FEDERAL COURT OF AUSTRALIA NAAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 834 NAAO OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N22 of 2002 MADGWICK J 28 MAY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N22 of 2002 BETWEEN: NAAO OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 28 MAY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N22 of 2002 BETWEEN: NAAO OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MADGWICK J DATE: 28 MAY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) MADGWICK J: 1 By this amended application, the applicant seeks a declaration that the decision of the Refugee Review Tribunal ("the Tribunal") dated 30 November 2001 affirming a decision of a delegate of the respondent to refuse to grant a protection visa (class XA) to the applicant was made in excess of jurisdiction and is null and void. The applicant invokes the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). 2 It has been announced that a five member bench of this Court will shortly convene to hear appeals in cases which, there is reason to think, will raise questions which have divided Judges of this Court as to the construction and validity of s 474 of the Migration Act 1958 (Cth) ("the Act")in its present form and more broadly about the scope of the jurisdiction of the Court under Part 8 of the Act, again in its present form. 3 A threshold question in this matter has been whether I should simply stand it over to await the decision of the five member Full Court. Reliance is placed by the applicant upon observations of Heerey J in Turkan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [46]. His Honour said: "In my view, the correct approach was to first consider whether s 474 applies. If it does, the court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold." 4 In NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 at [6], Gyles J agreed with Heerey J's approach indicating that to follow the course recommended by Heerey J: "- avoids deciding a false issue (with a consequent saving of time and court resources)." 5 Heerey J has repeated his view, indeed enlarged it, in SBAP v Refugee Review Tribunal [2002] FCA 590 stating at [45] that: "… it seems wrong in principle to deal in detail with contentions made as s 474 did not exist." 6 All of this needs to be understood in the light of the fact that Heerey and Gyles JJ are both among the Judges who believe that s 474 is to be interpreted strictly, in accordance with the formula enunciated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. Thus, for their Honours to determine that the Court has jurisdiction for judicial review of RRT decisions which is extremely narrow, was an expedient way of deciding their cases. As indicated, not all Judges of the Court agree with their Honours' approach. 7 Since the submissions on s 474 have been put before me, and it is a difficult question, I would not wish to decide that aspect of the matter before the decision of the Full Court is delivered. However, it is perfectly clear that even on the broadest, imaginable view of what may be left to the Court, an error of law must nevertheless be shown. It has not been contended otherwise. 8 Having read the written submissions of counsel and having come to the conclusion on a prima facie basis that there was no error of law, as asserted by the applicant, made by the Tribunal, it seems expedient in dealing with the case to determine whether any such errors of law were in fact made. In my opinion, what Marshall J said in VAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 573 at [29] and what Merkel J said in Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 630 at [12] is both convenient and correct. If Heerey and Gyles JJ intended to lay down some principle of practice to bind other judges, which I doubt, then in my opinion, the broader approach suggested by Marshall and Merkel JJ is made clearly preferable, indeed clearly correct. However, I think that the remarks of Heerey and Gyles JJ need to be understood in the context of the entire decision-making process in which their Honours were engaged. 9 I turn then to consider whether any operative errors of law at all were made by the Tribunal. I say, operative, in the sense of asking: was there any error of law which might possibly have affected the outcome of the Tribunal's process of review had the Tribunal not made any such error? 10 The applicant is a citizen of the People's Republic of China who arrived in Australia on 31 August 1998. He is a native of the Fujian Province. He made a statement in support of his application for refugee status in which he said, people in China are deprived of the "basic right" to worship "how, when and where they want". Religious people in China, he said, are living in a "dark shadow". He claimed "they are often denigrated as 'ignorant', 'superstitious', even in today's more enlightened religious policies, and impose much harsh restraints upon belief practitioners". 11 The applicant said he was born into a pious Catholic family. His grandparents were killed by members of the Army after the Communist Party gained power. His father was gaoled for many years and his mother was unable to find jobs for a long period, on account of their religion. Nevertheless, he claims that his parents tried every means to spread the gospel and he came to realise, "that I had to devote all of my life to ... God". 12 He said he first joined an underground religious group in 1986 organised by one of his mother's friends. He proselytised his faith to "others, such as relatives and friends" and began to distribute religious literature. By 1989 the Bible study group had developed from eight to 120 members. With the advent of the pro-democracy movement in Spring 1989 and a broader degree of religious tolerance, the group transmuted itself into a Church which organised public gatherings and gave public speeches to spread the gospel. The Church also organised members to undertake protest activities in support of freedom of religious practices. 13 However, the applicant claims that those religious activities, and he said "especially our church", were effectively banned by the authorities. They were accused of misusing religion to fight against the Communist leadership. Liu Mong, the leader of the church, was arrested by police in June 1989 and sentenced to three years in prison. The applicant said that "as a major activist", he was also detained at the local police station and interrogated many times. He claims that he was forced to confess his so-called offences against the government and was detained for six months. 