SZNZN v Minister for Immigration and Citizenship

REFUGEE REVIEW TRIBUNAL 6 On the basis of his knowledge of Christianity, and the detailed description that he had given of his baptism, the Tribunal accepted that the first appellant was a Christian, and that he practised his Christianity whilst living in Beijing. Similarly, on the basis of the second appellant's evidence, the Tribunal accepted that she was also a practising Christian. However, the Tribunal did not accept that the first appellant was baptised into the Recovery Church or that he or his wife were members of the Recovery Church or Shouter Church. In particular, it found that the appellant's knowledge of the Recovery Church was lacking for someone who has allegedly been a member of this church for over seven years and routinely held gatherings in his home for nearly eight years. The Tribunal had regard to the first appellant's evidence that since living in Australia he had participated in Recovery Church gatherings. However, as it found that he had engaged in this conduct for the purpose of strengthening his claims to be a refugee, it disregarded this conduct pursuant to s 91R(3) of the Act. 7 The Tribunal also had serious doubts that the first appellant was arrested on 1 April 2007, as claimed. The Tribunal found the first appellant's evidence concerning his arrest and detention to be implausible and far-fetched in some aspects, and did not accept that he was detained and physically abused in the way that he claimed. Further, the Tribunal stated that even if it were accepted that he may have been arrested and briefly detained in Beijing in April 2007 because he was holding an unregistered religious gathering at his home, it did not accept that he faces a real chance of persecution if he returns to China now or in the reasonably foreseeable future. The Tribunal did not accept that the first appellant was physically abused whilst in detention, nor that he was not charged with any offence because his family sought the assistance of an official to facilitate his release. Accordingly the Tribunal did not accept that his detention constituted serious harm as defined in s 91R(2) of the Act. For these reasons, the Tribunal also did not accept that the appellants' business was closed down by the authorities. 8 The Tribunal accepted that in July 2007 the first appellant went to Russia, and that he may have made inquiries concerning a possible stay in Russia. However, it did not accept that the first appellant was pursued by the authorities after his alleged arrest in Beijing. The Tribunal was satisfied that the first appellant was of no further interest to the authorities after his arrest in April 2007 and that if he returned to China, he would not face a real chance of persecution, now or in the reasonably foreseeable future. Having regard to country information about freedom of religious worship in Fujian Province, the Tribunal was also satisfied that if he returned to Fuqing he would be able to practise his religion freely. 9 For these reasons, the Tribunal was not satisfied the appellants were persons to whom Australia has protection obligations under the Convention, and affirmed the decision under review.

FEDERAL MAGISTRATES COURT 10 On 26 October 2009 the appellants filed an application for judicial review of the Tribunal's decision. In an amended application filed on 22 December 2009 the appellants contended that: 1. The Tribunal failed to truly engage with the claim presented by the applicant and attend to its statutory obligations when it did not take into account the release certificate, notice to family member of the detainee and checklist for items seized which teh (sic) applicant had provided to the Department. It thereby fell into jurisdictional error. 11 The Federal Magistrate noted that although the appellants did not elaborate on this ground in submissions, it was apparent that it related to the following documents provided in support of the protection visa application: · a notice to the family member of the detainee from the PSB dated 1 April 2007; · a copy of a "checklist" of items seized from the first appellant by the PSB dated 1 April 2007; and · a release certificate said to be issued by the PSB dated 14 April 2007. 12 The Federal Magistrate noted that although these documents were set out in the Tribunal's description of the evidence before it, no express findings were made as to the authenticity of these documents or in relation to whether or not they corroborated the first appellant's claim that he was arrested and detained. 13 Her Honour found, however, that these documents were immaterial to the outcome of the Tribunal's decision. Her Honour referred to the Tribunal's decision where it stated that even if it accepted that the first appellant had been arrested and briefly detained in Beijing in April 2007 because he was holding an unregistered religious gathering at his home, it did not accept that he faced a real chance of persecution if he returned to China now or in the reasonably foreseeable future. Accordingly a failure to consider these documents did not constitute jurisdictional error, as they merely sought to corroborate the appellant's claim to have been detained. Further, even if it could be said that the Tribunal's failure to engage with these documents in part of its decision did constitute error, no useful outcome could ensue from remitting the matter for reconsideration, as engaging with the documents could not make any difference to the result and relief should be refused on this basis. 14 The Federal Magistrate also considered the grounds raised by the appellants in their original application, namely that the Tribunal had misunderstood the first appellant's claims, and had failed to comply with s 91R(3) and s 424A of the Act. In this respect, her Honour found in summary that: · there was nothing in the material before the court to demonstrate that the Tribunal misunderstood the first appellant's claims, let alone that it did so in a manner demonstrating or constituting jurisdictional error; · an inference should be drawn that the Tribunal did not consider that the evidence about the existence of similar claims or the results of the Document Examination Unit examination of the appellant's detention and release documents "would" be the reason or part of the reason for affirming the delegate's decision so as to bring about an obligation under s 424A of the Act; and · there was no error in the Tribunal's application of s 91R(3) of the Act. 15 Having found that the Tribunal decision was not affected by jurisdictional error, her Honour dismissed the application for review.

