Wang v Minister for Immigration & Multicultural Affairs

Reasoning of the Tribunal 5 The Tribunal referred to a number of authorities relevant to the applicant's claim to be a refugee within the meaning of Article 1A(2) of the Convention and correctly stated the principles to apply in determining the applicant's claim. The Tribunal set out the applicant's claims in relation to the work she had undertaken with the Family Planning Association and her activities with the Christian house church. The Tribunal then turned to a consideration of the evidence and its findings. The Tribunal observed that the applicant had not given any satisfactory explanation as to why she had provided what she now claimed to be a false name when making her initial application for a protection visa. The applicant had claimed that the passport on which she had travelled to Australia was false and was photo‑substituted, that she had lost her passport and that her real identity appeared on an ID card which bore an issue date 31 December 1991. The Tribunal noted that there was nothing in the photocopy of the applicant's passport on file to indicate that it was false and that an examination of the ID card by the Document Examination Unit led the Unit to conclude that the ID card was "inferior in several important areas" and an "unreliable document". The Tribunal concluded that the ID card was not genuine and that the applicant had left PRC legally on her own passport. The Tribunal considered in some detail the material available to it in relation to departure procedures from PRC and the strict controls on persons departing PRC and did not find it credible that there was any "adverse interest" in the applicant. I take the reference to there not being "adverse interest" in the applicant to be a reference to the fact that the applicant's activities were not such as to bring her to the attention of the relevant authorities to the extent to which they would wish to prevent her from leaving PRC. 6 The Tribunal then considered the applicant's evidence in relation to her employment and religious practice. The applicant said that she had persistently acted in breach of the Family Planning Regulations in helping pregnant women evade the authorities until their pregnancies were sufficiently advanced so that they could not, under the regulations, be required to have an abortion. The Tribunal did not find it plausible that the applicant would carry on the work she said she did with the Family Planning Association which was at odds with her religious conviction (that abortion was morally wrong) or that she would be able to actively undermine the Family Planning Regulations for almost a decade without the Chinese Communist Party intervening at least to discipline her. The Tribunal considered the applicant's claim that she was detained by the Public Security Bureau for fifteen days in 1996 and found that it was fabricated. 7 The Tribunal observed that although the applicant claimed to have read the New Testament three times weekly over a period of several years she was only able to name three of the books in the New Testament and was unable to provide any broad detail of the content of the Bible. The Tribunal noted that the applicant's claim that there are no official churches in PRC was contrary to country information available to the Tribunal. The Tribunal considered it implausible that anyone with a keen attachment to Christianity would be ignorant of the existence of an official church in PRC. 8 The Tribunal then made the following findings: "In assessing all the available information the Tribunal accepts that the applicant was an employee of the FPA [Family Planning Association]. It finds that she has fabricated her story that she actively undermined official policy and that she was eventually detained by the PSB. It has recorded above its finding that the applicant was able to leave China on her own passport. It rejects the applicant's claim that she was forced to hide from the authorities before escaping from China. It concludes that the applicant has no more than a peripheral attachment to the Christian church." In support of its conclusion that the applicant was not a refugee, the Tribunal set out a considerable body of material in relation to the practice of Christianity in PRC which it had considered in reaching this conclusion. The Tribunal concluded, on the basis of this material, that the applicant would be able to practice as a Christian in PRC if she chose to do so. 9 The Tribunal accepted that the applicant had attended pro‑democracy rallies in Australia. The Tribunal found that the applicant had not had a high dissident profile in PRC or in Australia, nor was there any evidence before the Tribunal to satisfy it that the applicant would effectively organise opposition to the government if she were to return to PRC. The Tribunal found that the applicant did not face "a real chance of persecution due to any dissident activities in which she has been engaged". 10 The Tribunal then said: "The Tribunal recognises that the appropriate test to be applied is whether the applicant faces a real chance of persecution for a Convention reason if he [sic] were to be returned to China. A relevant consideration in determining that question, however, is what the country information shows to be circumstances that arouse the adverse interest of the Chinese authorities such that the applicant would face a real chance of persecution by reason of political opinion or for some other Convention ground." The Tribunal considered material before it which bore upon the possible interest the Chinese authorities might have in the applicant as a consequence of her support of the pro‑democracy movement or other expressions of views contrary to the official line. In the light of this material the Tribunal said: "There is no material that would indicate, however, that persons having a profile or history of activity or expression of opinion such as the applicant's would now or in the foreseeable future face a real chance of persecution at the hands of the Chinese authorities." 