14 However, the applicant claims that he continually pressed his religious beliefs and practices. In 1993 Liu Mong was released and she again provided covert support for the applicant's group. In 1994 the applicant again fell foul of the police, was frequently questioned and warned to give up his activities. At the end of 1994 he was arrested for a second time, dismissed from his work unit and his church group was classified as an illegal religious organisation. He was sent to "reform under labour" for one year, a form of imprisonment as I would understand it, where he suffered various forms of physical and spiritual persecution. 15 On his release he was still harassed by the police. It became harder for him to spread the gospel in his home town on account of this harassment and, therefore, he says, he began to travel to other villages on the excuse of looking for a job but, in reality, to form secret religious groups. For safety, he divided these into small branches composed of only a few members. He said that "I established a secret tunnel to keep up the contacts among those groups". In 1997 Liu Mong set up an underground church for the second time. The applicant took his groups to her church and the church, among other things, set about "organising ... training classes for major activists". He said that their influence increased and consequently the authorities paid more attention to investigating underground religious activities (apparently underground religious activities in general). 16 After April 1997 the Public Security Bureau set up a special group to crack down on such activities. Fearing for the applicant's safety, Liu Mong took advantage of connections to obtain secretly a passport for the applicant and then planned to arrange for him to leave the country. He was not keen to leave but "as more and more religious groups were destroyed by the police ... things were getting worse and worse in the first half of 1998. I therefore decided to leave the country". 17 It appears from other material that the applicant had obtained a Chinese passport in December 1997 and in March 1998 had travelled to Singapore and back to China, staying for some days with a relative from Hong Kong on the way there and again for some days on the way back. He told the Tribunal that he had considered asking for protection in Singapore but that, as the Tribunal Member put it, "Singapore ... had shown reluctance". He claims that back in China he spent most of his time in hiding, before leaving in August 1998 to come to Australia. It is common ground that he used the passport, which is in his own name, to leave China and travel to Australia. The Tribunal Member indicated that what it summarised as "country information on Christianity in China", came from a considerable number of sources including a US Department of State publication, an article by an Edmond Tang in what appears to be a religious journal called "The Tablet" and Australian Department of Foreign Affairs documents. 18 The Tribunal Member noted that, despite earlier extreme persecution, Christian churches have now emerged as a recognised force in Chinese society and according to the Tribunal there are now about 15 million "official" Protestants and about 10 million "official" Catholics worshipping regularly at registered churches, with their numbers continuing to grow, and about 8 million Catholics worshipping regularly at unregistered churches. The Chinese Government has apparently been returning churches, temples and mosques confiscated in earlier years to their previous owners and on occasion, the Government has agreed to build new churches instead of returning the old ones or offering compensation or back rent instead. In general, according to the Tribunal: "At present, meetings of unregistered and underground church congregations are often closely monitored and sometimes shut down if the leader is attracting a close following, or if officials feel that there is evidence of political activity, or if officials find the group to be disorderly or acting against the law. In 1996, the Chinese Government launched a campaign to suppress unauthorised religious groups and social organisations. Sometimes, an unofficial church is raided and its protest [sic] arrested, warned and released. Such - usually brief - arrests may occur more than once ... However, 'there is a grey area between official policy and the actual practice, where freedoms are being negotiated' ... The policy of repression of unofficial churches is implemented patchily, and it cannot be said that being a member, of such a church inevitably puts a person in conflict with the authorities ... Most unregistered 'house' churches keep a private and low profile, their main interest to practise their religion in their own way. The Chinese Government knows of their existence but does not regard them as a serious threat and seems to tolerate their unofficial existence. Other underground 'church' groups work actively in trying to bring about the fall of the Government. These churches seem to be short-lived because most of them are uncovered by the Chinese security agencies as soon as they are formed." 19 The Tribunal Member's reasoning can be fairly summarised, as counsel for the respondent put it, in the following way: · It was not satisfied that "Christians in general are persecuted over their religion" in China. As the Tribunal put it: "… even though worship at unregistered churches is against the law, in general terms the authorities and the registered churches turn a blind eye to such worship. Independent evidence suggests that punitive action against such churches and church leaders is uncommon and generally prompted by suspicions that the unregistered church in question is linked to dissident political activity." · The RRT was not satisfied with the applicant's explanation as to why he had allegedly joined an unregistered church rather than the officially registered Catholic church. · The Tribunal Member further said: "I am puzzled as to why the applicant's church and its leaders might have been targeted. The applicant's evidence does not suggest that his claimed church was linked to politics ... the applicant's evidence does not credibly suggest a reason why his church would have been targeted when by far the majority of underground churches practise without closure and arrest." · In consequence of these matters, the Tribunal Member said: "I am not satisfied that the applicant's claims of persecution over his religion - and of being under threat of arrest, of his priest and relatives being arrested and questioned, etc – are credible." · The Tribunal continued: "There are, furthermore, substantial other issues of credibility relating to this applicant's claims. One such issue was that the applicant appeared to have only a rudimentary understanding of his claimed religion, despite claiming that he had been taught Christian beliefs from