APPEAL TO THIS COURT 16 The appellants annexed an amended Notice of Appeal to the Outline of the Appellants' Submissions filed on 13 September 2010. I gave leave for the Amended Notice of Appeal to be filed at the hearing. 17 In the Amended Notice of Appeal the appellants raised the following grounds of appeal against the decision of the Federal Magistrate: 1. Her Honour the learned Federal Magistrate in the Court below erred in not finding that the second respondent's purported decision was vitiated by jurisdictional error in that the second respondent failed to take into account relevant corroborative evidence. Particulars i) The appellants gave the Tribunal two summon (sic) issued by the police in China - after the first appellant had been arrested and released - requiring the first appellant to attend at a police station. These summons (sic) were clearly evidence of the continuing interest of the police in the appellants and their activities. ii) The Tribunal did not consider these summons (sic) iii) The failure of the Tribunal to consider these summons (sic) could have, and in fact did, contribute to the Tribunal's finding that the appellants were not of continuing interest to the police after the first appellant was released. 2. Her Honour erred in not finding that the second respondent breached section 414 of the Migration Act 1958 in that the second respondent did not review the RRT-reviewable decision pursuant to a valid application by the appellants. Particulars i) The appellants were Christians in the general sense, in China. They worshipped at home where other Christians from all denominations were welcome, including Catholics. The belonged to a small "local family church". They were not "Shouters" or members of the Local Church, and did not claim to be so. (emphasis in original) ii) The appellants were persecuted by the police because they were perceived by the police as belonging to the Shouters and an evil cult. iii) The appellants' claims for protection were based on this perception by the Chinese police. iv) The Tribunal failed to consider this claim. The Tribunal instead (and wrongly) considered a claim not made by them that they were Shouters. The Tribunal found the appellants were not Shouters and were only members of a local church. 3. Her Honour erred in not finding that the second respondent breached section 91R(3) of the Migration Act 1958. Particulars i) In support of their claim that they are Christians, the appellants provided evidence of their attendance at a church in Melbourne. ii) The Tribunal did not take this evidence into account as the Tribunal held it was not satisfied that this conduct was other than for the purpose of strengthening the appellants' claims to be refugees. The Tribunal came to this finding on the basis that the Tribunal found that the appellants were not members of the Local Recovery Church or Shouters in China as claimed by the appellants. iii) The appellants did not claim they were members of the Shouters in China. iv) The Tribunal cannot be said to be satisfied or not satisfied as to whether the appellants' conduct in Australia was other than for the purpose of strengthening the appellants' claims to be refugees. 18 The appellants sought the following orders: 1. An order setting aside the purported decision of the second respondent. 2. An order setting aside the judgment and orders of the Federal Magistrates Court below. 3. A writ of mandamus directing the second respondent to determine the matter according to law. 4. Costs of these proceedings. 5. Costs of the proceedings in the Federal Magistrates Court below. 6. Any other orders the honourable Court deems appropriate.

CONSIDERATION 19 It is appropriate to consider each of the appellants' grounds of appeal in turn.