11 The Tribunal concluded: "In assessing the information available to it, in the light of the applicant's own profile, the Tribunal finds there is not a real chance that she would encounter serious harm in China due to her support of the pro‑democracy movement. In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well‑founded fear of persecution for any Convention reason." Submissions of the parties 12 The applicant relied on the following grounds: · The Tribunal, contrary to s 430(1)(c) of the Act, failed to set out its findings on a number of material questions of fact, namely: - any motive for the applicant falsely to claim to be a person other than Lanying Wang; - the applicant's religious knowledge and her practice of her faith; - the applicant's work as a family planning officer; - the applicant's claimed detention; - the applicant's claimed dismissal; - the applicant's participation in pro‑democracy rallies in Australia; - the cumulative effect of the profile of the applicant in PRC and of her pro‑democracy involvement in Australia. It was also submitted that the Tribunal failed to refer to the applicant's evidence in respect of a number of these matters. · The Tribunal applied an "adverse interest" criterion or "serious harm" test rather than a test of "well‑founded fear of persecution" as explained in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. · The Tribunal failed to ask "What if I am wrong?" in relation to its findings on the applicant's identity and the applicant's claimed opposition to PRC's family planning policies. · The decision was induced or affected by actual bias, in the sense considered in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, in finding that there was no adverse interest in the applicant by the authorities in relation to the applicant's identity, her identity card, her Christian faith and practice and her work as a family planning official. It was said that the Tribunal's reasoning and inferences were prejudged or closed and that the Tribunal was not open to persuasion. 13 The respondent submitted that the reasons given by the Tribunal complied with the requirements of s 430(1) of the Act and that the Tribunal had given reasons for its findings on the critical issues which were before it. It was submitted that although any question or issue can be broken down into a serious of sub‑issues, the assessment of the appropriate level of abstraction required for a proper determination of an issue involves questions of degree and judgment. Reliance was placed on the observations of Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 where his Honour said at 414 that it was not necessary that the reasons deal with all matters raised in the proceeding so long as the substantial issues were covered. 14 It was submitted by the respondent that the Tribunal set out its finding on the material question of the identity of the applicant, namely that the applicant travelled to Australia on her own passport, and referred to the evidence and other material on which this finding was based in accordance with s 430(1). It was submitted that, provided its findings were open to it, the Tribunal is not required to refer to evidence or other material other than evidence or other material on which the Tribunal's findings were based. Reasoning 15 The applicant's principal submission was that in breach of s 476(1)(a) of the Act the Tribunal had failed to observe procedures required by the Act, namely setting out findings on various material questions of fact as required by s 430(1)(c) of the Act. It was recently affirmed by a Full Court of the Federal Court that a failure to comply with s 430(1)(c) of the Act constitutes a failure to observe a procedure within s 476(1)(a) of the Act which the Tribunal was required to observe: Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. The respondent formally submitted to the contrary. This issue is presently the subject of an appeal to the High Court in respect of which leave was granted on 11 February 2000: Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681; Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 16 Section 430(1)(c) of the Act requires the Tribunal to set out findings on matters of fact that are material to its decision, that is to say findings on facts which are central to the case before it: Minister for Immigration and Multicultural Affairs v Singh (supra) [44]. The Tribunal is not, however, required to give reasons for rejecting evidence or reasons why it may have given no weight to evidence which would detract from the findings it has made: Minister for Immigration and Multicultural Affairs v Singh (supra) [46]. Further, compliance with s 430(1) of the Act does not require reference to evidence contrary to the findings of the Tribunal: Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740; Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940. 