THE APPEAL
23 Counsel for the applicant identified the issues arising on the appeal as being:
· Whether the Tribunal's reasoning supported the Federal Magistrate's finding that the Tribunal lawfully considered and addressed the causal connection between the applicant's religion and the persecution that she claimed to fear.
· Whether there was a reason, "truly independent" of the findings covered by the first issue, for the Tribunal's finding that the applicant did not have a well-founded fear of persecution for a Convention reason.
· Whether the Federal Magistrate was correct in holding that the Tribunal had not breached s 425(1) of the Act in coming to its decision.
24 In dealing with the first issue the applicant submitted that the Tribunal had failed to consider that the immediate cause of the applicant's arrest may not have been the real or operative cause or that there could have been more than one operative cause. She submitted that it was "simply not open to the Tribunal" to isolate the reasons for detention from the reason for the persecutory conduct which followed.
25 In supporting her arguments on the first issue the applicant placed principal reliance on two decisions of this Court. The first was Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28. The other was Okere v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 112.
26 In Paramananthan a young Tamil man had been detained in Sri Lanka because he was a Tamil who was suspected of being sympathetic to a Tamil organisation which was opposed to the government. Whilst in detention he had been beaten and tortured. The Tribunal had rejected his claim for a protection visa on the basis that he was the victim of "indiscriminate cruelty" while in detention. The Full Court held that the Tribunal had erred in approaching the matter in this way. Wilcox J (at 39) said that:
"…. the fact that people have been selected for detention on the basis of their ethnicity or perceived political opinion makes it important for a government to ensure there is no abuse of the power of detention. The people who are at risk of "indiscriminate cruelty" have been selected on a basis mentioned in the Convention." (Emphasis in original).
27 Lindgren J (at 43) posited a hypothetical example in which a person was initially detained because of his membership of a particular social group and was thereafter held in order to extract bribes from his friends and relatives. Such detention would, his Honour held, amount to persecution for a Convention reason because "the initial arrest and detention would be on account of membership of a particular social group and … the mistreatment was not the isolated and unforeseeable act of an individual member of the security forces, but was sufficiently common for it to be said that there was a well-founded fear of its occurrence."
28 In Okere Branson J referred to what her Honour described as a "false dichotomy" which had been drawn by the Tribunal in that case. It had sought to distinguish between harm which the applicant in that case feared for reason of his religion and harm faced by reason of what he had done as an individual. Her Honour cited the example of a person who is persecuted for failure to attend government propaganda sessions on Sunday mornings because he feels obliged to attend a Christian religious service which is was held at the same time. If such a person were to be persecuted for failing to attend the propaganda session such persecution would, albeit indirectly, occur for reason of religion.
29 The Tribunal, in the present case, was alert to the possibility that a person may fear persecution for a range of reasons, not all of which were reasons recognised by the Convention. It directed itself that "persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution fear…". It specifically referred to s 91R(1)(a) of the Act which implicitly acknowledges the possibility of multiple reasons (Convention-related and not Convention-related) which may lead to persecution.
30 The Tribunal turned its attention to the question of whether the applicant had been persecuted for a Convention reason whilst in China in paragraph [105] of its reasons (see above at [4]). The applicant submitted that the Tribunal can be understood as accepting that the applicant had been detained because of her religious beliefs and that she was thereafter held in detention in an attempt to extract a bribe from her. The Minister, on the other hand, contends that the paragraph records a finding by the Tribunal that the applicant was not detained for reasons relating to her religious belief but because of a desire to extract a bribe from her.
31 In my view a careful reading of paragraph [105] supports the Minister's contention. The paragraph starts by recording the applicant's claim that she had been detained for telling Bible stories to her students. It then records that the applicant agreed that such conduct by teachers was prohibited in China. The Tribunal accepted, on the basis of country information, that Chinese police officers are known arbitrarily to detain people. It then continued:
"However the fact that she was not charged, was released on payment of a bribe to a particular officer …, was never again questioned about her religious activities and was able to resume those activities unhindered when she chose suggests that she was not detained for reasons of religion but most likely in order to extract just such a payment from her."
32 Although it may have expressed its reasoning with greater clarity, I understand the Tribunal, in the passage just quoted, to have made a finding. That finding was that the original detention of the applicant occurred for one reason only. That reason was a desire to extract a bribe from her. The finding involved an explicit rejection of the applicant's claim that she had been detained "for reasons of religion". The Tribunal's finding was open to it for the reasons which it gave.
33 The finding that the applicant was not initially detained for a Convention reason distinguishes the facts of the present case from those obtained in Paramananthan where the young Tamil man had been taken into custody because of his ethnicity and perceived political views and was seriously abused while detained.
34 Okere is also distinguishable because the Tribunal's finding negatives the possibility that this is a case of "indirect" persecution for reason of religious belief.
35 The second issue raised by the applicant is related to the first. It was developed, in the applicant's written submissions, in these terms:
"Had the Tribunal decided that the police had in the past sought to extract a bribe from the applicant after having arrested her for reason of her religious activities, it may also have decided that her religion may in the future act as a pretext for similar extortion, whether or not she was permitted to teach children and whether or not anything had happened to her in the three years between her arrest and departure for Australia …".
36 As can be seen, the applicant's argument proceeds on the false assumption that the Tribunal had accepted the applicant's claim that a reason for her arrest and detention was her religious views.
37 The Tribunal's finding that the applicant had not been persecuted for a Convention-related reason in the past denies the applicant any scope to argue that her detention in 2004 supported her claim to face a real chance of persecution for reasons of religion should she return to China.
38 The third issue raised by the applicant concerned compliance, by the Tribunal, with the obligations imposed on it by s 425(1) of the Act. That provision required the Tribunal to invite the applicant "to give evidence and present arguments relating to the issues arising in relation to the decision under review." She contended that the Tribunal had erred by not raising with her the question of whether the police's motivation for extorting money from her had a Convention nexus. Its failure to do so, so it was submitted, denied her the opportunity to make submissions on the issue of Convention nexus, a central element of her case.
39 The applicant relied on a passage from the joint judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163-4 where their Honours said:
"Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness."
40 When the applicant gave evidence to the Tribunal, the member drew her attention to her claim that she had been detained for two months in 2004. The Tribunal member then asked these questions:
"Why did the police have an interest in you at that time? Why did they decide to detain you at that time?"
The applicant responded that the police had said that she had "evangelised to the kids in the school." The Tribunal member then asked:
"So was that something that was against rules for teachers, or was this something that teachers normally were not allowed to do by the Education Department?"
The applicant responded:
"I think that was the case, you should not evangelise to people under 18."
41 The applicant could have been under no misconception, at the time of the Tribunal hearing, that her detention in 2004 was a matter of disputed fact. This was because the delegate had found that she had not been so detained. The Tribunal member ensured that the issue was further explored by raising it at the hearing. The Tribunal was not required to tell the applicant why it considered the issue to be important: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at 302. Nor was the Tribunal under an obligation to tell the applicant how its findings on the factual issues might be deployed in its process of reasoning: SZBEL at 166. It did not make its decision on the basis of an adverse finding on a factual issue which it had not raised with the applicant.
42 The Tribunal did not fail to meet the obligations imposed on it by s 425(1) of the Act. The Federal Magistrate was correct so to hold.