Ground 1: Failure to take into account relevant considerations and evidence 20 This ground of appeal relates to the failure of the Tribunal to consider the two summonses issued to the first appellant by the PSB in China. 21 The following facts appear to be common ground between the parties: · Included in the material submitted to the Department, and provided in the Department's file to the Tribunal, were two summonses issued in 2007 requiring attendance by the first appellant at the PSB "for penalties regarding involvement in unlawful religious activities". · These summonses were not translated into English, and appeared in the material before the Tribunal in their original form. · The second of the summonses may have been translated into English and delivered to the Department in October 2008, prior to the decision of the Tribunal delivered 28 September 2009. 22 It is clear from its Reasons for Decision that the Tribunal did not see the summonses on the file. In para 61 and para 62 the Tribunal said: [61] The applicant stated that he returned to China in August 2007. He stated that he did not practise his religion whilst in Russia because they did not have his church there. The Tribunal asked the applicant if anything happened in China whilst he was in Russia. The applicant stated yes. The PSB sent his wife two notices to tell him that he should go to the police station again. His wife received these notices in May and July. The Tribunal noted that he was in China in May and for sometime in July. The applicant stated that his wife received the summons and he dared not report to the police station as required. The Tribunal asked the applicant if anything happened as a result of his failure to respond to these summons. He stated that his wife went to see the contact and she said not to worry and don't go because it was probably just a formality. The Tribunal queried why the police would issue a summons for him to attend the police station if they intended for it to be ignored. The applicant stated that the issue of PSB he did not know. The Tribunal asked the applicant if he had copies of the summons that were issued to him. He stated that he should have had these. The Tribunal noted that they had not been submitted. He stated that he had submitted the originals and it was a bit like a written notice. The Tribunal put to the applicant that it had not seen any summons and outlined the documents which were on file. The applicant stated that he would have to ask his agent. [62] The Tribunal asked the applicant if he had any trouble re-entering China after departing from Russia. The applicant stated that he experienced no difficulties. The Tribunal put to the applicant that given that he had failed to respond to the two summons to present himself at the police station, it would have thought that he would encounter some problems on his return to the country. The applicant stated that he was not sentenced or wanted so there was no difficulty re-entering the country. It was just a formality. He was just a Christian and attended church activities and they wanted him to go there so they could brainwash him. His contact told him not to go. In China a person hides for a while and the fire disappears and things would be okay. 23 It is also clear from the Reasons for Decision that the Tribunal did not believe that the first appellant had been issued with summonses. At [129] the Tribunal states: The Tribunal does not accept the applicant's claim that whilst he was in Fujian and Russia the applicant wife received two summons in May and July requesting he report to the police station. The Tribunal finds the applicant's claim that he was advised by his contact to ignore these documents because they were just a formality to be far-fetched given that there would be no point in the authorities issuing the documents if the intention was for them to just be ignored. The Tribunal also finds it implausible that if there were two summons for the applicant to report to police he would have been able to depart and return to China without any difficulty at all. The Tribunal therefore does not accept that the applicant was pursued by the authorities after his alleged arrest in Beijing. 24 At [30] of her decision the learned Federal Magistrate noted that the Tribunal had not accepted that the second appellant had received two summonses for the first appellant to attend the police station. 