17 In Addo v Minister for Immigration and Multicultural Affairs (supra), the Court said at [24]: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision‑maker to give reasons for rejecting evidence inconsistent with the findings made." At [31] the Court said: "It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." This view was accepted by McHugh J in Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 but his Honour added a caveat when he said that s 430(1)(b) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue. His Honour continued at 422‑423: "Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line‑by‑line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal." 18 The applicant's submissions did not pay sufficient attention to these principles. Although counsel for the applicant disavowed any suggestion that he was undertaking a review of the merits of the conclusions reached by the Tribunal, he sailed very close to such a submission. In a number of respects the applicant's complaint was either that the Tribunal did not pay sufficient attention to evidence given by the applicant, or that there was material before the Tribunal which invited a conclusion contrary to that reached by the Tribunal or that the Tribunal had not explained why it had rejected that evidence or material. 19 The applicant submitted that it was a material question of fact what motive the applicant had for claiming falsely to be a person other than the person named in the passport. The Tribunal's finding that the applicant had "provided no satisfactory explanation as to why she felt obliged to provide what she now claims to be a false name when making her initial application for a protection visa" conveyed the Tribunal's finding on the matter of her false identity in accordance with s 430(1)(c). In any event, the material question of fact was not the applicant's motive but rather the applicant's identity and whether she left PRC on a valid passport. On this question the Tribunal made a clear finding and gave its reasons for so finding. 20 It was submitted by the applicant that the Tribunal failed to refer in detail to evidence given by the applicant concerning her religious knowledge and convictions or to any evidence which would justify an assumption that a practising member of an underground church in PRC would have the same level of knowledge of her faith as might be expected of a practising Christian in Australia. Reference was made to the Tribunal's observation that despite claiming to have read the New Testament three times weekly over a period of several years, the applicant was able to name only three of its books and unable to provide any broad details of the Bible. It was said that at the hearing the applicant gave evidence that "We only had one copy [of the Bible] between us and we used to write the text on to a blackboard and read it together off the blackboard". 21 The Tribunal did not, in terms, adopt the position that the standard by which to evaluate the religious views and knowledge of the applicant was that of a practicing Christian in Australia. Obviously the level of religious knowledge will vary within faiths, from person to person, depending upon the extent of that person's commitment to his or her faith. The assessment of the applicant's religious views and knowledge was a matter for the Tribunal and the matters to which it referred were relevant to, and logically probative of, the genuineness of the applicant's claim. 22 Whether the activities of the applicant gave rise to a well‑founded fear of persecution for religious reasons was a material question which was addressed by the Tribunal in its reasons. The Tribunal made findings in relation to the nature of the applicant's involvement with the Christian church and noted that her claim that there were no official churches in PRC was at odds with the country information to which it referred. The Tribunal's conclusion that the applicant "has no more than a peripheral attachment to the Christian church" was based on the evidence to which the Tribunal had referred. 23 In essence, the applicant's complaint was that the Tribunal should not, on the evidence, have reached the conclusion it did. That is not a proper ground of review. The Tribunal gave reasons why it rejected the applicant's evidence on the issue of her religious involvement and it was open on the evidence for the Tribunal to reach the conclusions it did. It was for the Tribunal to form a view on the evidence before it on the level of understanding of the Christian religion it would expect the applicant to have. It has not been shown that the Tribunal approached this task improperly. 24 The applicant challenged the Tribunal's finding that it did not find it plausible that the applicant would act for so long at the Family Planning Association in a role that was at odds with her religious beliefs and convictions. It was submitted that this was a crucial finding and it should have referred to the applicant's evidence on the point given at the hearing. The evidence was to the effect that the applicant continued to do the work because it gave her an opportunity to at least save some women who would not otherwise have been saved. She claimed to have saved about 500 women from forced abortions or sterilisation. 25 The applicant's explanation that she stayed in the position of an employee of the Family Planning Association to achieve some good by saving some women from forced abortions and sterilisations was adequately addressed by the Tribunal when it rejected her claims that she had actively undermined Family Planning Regulations for almost a decade without the Chinese Communist Party intervening, at least to discipline her. It is apparent from the Tribunal's reasons that it understood and took into account the applicant's explanation in this respect although the Tribunal rejected it. 26 In a number of respects the applicant criticised the Tribunal's findings that it did not believe the applicant's version of particular events and that it found the applicant's evidence implausible. I refer, for example, to the Tribunal's finding that the applicant had fabricated her story that she actively undermined official policy in relation to family planning and that she was detained by the Public Security Bureau. I also refer to the Tribunal's finding that it did not find