Wang v Minister for Immigration & Multicultural Affairs

78 See also Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430 at [35]. 79 The approach of going beyond the strict interpretation of the text of the Convention is consistent "with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if a court was required to construe exclusively domestic legislation": see Applicant A at 255 per McHugh J. See also Shipping Corp. of India Ltd v. Gamlen Chemical Co. Asia Pty Ltd (1980) 147 CLR 142 at 159 per Mason and Wilson JJ; Chan v. Minister for Immigration and Ethnic Affairs (1989), 169 CLR 379 at 412-413 per Gaudron J; Buchanan & Co. v. Babco Ltd [1978] AC 141 at 152. 80 The Preamble to the Convention refers to the Universal Declaration as "[affirming] the principle that human beings shall enjoy fundamental rights and freedoms without discrimination" and states that an object of the Convention is to "assure refugees the widest possible exercise of these fundamental rights and freedoms". 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. (b) Persecution by reason of future conduct 82 In the present case the claimant's fear is based on past persecution by reason of his religious practice and also upon future conduct, namely the intended practice of his religion at an unofficial church in community with others after his return to China. In determining whether there is a "real chance" of persecution for a Convention reason, evidence as to past events of such persecution is often the best evidence as to what is likely to occur in the future: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. However where, as in the present case, the fear is also based on conduct in which a claimant intends to engage upon return to the country of nationality, a question arises as to whether the claimant ought to desist from engaging in that conduct (in the present case, by practising religion at an official rather than an unofficial church) and thereby not create the circumstance that will give rise to the fear of being persecuted. 83 A number of cases have considered the question of whether a claimant ought to desist from engaging in conduct that will create the circumstance that results in that person's fear of persecution for a Convention reason. In Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 868 at [28] Lee J stated that recognition of refugee status (in that case, sur place) cannot be denied to a person because the person's voluntary acts in Australia have created a real risk that the person will suffer persecution occasioning serious harm if returned to the country of nationality. On appeal in Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405, a Full Court, by majority, upheld the decision of Lee J, holding that it was an error for the RRT to regard the question whether the claimant "acting solely out of desire to put himself in a position where he could claim to be endangered" as determinative of the question of whether that person was a refugee: see Spender J at 409 and French J (at 419-422). French J at 419-420 stated that the question to be answered, for example in the case of a political refugee, always remains the same: is there, at the time of determination of refugee status, a well-founded fear of political persecution? See also Spender J at 408. 84 Most recently, in Omar, the Full Court held that the likely future conduct of a Somali national, who feared that he would be persecuted if he returned to Somalia as he was a committed intellectual who would speak out against the local militias, could give rise to a well founded fear of persecution on Convention grounds. After reviewing the authorities, including Mohammed, the Court stated at [38] that: "the recent cases in England and in this Court stand for the proposition that possible future conduct, including a so-called 'spontaneous voluntary expression of political opinion', can provide an acceptable basis for a presently existing and well-founded fear of persecution for a Convention reason." 85 The Court added at [39] that there is nothing fanciful about the idea of persons with strong religious or political convictions having a fear of persecution founded upon "apprehensions of what they may do and what may happen to them if they come face to face with repression". Thus, the Court at [42] stated that an assumption that a person with a strongly held religious belief should act reasonably, and compromise that belief to avoid persecution, would be contrary to the humanitarian objects of the Convention. 86 The decision of Lee J in Mohammed was also cited with approval in Danian v Secretary of State for the Home Department [2000] Imm AR 96 at 119-120. The Court of Appeal in Danian held that in all asylum cases there is ultimately a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then the claimant is entitled to asylum. In Mohammed and Danian that entitlement was held not to be forfeited because the risk arises from the claimant's own conduct, however unreasonable. 87 In Secretary of State for the Home Department v Ahmed [2000] 1 NLR 1 (which was also cited with approval in Omar at [36] and [37]) the question was whether a Pakistani Ahmadi had a well founded fear of persecution on religious grounds although the applicant had never in fact been charged with any offence under Pakistani law. Rather, he claimed that his behaviour upon return in speaking out and spreading the Ahmadi faith would attract the hostility of those amongst whom he lived and cause the authorities to prosecute him under an ordinance directed toward suppressing preaching by Ahmadis. Simon Brown LJ (with whom the other members of the Court of Appeal agreed) stated: "it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities - if, in other words it is established that he would in fact act unreasonably - he is not entitled to refugee status. In my judgment the cases do not support the latter proposition and, indeed, were they to do so, they would clearly be inconsistent with [Danian]." 