childhood. Another depended on untruths told in order to obtain a visa to come to Australia. (If I thought for a moment that much of the Tribunal's conclusion depended on impugning his credibility about that matter, it would be incumbent on me to do all I could to intervene. It is, with respect, patently absurd to criticise a putative refugee for lying his way to freedom if that is the only way of getting out of his country and into a safe one). Another was real inconsistencies as to his economic background and means, which led the Tribunal to consider that he was "fabricating evidence on the run to shore up his claims". Indeed, in a post-hearing submission, the applicant made yet another new and different claim on this score. · The Tribunal did not accept the applicant was a church leader or that he had been persecuted in the way he claims over his religion. · The Tribunal also relied on the fact that the applicant did not even attempt to stay in Hong Kong although he must have known that there was no effective religious persecution of Christians, including Catholics, in Hong Kong. The Tribunal did not accept any of the explanations from the applicant as to why he made no such attempt. 20 It is submitted that there were two legal errors made by the Tribunal. The first is that, in the circumstances, the Tribunal was obliged to determine the applicant's claim for refugee status by reference to information pertaining to the province in which he lived, namely the Fujian Province. There was evidence before the Tribunal about the Fujian Province and, as was said by the Tribunal, "of variable or quite patchy" repression throughout the vast country in question. The error, it is said, is that the Tribunal determined the case by addressing the attitude of the Chinese government to Christian worship in general and not conditions in the particular province. 21 It is not clear to me that the Tribunal Member failed to consider the applicant's own circumstances in his own province although the Tribunal chose to refer, by way of a summary of a vast amount of material, to more generalised evidence than the particular references to the Fujian Province, as to which there was actually conflicting evidence about the current liability of unofficial church adherence to harassment. Even if it is true that the Tribunal Member did not take account of the possibility of regional variation in the intensity of harassment of religious practitioners, I agree with counsel for the respondent that that does not amount to a failure by the Tribunal to consider a claim or a possible basis for refugee status raised by the evidence. It is simply an argument that the RRT's reasons for rejecting the applicant's claims are logically insufficient or mistaken as a matter of fact. I take it to be beyond argument that errors of that kind do not amount to legal errors. 22 This is not a case in which it could be asserted that there was no material upon which the Tribunal Member might take the view that it did, nor a case where one could say that the result was so out of kilter with the material available and so irrational that a failure to perform the function of review in any meaningful sense could be inferred. 23 In any case, quite independently of the attitude of the Chinese authorities, reading the Tribunal Member's reasons fairly, it seems to me that the Tribunal Member simply did not believe that the applicant was what he claimed to be and rejected his claims. The Tribunal Member, it is clear, did not accept that the applicant was a church leader or that he had suffered persecution. There was material before the Tribunal which the member relied upon to question the applicant's veracity and to form an adverse opinion of him on that account, which is legally unable to be impugned. The matter of fabricating evidence on the run is but one instance. Thus any error as to conditions in the Fujian Province was not critical to the Tribunal's decision. 24 The second error was said to be that the Tribunal Member: "proceeded upon the basis that it was open to the Applicant to reside in Hong Kong and pursue his religious activities there … There was no evidence to support this putative fact." An effort was made to tender before me a document which was not before the Tribunal Member indicating that, in general, Chinese citizens from other provinces do not have a right to change their residence to Hong Kong. I rejected the tender of that document. Again, I agree with counsel for the respondent, who submitted that the applicant's submission misunderstands the actual process of reasoning of the Tribunal. 25 The Tribunal's reasoning on the Hong Kong issue was that, had the applicant truly been facing religious persecution in China, he must have been aware, contrary to his suggestions in evidence, that conditions were much better in Hong Kong. His relative there must have alerted him to the greater enjoyment of religious freedom that prevailed in Hong Kong. Despite these matters, the applicant had made no attempt at all to stay in Hong Kong and this caused the Tribunal Member to conclude that, "he was not leaving China to find safety from persecution but [was] bent on coming to Australia for some reason" other than flight from such persecution. Thus the Hong Kong issue was simply a further reason why the Tribunal did not believe that the applicant was a church leader who had suffered persecution in China. The Tribunal Member was not stating any conclusion that it was possible for a person in the applicant's position to relocate to Hong Kong. The Member's point was a dual one, namely that the applicant had made no attempt to stay in Hong Kong, and that his explanation for not so doing was not a satisfactory one. The applicant made no suggestion that legal inability to reside in Hong Kong accounted for his failure to make any attempt to do so. The Tribunal Member's treatment of this matter going only to the applicant's credibility was, in my opinion, infected by no legal error. 26 It is unimaginable, as I said earlier, that the Court could intervene absent legal error whatever may be the outcome of challenges to the interpretation and constitutional validity of s 474 of the Act. 27 As no legal error has been shown, in my opinion, it serves no purpose to adjourn the matter to await the outcome of the litigation before the Full Court to which I have referred. I therefore dismiss the application and order that the applicant is to pay the respondent's costs. I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick Associate: Dated: 28 June 2002 Counsel for the Applicant: Mr M Henry Solicitor for the Applicant: Yandell Wright Stell Counsel for the Respondent: Mr G Kennett Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 28 May 2002 Date of Judgment: 28 May 2002