plausible the applicant's evidence that she would act for so long in a family planning role which was at odds with her religious conviction or that she would be able actively to undermine the family planning regulations for almost a decade without being disciplined. It was said that the Tribunal did not set out the evidence by virtue of which it reached this conclusion. However, a finding as to credibility does not necessarily require a detailed explanation by way of reasons. In Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra) McHugh J said at 423: "In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were 'utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision‑maker par excellence. If the primary decision‑maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub‑set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged." I am satisfied that the Tribunal gave reasons for the relevant material questions before it. To the extent to which the applicant says that reasons have not been given in respect of particular matters, the applicant is referring to what are essentially sub‑sets of reasons in relation to particular pieces of evidence. 27 In relation to the applicant's passport, the material question was whether the passport and the ID card were genuine. The Tribunal gave reasons why it decided that the passport was genuine and that the ID card was forged. It found that there was nothing in the photocopy passport on file (the applicant having lost the original) which indicated that it was false and that the Document Examination Unit had concluded, for reasons which were set out, that the ID card was "inferior in several important areas" and "an unreliable document". Any issue as to the motive of the applicant for falsely claiming to be a person other than the person named on the passport was a matter subsidiary to the material questions to which I have referred. 28 It is not incumbent on a Tribunal in relation to every finding or conclusion which it makes or reaches to ask the question - what if I am wrong? Much depends upon the manner in which the Tribunal has made a particular finding or reached a particular conclusion. In this respect I do not consider that the Tribunal erred in not asking that question in relation to any of its findings or conclusions. It is apparent from the Tribunal's reasons that it made its findings and reached its conclusions with a degree of confidence and did not express any hesitation or doubt about the findings it made or the conclusions it reached. The observations of the majority of the High Court in Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 576 are apposite in this respect: "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution. In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well‑founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong." 29 In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, Sackville J (with whom North J agreed) said at 25 [63]‑[65]: "63 Although the 'What if I am wrong?' terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a 'well‑founded fear of being persecuted' for a Convention reason. The reasonable speculation in which the decision‑maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision‑maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute 'an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found'. 64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so. 65 Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to 'impute' to the RRT (or other administrative decision‑maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well‑founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision‑maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by the Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made." The application of these observations to the Tribunal's reasoning leads to the conclusion that the Tribunal has made no error of principle in not asking the question - what if I am wrong? 30 The applicant submitted that the Tribunal had failed to set out any findings on the material question of fact whether the applicant would face a real chance of persecution given the combined effect of participating in pro‑democracy rallies in Australia together with her claimed involvement in anti‑Government religious and family planning activities in PRC. It was said that even though the Tribunal rejected the applicant's main claims concerning her religious involvement in PRC and her involvement in anti‑Governmental family planning practices in PRC, the Tribunal ought to have asked itself "what if I am wrong?" in relation to this point when considering the risks to the applicant from participating in pro‑democracy activities. The authorities to which I have referred made it unnecessary for the Tribunal to ask that question as it had rejected the submissions that the underlying facts had occurred and formed a clear view on that issue. 31 The Tribunal's findings in relation to the applicant's detention and dismissal were adequately addressed by the Tribunal's finding that the applicant "fabricated her story that she actively undermined official policy and that she was eventually detained by the PSB". Once these findings were made the foundation for the claim that she had been dismissed from her employment for a Convention reason fell away as that claim was dependent on the claim for the reason for the dismissal, which was rejected by the Tribunal. 