88 Omar, Mohammed, Danian and Ahmed are authority for the following propositions: · the question must always be whether the appellant has a well founded fear of being persecuted for a Convention reason; · the Convention, in seeking to protect fundamental rights and freedoms of individuals does not superimpose upon that protection a requirement that it is only available in respect of those rights and freedoms which are exercised reasonably. 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. Reasoning on the appeal 92 The RRT, in finding that the appellant had suffered a "stiff penalty" as a result of having been detained and mistreated by the authorities on account of his religious practices and activities as a Protestant Christian at an unregistered church, must be taken to have substantially accepted the appellant's version of events that led him to fear further religious persecution for the same reasons on his return. However, the RRT also found that the authorities will tolerate the practice by the appellant of his religion provided it accords with government regulations that required that religious activities be practiced only at churches registered according to Chinese law. Thus, although the registration process is administered by a Government Bureau through which the government "monitors membership in religious organisations, locations of meetings selection of clergy, publication of religious materials and funding for religious activities" and failure to register can result in fines, requisition of property and "forcible dispersal of religious gatherings, and, occasionally short term detention" the RRT stated that "registration as such" is not of itself persecutory of people of religious persuasion. The RRT equated the laws requiring registration with laws in Australia pursuant to which "buildings require permits", and noted that "local government and other planning agencies do not always accede to requests for such permits". 93 The RRT found that the appellant did not hold any "significant belief" that would prevent him from acceding to government regulations and practising as a Protestant Christian in China by participating in religious worship services at a registered Church. Accordingly, it concluded that the appellant would not face persecution in the future on account of his religion as "he would be able to resume his religious practice and beliefs, subject to some state controls but insufficient to deprive him of his right to religious freedom". 94 Early in its reasons the RRT posed the question for it as: "whether the treatment [the appellant] has faced in China was persecutory or whether he could expect to face persecution if he returned there in the future." 95 Plainly, the RRT was using "persecution" in the sense of persecution for a Convention reason. As was observed by the trial Judge, although the RRT posed the question it was required to answer, it did not answer that question. His Honour considered that the RRT implicitly answered the question by concluding that enforcement of a system of regulation of church governance in China, which involved government control of religion through the registration process, was not "of itself" persecutory, therefore enforcement of that system against the appellant does not constitute persecution of him by reason of religion. 96 In my view the RRT did not answer the question it posed for itself. Rather, it answered the separate question of whether the laws regulating religious practice were persecutory. The answer to the latter question might, in some cases, constitute an implicit answer to the former question if the laws in question were laws of general application. However, as explained above, they were not. 97 The appellant's claim was that his fear of persecution by reason of his religious practice was well founded. It was not determinative of that claim for the RRT to conclude, as it did, that as the laws regulating religious practice were not persecutory, enforcement of those laws against the appellant could not constitute persecution. The RRT's approach was erroneous as a fear of prosecution, punishment or mistreatment for breaching those laws was capable of constituting a well founded fear of persecution for a Convention reason. Whether in the appellant's case it does constitute such a fear was a matter required to be, but was not, addressed as a result of the RRT's erroneous approach. 