25 In summary, the appellants submit that: · The Tribunal failed to have regard to the summonses issued to the first appellant. · This failure infected the decision of the Tribunal, and the Federal Magistrate erred in not finding that the Tribunal's purported decision was vitiated by not taking into account corroborative material in a manner constituting jurisdictional error. · Although the Tribunal did not accept that the first appellant had been issued with the two summonses, it was not open for the Tribunal to reach that conclusion without having regard to the corroborative material before it, namely the two summonses on the Department's file. That a conclusion by the Tribunal on these terms would constitute jurisdictional error is clear from the decision of the Full Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [2]. 26 In considering this ground of appeal I note that first, as Gummow and Hayne JJ explained in Abebe v Commonwealth (1999) 197 CLR 510 at 576: The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. 27 In this case it was for the appellants to substantiate their case to the Tribunal, including production of evidence for consideration by the Tribunal. 28 Second, the facts clearly demonstrate that the relevant summonses, while apparently included in the material before the Tribunal, were not translated into English. As a general proposition, while s 414 of the Act requires the Tribunal to review decisions of the Minister, it is not for the Tribunal to arrange to have material on the file translated where the relevance of the material is not explained: Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25]. In this case, in light of the obligation on the appellants to make their own case, it could not be expected that the Tribunal would take the appellants through the file on a document by document search in an endeavour to locate the summonses when they were not apparent, in English, on the face of the file. To the extent that the Tribunal was obliged to ask the appellants about the location of the summonses because the appellants' case clearly relied in part on the existence of those documents, I consider that the Tribunal discharged that obligation when it put to the first appellant that it had not seen the summonses and outlined the documents on the file. That this is so is also clear from: · The fact that, when the Tribunal specifically asked the appellants about the whereabouts of the summonses, the final answer given to the Tribunal was that the appellants would need to ask their migration agent. To that extent, there is no evidence (unlike, for example, in SZLSW v Minister for Immigration and Citizenship (2008) 103 ALD 580) that the Tribunal was taken to the summonses and the relevance of those documents explained despite the lack of translation. In those circumstances it is not surprising that the Tribunal should have concluded that the summonses were not in the material before it. · The fact that relevant documentation from the Tribunal which was before the appellants referred to the need for material upon which the appellants were relying to be translated into English (for example, Section E of the Application for Review, the letter of 1 December 2008 from the Tribunal to the appellants' migration agent, the letter of 15 December 2008 from the Tribunal to the first appellant, the letter of 20 August 2009 from the Tribunal to the appellants). That the appellants recognised this need is illustrated by the fact that the statement of the first appellant annexed to the Application for Review dated 15 November 2008 includes an English translation initialled by the first appellant. 29 Third, in any event it is clear that the Tribunal directed its mind to the possibility that two summonses had been issued to the first appellant as the appellants claimed, but nonetheless the Tribunal did not accept that these summonses had in fact been issued. At [129] of its Reasons for Decision the Tribunal said: The Tribunal does not accept the applicant's claim that whilst he was in Fujian and Russia the applicant wife received two summons (sic) in May and July requesting he report to the police station. The Tribunal finds the applicant's claim that he was advised by his contact to ignore these documents because they were just a formality to be far-fetched given that there would be no point in the authorities issuing the documents if the intention was for them to just be ignored. The Tribunal also finds it implausible that if there were two summons (sic) for the applicant to report to police he would have been able to depart and return to China without any difficulty at all. The Tribunal therefore does not accept that the applicant was pursued by the authorities after his alleged arrest in Beijing. 30 To that extent I accept the submission of Mr Potts for the Minister that no jurisdictional error has occurred in the decision of the Tribunal because, notwithstanding that the Tribunal has not sighted the two summonses, in fact the Tribunal has still considered the appellants' claim that the summonses were issued: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28]. 31 In my view this ground of appeal cannot be substantiated.