32 There is no substance in the submission that the Tribunal failed to set out its findings or reasons in relation to the issues of the applicant's participation in pro‑democracy rallies in Australia or the cumulative effect of the applicant's profile in PRC and her pro‑democracy involvement in Australia. The Tribunal made specific findings on the applicant's dissident profile in PRC and Australia and in its reasons explained why it had made these findings. The Tribunal also made it clear that it had considered cumulatively, as well as individually, each of the claims made by the applicant. The Tribunal said that it had considered all the circumstances of the case "including cumulatively" and it is clear from the Tribunal's reasons that it had considered each element or integer in the cumulative claim and had made specific findings in relation to each element or integer. 33 I do not consider, consistently with the reasoning in Minister for Immigration and Multicultural Affairs v Guo (supra) and Minister for Immigration and Multicultural Affairs v Rajalingam (supra), that the Tribunal erred in considering whether the authorities had any "adverse interest" in the applicant. The applicant points to the Tribunal's finding that it did not "find it credible that there is any adverse interest in the applicant". This finding was predicated on the Tribunal's earlier finding that "the ID card submitted by the applicant is not genuine and concludes on the basis of all the available evidence that the applicant left China legally on her own passport". The Tribunal did not use this terminology as an alternative to asking whether the applicant faced a real chance of persecution if she returned to PRC. Rather the Tribunal considered whether there was any such adverse interest for the purpose of determining whether there was a chance that if the applicant returned to PRC she would be persecuted. The Tribunal found it was not credible that there was any adverse interest in the applicant because the evidence demonstrated to the Tribunal that if the applicant left PRC legally on her own passport, then the applicant was not a person who might be the subject of persecution if she returned to PRC. When the Tribunal used the expression "adverse interest" on the second occasion on which it did so, it used that expression in the context of asking whether the applicant would face a real chance of persecution. 34 It was submitted that the Tribunal also had a closed mind on the question of the applicant's religious commitment and involvement because it had acted on the unspoken presumption that the applicant as a member of the Christian faith in an underground church in PRC would have the same kind of knowledge as if she would if she were a committed Christian in Australia. It was also submitted that the Tribunal had a closed mind on whether the applicant could practise her Christian faith in PRC in an unofficial underground Protestant house church without harm or a well‑founded fear of persecution. This submission was based on the proposition that the Tribunal had not referred to evidence upon which it was said that some of its crucial findings of fact should have been based. Reference was made to the evidence concerning the applicant's involvement in her house church, the level of knowledge of her faith to be expected and her reasons for continuing to work at the Family Planning Association despite her particular moral difficulties with that position. 35 There is no merit in the submission that the Tribunal approached issues such as the applicant's religious belief and practice with either preconceived views or a closed mind. The applicant's criticism of the Tribunal's reasoning in this respect should rather be understood as a criticism of the Tribunal's reasoning which results in impermissible merits review. There is nothing in the Tribunal's reasoning which warrants the conclusion that the Tribunal had preconceived views or a closed mind on any issue. The Tribunal reached clear conclusions which resulted in rejection of the applicant's evidence in number of respects and findings adverse to the applicant. It was said that if the Tribunal had approached the matter with an open mind it would have set out the evidence upon which it relied. That is exactly what the Tribunal did. In each case the Tribunal referred to the applicant's evidence and claims and explained why it had reached its conclusions. 36 The applicant's religious belief and practice is a case in point. The Tribunal set out the applicant's evidence and claims as to the nature and extent of her religious belief and practice. The Tribunal then made a number of observations in relation to the applicant's religious practice. It did not find it plausible that the applicant would act for some seven years in a role of assisting abortions which was "so at odds with her religious conviction". It noted that the applicant was "unable to provide any broad detail of the content of the bible" and could only name three books in the Bible although she claimed to have read the New Testament three times weekly over several years. It noted that the applicant's claim that there are no official churches in China was contrary to available country information to which the Tribunal referred. The Tribunal found it implausible that a person with a keen attachment to Christianity would be ignorant of the existence of an official church in China. The Tribunal noted that the applicant was able to describe the church she attended in Melbourne only by reference to its location. The Tribunal's conclusion was that the applicant "has no more than a peripheral attachment to the Christian church". 37 These findings and conclusion were open to the Tribunal on the material before it. There is nothing in the Tribunal's reasoning which suggests any pre‑conceived views as to the manner in which a religious belief or practice should be demonstrated or undertaken. 38 The amended application will be dismissed with costs. I certify that the preceding thirty‑eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Solicitor for the Respondent: Australian Government Solicitor