98 The RRT also concluded that, as the appellant can practice his religion on his return to China at a registered church, any consequences flowing from the intended practice of his religion at an unregistered church is not persecution by reason of religion. The RRT's reasoning appears to have been that as the appellant can practice his religious faith at a registered church it is unnecessary for the appellant to practice his religious faith at an unregistered church. Thus, if he practices at an unregistered church his voluntary acts, rather that those of the authorities, will be the cause of the persecution feared by him. 99 However, as was made clear in Omar, Mohammed, Danian and Ahmed, the fact that the appellant has brought into existence, or intends to bring into existence, the circumstances that give rise to the fear of persecution by an unnecessary, or even an unreasonable, voluntary act may be relevant to predict what may happen and to the genuineness of a claimant's claimed beliefs and convictions that are said to give rise to a fear of persecution for a Convention reason, but are not determinative of whether the fear is well founded. As explained above, the question which the RRT posed, but did not answer, must always be whether the claimant has a well founded fear of persecution for a Convention reason. If that question is answered in the affirmative the protection of the Convention is not forfeited or lost by a determination that the fear has arisen as a result of unnecessary, or even unreasonable, conduct by the claimant. It is therefore not forfeited or lost by a determination that the appellant could exercise his religious practices and beliefs in a manner, and at a church, that is different from the manner and church in which he intends and wishes to practice his religion. 100 In the present case the RRT did not find that the appellant is not genuine in his intention to practice his religion at an unregistered church or that his wish to do so is merely a pretext for claiming refugee status. Rather, the RRT appeared to accept the genuineness of the intention of the appellant to practice his religious faith at an unregistered church, but that acceptance was to no avail as it found he could practice his religious faith at a registered church. 101 Further, the RRT considered the religious practices, beliefs and freedom of the appellant solely by reference to the first element of religion as that word is to be interpreted in Art 1A(2), being the personal manifestation or practice of religious faith and doctrine. The RRT erred in law in failing to regard the second element, being the manifestation or practice of that faith or doctrine in community with others, as falling within Art 1A(2). The RRT posed for itself the question of "whether the applicant has been or would be deprived of his right to worship by acceding to the government regulations". By answering that question in the affirmative by saying he can practice as a Protestant Christian at a registered church it is plain that the RRT, erroneously, was disregarding the community or congregational element of religious practice. As a result of the RRT's erroneous approach it did not consider whether persecution of the appellant by reason of his past and intended practice of his religion at an unregistered church, being the practice of his religion in a like-minded community, constituted persecution for reasons of religion. 102 Further, the RRT's erroneous approach in interpreting "religion" in Art 1A(2) was also a factor that led it to regard the Chinese laws in question as analogous to town planning laws and to then conclude that enforcement of the Chinese laws against the appellant for practising his religion at an unregistered church was not "persecution" by reason of the appellant's religious practice. 103 For the above reasons I have concluded that the trial judge's concerns about the RRT's decision were well founded but his Honour erred in not concluding that the reason for his concerns were the errors of law to which I have referred. The errors are reviewable errors under Pt 8 of the Act as they involve an incorrect interpretation of the applicable law (s 476(1)(e)); an incorrect application of the law to the facts found by the RRT (s 476(1)(e)); and a failure by the RRT to apply itself to the question prescribed by law (Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) SR (NSW) 416 at 420 and ss 476(1)(b) and 476(1)(c)). 104 I am also of the view that his Honour erred in concluding that he was bound to follow Zheng. The Full Court decision in Zheng was based on the finding of fact by the RRT that the essential differences between registered and unregistered churches related not to religious belief or practices but to "the governance of the church" and that the government regulation of the church was not persecutory. The Full Court concluded that as the RRT found there was no difference in religious practice between the two churches it was open to the RRT to conclude, as a matter of fact, that the claimant's fear of persecution, based on his wish to attend an unregistered church, was not for reasons of his religion. 105 The evidence and material before the RRT in the present case, which was not rejected by the RRT, points to significant differences between practicing religion at an unregistered and a registered Protestant Church. The trial judge pointed out that the Human Rights Watch Report on Religion, upon which the RRT relied and from which it quoted in its reasons, and other material before the RRT, including that from the appellant and his wife, pointed to significant differences between, and consequences following from, the practicing of religion by the appellant at an official and an unofficial churches. As explained above the practice of religion is not to be confined to its doctrinal aspects. Thus, it is fairly clear that there were significant differences between the material that was before the RRT in Zheng and the material that was before the RRT in the present case. 106 The Human Rights Watch Report on Religion explained the basis for the differences as follows: "Every important Chinese leader and religious