Ground 2: Failure to consider the appellants' claims 32 In summary, this ground of appeal relates to findings by the Tribunal, in the submission of the appellants in error, that the appellants claimed to be members of the "Shouters" church or the "Local Church" or the "Recovery Church" or the "Local Recovery Church", whereas in reality the appellants claimed to be members of "a local family church" in China, which was a multi-denominational church. 33 The contention of the appellants was that their fear of persecution in China was based on a perception by the Chinese authorities that they were members of the "Shouters" church, which, in the submission of the appellants, is regarded as a cult by the Chinese government. 34 In its reasons for decision the Tribunal accepted that the first appellant was "a Christian, and that he had practised his religion in China as a member of a house church, and not as a member of the Local Recovery Church as he claimed" (at [131], cf [117]). 35 The Tribunal noted in its Reasons for Decision that the Local Church in China does not refer to itself as the "Shouters" (at [99]). However in my view it is not surprising that the Tribunal formed the view that the first appellant claimed to be a member of the Shouters Church/Local Church/Recovery Church/Local Recovery Church in China. There was ample material before the Tribunal to support that conclusion including: · Statements by the first appellant to the Tribunal that, when the police visited his house in China, they saw a sign on the wall which stated "Local Recovery Church". Similar statements were also made in para 14 of the statement of the first appellant annexed to his Application for a Protection (Class XA) Visa. · Country information before the Tribunal, including information that "Shouters" are those who follow the teachings of Li Chang-shou (Witness Lee). · A letter by the first appellant to the Department of Immigration and Citizenship dated 8 April 2007 where the first appellant referred repeatedly to "local family churches" and also wrote: The reason why our church had always suffered persecution was because, Witness Lee, the leading church brother of our local family church, went to Taiwan in 1949. · Paragraph 5 of the statement of the first appellant annexed to his Application for a Protection (Class XA) Visa where he stated: The Bible we use at our church is the recovery edition of Holy Bible, the bible that contains significant amount of notation and explanation to the terminology. This Recovery Edition of Holy Bible was published with the great efforts contributed by Witness Lee and it was translated directly from Greek into Chinese, unlike ordinary Holy bible that was translated from Greek into English and then back to Chinese… · Paragraph 6 of the statement of the first appellant annexed to his Application for a Protection (Class XA) Visa where he stated: Our family churches were classified by the Chinese government as "shouters" and were banned by the Chinese government. · A subsequent paragraph numbered 6 and para 7 and para 8 in the statement of the first appellant annexed to his Application for a Protection (Class XA) Visa where the reference to "local family churches" appears to be a reference to an organisation distinguishable from, for example, the "government recognised church". · Paragraph 8 of the statement of the first appellant annexed to his Application for a Protection (Class XA) Visa where he stated: This is why local family meetings we belonged to were classified by the government as "shouters" anti government, heresy, evil institution, illegal gatherings and thus became a banned organisation. · The reference in para 12 of the statement of the first appellant annexed to his Application for a Protection (Class XA) Visa to "After brother Pinhua came to the church, our gathering place of Lord Recovery was established". · Findings by the delegate of the Minister that the appellants belonged to the Recovery Church, and the absence of any refutation of these findings in the Application for Review signed by the first appellant and dated 15 November 2008. · Reference by the Tribunal to evidence of the first appellant that since he had been living in Melbourne he had participated in Recovery Church gatherings there (at [121]). 36 In light of this material, I see no error in the decision of the Tribunal, or her Honour on review, finding that the appellants claimed to be members of the "Shouters" church or the "Local Church" or the "Recovery Church" or the "Local Recovery Church" in China. I do not accept the submission of the appellants that, in reality, they merely belonged to a "local", "family" church, and made no claim before the Tribunal to belonging to the organised Local Church in China. 37 This ground of appeal cannot be substantiated.

Ground 3: Failure to consider the evidence of first appellant in relation to his church attendance in Melbourne 38 Section 91R of the Act provides as follows: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 39 In para 121 of its Reasons for Decision, the Tribunal said as follows: The Tribunal notes that the applicant gave evidence that since he has been living in Melbourne he has participated in Recovery Church gatherings in Coburg. Based on the Tribunal's findings set out above that the applicant was never a member of the Recovery Church in China as claimed, and the fact that the applicant claimed in the hearing that the purpose of his trip to Australia was to see his children but he spent only three days with them in Adelaide, the Tribunal finds that the applicant travelled to Australia and made his way directly to Melbourne in order to participate in the Recovery church for the purpose of strengthening his claims to be a refugee. Although the applicant denied that his attendance at the Recovery Church was in order to bolster his claim for protection in Australia, for the reasons provided above the Tribunal is not satisfied that the applicant attended the Recovery Church in Australia otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention and thus pursuant to section 91R(3) proposes to disregard that conduct when examining whether he has a well-founded fear of persecution for a Convention reason. 40 In light of the ample material, some of which I have already noted, upon which the Tribunal could form a view that the appellants claimed to be members of the Shouters Church/Local Church/Recovery Church/Local Recovery Church, I see no error in the statement of the Tribunal at [121] of its Reasons for Decision, or in the findings of her Honour below at [59]. This ground of appeal cannot be substantiated.

CONCLUSION 41 The appeal should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.