, for example, the Tribunal's reasons at [64] and [65]. 17 As the Tribunal itself pointed out (at [64]), it expressly did not focus on insignificant inconsistencies in the appellant's account. It is important that, in making findings of credibility, a decision-maker such as the Tribunal considers the totality of the material before it: Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [35]. I am satisfied the Tribunal took this approach and that is plain because the Tribunal tested a great deal of the appellant's evidence and gave him opportunities to explain omissions and inconsistencies. I am satisfied the Tribunal viewed his account as a whole before reaching its conclusions. 18 As to the Tribunal's approach on the appellant's first claim, in my opinion the Tribunal evaluated and tested the inconsistencies and omissions it saw in the appellant's various accounts, and reached a conclusion that was plainly within its jurisdiction. That conclusion was not to believe the key components of the appellant's account, and therefore not to believe the factual foundation for his claims. This is the fact-finding function reserved to the Tribunal and not to this Court: See Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J. 19 This is not the kind of case referred to by Robertson J in Minister for Immigration, Multicultural Affairs and Citizenship v SZRKT [2013] FCA 317 at [78], where his Honour found that a finding on credit in a minor matter of fact, leading to the rejection of an entire claim, may give rise to an error of a jurisdictional nature. This is not such a case. I have considered the Tribunal's approach to the appellant's claim to fear persecution by reason of him being a Christian. It is apparent from the reasons that the Tribunal engaged in substantial questioning of the appellant about his claim to be a Christian, and it is clear that the appellant's inability to answer many of those questions satisfactorily was significant to the Tribunal's assessment of the truth of his claims. 20 There are many authorities in this Court concerning the extent to which such questioning by the Tribunal is a permissible foundation to reject a claim. The authorities of this Court recognise that there are circumstances where close questioning by the Tribunal of an applicant about his or her religious beliefs may disclose a misconception by the Tribunal of its task, and therefore jurisdictional error: see the decision of the Full Court of this Court in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577, also a decision about a person from the People's Republic of China who claimed to be a Christian. 21 The Court divided two to one on the question of whether the kind of questioning disclosed by the Tribunal in that case was permissible or impermissible. However, the principles to be applied in answering that question were set out by Jacobson J at [6]-[10] of his Honour's reasons: 6 There are four essential principles which are relevant to the disposition of the appeal. Without seeking to depart from his Honour's statement of the principles or the full exposition of the principles in the various authorities, I will endeavour to encapsulate them as follows. 7 First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]. 8 Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant's answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 ("SZLSP") at [38]. 9 Third, where the Tribunal rejects an applicant's claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39]. 10 Fourth, where the Tribunal's rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal's assessment of the applicant's credit and the material upon which it relied to make that assessment. 22 Buchanan J, writing for the majority, also described the exercise to be undertaken by this Court in reviewing the questioning of the Tribunal in those circumstances at [40] of his Honour's reasons: 40 Before attention is given to the reason why the decision of the RRT was set aside by the FMCA (that it constructively failed to exercise its jurisdiction because it asked itself the wrong question) something should be said about the matter which prompted the FMCA's disapproval of the approach taken by the RRT - examination by the RRT of the bona fides of claimed religious belief and practice. The question of what standard of knowledge the RRT is entitled to expect of applicants for protection visas who claim a risk of persecution on account of their religious faith is a sensitive and difficult one. So far as the work of this Court, and of the FMCA, is concerned the central question for examination in any particular case where the issue requires attention is whether the approach taken by the RRT has led to jurisdictional error. Jurisdictional error is not established merely by distaste for the nature of the enquiry carried out by the RRT in the performance of its functions or the methods by which that enquiry is pursued. Nevertheless, there are limits to the licence which the RRT has in this area. In Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 ("Wang") Gray J made the following statements at [16]: The RRT receives many applications from persons who seek protection visas, claiming well-founded fear of being persecuted by reason of religion. It is inconceivable that every member of the RRT is properly equipped to assess each such applicant on the basis of the applicant's knowledge of the faith that he or she professes. Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion. 23 After referring to the Full Court case of SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495, a case about a claim of adherence to the Falun Gong religion, Buchanan J concluded at [49] and [50]: 49 The reasoning in SZLSP does not provide a close analogue with the present case because, in that case, one defect in the approach taken by the RRT was its failure to identify the material by reference to which its very briefly expressed conclusion, that the applicant did not have a sufficient knowledge of Falun Gong to claim likely persecution as a result, was reached. The present is not such a case. Nevertheless, the majority approach in SZLSP provides a recent example of the concern with which the Court will view an unwarranted use by the RRT of its inquisitorial powers. That concern was clearly reflected in the judgment of the FMCA now under appeal. 50 I take it to be established by the authorities to which I have referred that it is not impermissible, despite the observations of Gray J in Wang, for the RRT to enquire about the depth of knowledge possessed by an applicant for a protection visa when claims for the protection visa are based on the suggested likelihood of persecution for religious reasons. On the other hand, there must be a satisfactorily disclosed foundation from which any conclusion, that adequate knowledge is not held, may proceed. There must also be a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution. The material obtained by the RRT from its examination must not be put to use in a way which is so irrational as to suggest the absence of a proper foundation for the stated conclusions (see also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 ("NADH") at [110]-[121], [136]). 24 The exercise for me, then, is to look at the reasons of the Tribunal and ensure that they disclose questioning about the appellant's claimed religious beliefs which is rational and does not suggest the absence of a proper foundation for the conclusions stated by the Tribunal. I consider the Tribunal took a permissible approach in the questions it asked and put the answers to those questions to a permissible use in its fact finding. The Tribunal concentrated on very basic aspects of Christianity: for example, who Jesus was, what his place in Christianity is and what baptism is, especially given the appellant claimed to have been baptised. 25 There was no lack of proportion, nor any illogicality, which could suggest a miscarrying of the Tribunal's task in these kinds of questions. Rather, by its questioning and the appellant's answers, the Tribunal had a foundation in the material before it for the conclusions it reached. It is no small matter to disbelieve a person's claim to hold a religious belief. I agree, with respect, with the statement of Buchanan J in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 586-7 [40] that the question of what standard of knowledge can be expected of a person is a sensitive and difficult one. Nevertheless, I am satisfied that in this case the nature of the Tribunal's questions was permissible, and the answers given by the appellant provided a rational foundation for the conclusions the Tribunal reached. 26 For the reasons I have given, I find no error in the approach of the Federal Circuit Court, and I agree with its conclusion that the Tribunal's decision is not affected by any reviewable error. I had some concerns over his Honour's language at [16] of the reasons, but taking into account the following two paragraphs, I am satisfied there is no erroneous approach. In any event, there is no evidence the Tribunal imposed any onus of proof on the appellant. 27 I have not only considered the learned Judge's reasons for rejecting the application for judicial review, but I have considered the reasons of the Tribunal for myself, and I have tested some of my concerns with Mr McDermott. I saw that as appropriate, given that the appellant was unrepresented. Accordingly, for the reasons I have given, the appeal will be dismissed. There will be an order that the appellant pay the first respondent's costs of the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.