official has stressed that no one in China is prosecuted for his or her religious beliefs but rather for suspected criminal acts. Tightening of control over religion, they maintain, has come only at the expense of illegal groups and illegal activities. There are two problems with that argument, however. One is that refusal to register and submit to the kind of intrusive monitoring outlined above is precisely what renders an organization illegal. The second is that for Chinese officials, religious belief is a personal individual act, and they distinguish between personal worship and participation in organized religious activities. It is the latter that they go to great lengths to control, not the former. The whole concept of religious freedom, however, involves not only freedom of the individual to believe but to manifest that belief in community with others. The government's argument that its control of religion is strictly in accordance with the law is not new; it argues the same when confronted with protests over its treatment of political dissent. But several elements of its policy on religion have changed. While lessening its reliance on arrests and detention, the government is enforcing requirements on registration more strictly than ever before." 107 While I accept that, as in Zheng, the RRT must be taken to have found that the appellant has no significant religious belief that would prevent him from practicing as a Protestant Christian at a registered church, it does not follow that it also found that there is no difference, as far as the appellant was concerned, between practicing religion, as that term is to be interpreted in Art 1A(2), at a registered and an unregistered church. 108 It follows from the foregoing that Zheng was a decision based on facts and material that, in part, overlapped with, but were distinct from, those before the RRT in the present case. The issue for the Court in Zheng was a question of fact, being whether the finding of the RRT that Mr Zheng was not prohibited from practicing his religion was open on the material before it. In The Little Company of St Mary (SA) Incorporated v The Commonwealth (1942) 66 CLR 368 at 378-379 Latham CJ observed that while it was open to a trial judge to be assisted by a precedent on a question of law, "on a question of fact precedents are not authority". Thus, although the trial judge observed, correctly in my view, that Zheng did not require a particular result in the present case, he was incorrect in his conclusion that nevertheless he was bound to apply or follow Zheng. 109 In any event, Zheng is not only a decision on a question of fact, but the Court in Zheng did not consider, let alone address, the issues of law arising in the present case cf: Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456 at [81]-[82]. In fairness to the Full Court in Zheng, those issues of law did not appear to have been raised or argued. 110 For the above reasons I have concluded that the trial judge erred in concluding that Zheng was an authority that he was bound to follow with the consequence that the review sought by the appellant must fail. For the same reasons I do not regard the decision in Zheng as a previous authority which should lead this Full Court to dismiss the appeal. If, contrary to my view, Zheng is authority for the proposition that church governance by registration, as such, is not persecutory as explained above, that does not resolve the issues arising for determination in the present matter. 111 Further if, contrary to my view, Zheng is an authority that is inconsistent with my decision on the issues of law arising on the present appeal, for the reasons I have given I am clearly satisfied that Zheng was wrongly decided on those issues: see Nguyen v Nguyen (1990) 169 CLR 245 at 268-270. Conclusion 112 I have concluded that the appeal is to be allowed, the orders of the trial judge and the decision of the RRT are to be set aside and in lieu thereof it be ordered that the matter be remitted to the RRT to be determined in accordance with law. Although the Court has power to direct that the matter be heard by a differently constituted RRT, that direction may not be appropriate in the present case as to do so might deprive the appellant of findings that were favourable to the outcome of his application. However, I would also desist from directing that the matter be referred back to the RRT constituted by the member who made the decision the subject of the review as there may be circumstances, including a view by the appellant that that was not appropriate, that ought to be considered before that course is ordered. In the circumstances it is appropriate to reserve liberty to apply on the issue of the constitution of the RRT that is to determine the outcome of the appellant's application for a protection visa. 113 The Minister contended that, in the event the appellant succeeds, there should be no order as to costs, as the main issues argued on appeal were not raised before the RRT or the trial judge. While there is some substance in that contention in respect of some of the issues, overall I have concluded that the complexity of, and the interrelationship between, the various issues is such that it is not appropriate to depart from the usual order of costs following the event. Accordingly, the Minister is to pay the appellant's costs of and incidental to the proceeding and of the appeal. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

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