NBMH v Minister for Immigration and Citizenship [2007] FCA 175 (22 February 2007)

Migration Act 1958 (Cth) ss 422B, 424, 424A(3)(a)

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Re Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Re Minister for Immigration and Multicultural Affairs; Ex parte Appellant S20/2002 (2003) 198 ALR 59
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

NBMH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2020 OF 2006

NICHOLSON J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2020 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBMH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

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	NSD 2020 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBMH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLSON J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

1 This is an appeal from a judgment of a Federal Magistrate (Baumann FM) made on 29 September 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 20 July 2005 and handed down on 9 August 2005. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection (class XA) visa to the appellant.

2 The appellant is a citizen of the People’s Republic of China (China). Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his religious beliefs, namely his devotion to Catholicism. The appellant claimed to have become a Catholic and to have been baptised in May 2000 after being cured of an illness in 1999. He claimed that in 1993 he had been elected to be the head of the Villagers Administration Committee in his village. The Chinese Communist Party (CCP) tried to persuade him to join the party but he did not want to do so. As a consequence, during the 1999 and 2002 elections, the party endeavoured to have the appellant removed as head. This failed, as the elections were direct and the people had been prosperous under the appellant’s leadership. The appellant claimed that as a result his relationship with the CCP became tense. He held the headship until November 2002 when the Public Security Bureau (PSB) broke into his house during Sunday mass and arrested him and his wife. The appellant claimed they were detained for a week after which the appellant was sent to a re-education camp for one year and his wife detained for 15 days. He claimed he was also required to report to police for seven months after his release.

3 After his release the appellant claimed he had made plans to travel abroad. His brother had organised a Gabon visa for the appellant but cancelled his visa application as he was required to report once a week to the PSB and sign a statement that he did not take part in any illegal religious gathering. When the appellant discovered he was no longer required to report regularly, he made plans to come to Australia. The appellant claimed that he was only a new and simple Catholic and that because he attended Sunday service at home he suffered incredible humiliations and ill treatment for 12 months which he still had nightmares about.

4 The Tribunal was not satisfied of the accuracy of the appellant’s claims concerning his experiences in China and his membership of the underground Catholic Church. It considered the claims raised and gave reasons for doubting their veracity.

5 The first was that the Tribunal was not satisfied that the appellant had provided a truthful account of his employment history in China, progressively modifying his claim to the Tribunal.

6 The second was that the Tribunal was not satisfied the appellant had provided an accurate account of his claimed baptism. It found inconsistency between the appellant’s claim that the priest sprinkled water on his head and information given by the priest at the church the appellant claimed to attend, that baptism included the sprinkling of oil and the saying of baptismal prayers. In light of this significant inconsistency the Tribunal found that the appellant’s account of his baptism was not credible and doubted that it ever took place. Additionally the Tribunal considered the brief, vague and inconsistent description of a Catholic baptism given by the appellant undermined his more general claim to have been a practising Catholic in China.

7 The third factor was that the Tribunal found the appellant’s description of his religious activities in China was not credible, in particular the appellant’s statement that everyone in his village was a member of his church. The Tribunal noted and accepted the Australian priest’s explanation that a Catholic mass in China said by a priest would normally include the sacrament of Holy Communion but the appellant had not mentioned this in his oral evidence.

8 The fourth factor relied on by the Tribunal was that it was not satisfied that the appellant’s knowledge of Christianity was consistent with his claim to have been a practising Catholic for some twelve years in China. The appellant claimed that he was a relatively new Catholic who did not know a lot about the Catholic teachings but nevertheless had a genuine belief. The Tribunal accepted that this would be a reason for ignorance of his claimed faith. However, the Tribunal found he was ignorant of basic knowledge such as the name of the archbishop in the appellant’s province who had been frequently imprisoned by the PSB.

9 The fifth factor was that the Tribunal was not satisfied of the circumstances of the appellant’s exit from China. The Tribunal noted the appellant delayed his departure from China for 12 months after he was released from detention. The Tribunal considered his claims that he did not depart earlier because he was required to report to the PSB on a weekly basis did not explain the further four month delay.

10 The sixth factor was that the appellant did not provide a truthful explanation for how he could obtain a business visa when he was unemployed. The Tribunal found the appellant’s answers regarding the preparation for his departure from China to be vague and implausible. It was not satisfied that the appellant would have been able to obtain a business visa on the basis that he claimed.

11 In relation to his claim of attending church in Australia, the Tribunal found the appellant chose to attend Catholic services in Australia to strengthen his claims as a refugee. On the basis of independent country information, the Tribunal found that if the appellant’s attendance at a Catholic church in Australia led him to be a Catholic he could worship in either a recognised or underground church in certain areas in China without risk of persecution.

12 The Tribunal also considered whether the appellant’s claims could be characterised as political opinion but found that his claim that he had resisted the Communist Party’s pressure to join them was made in the context of his fear of persecution of his religion which had been dealt with by the Tribunal.

13 The Tribunal therefore concluded it was not satisfied the appellant had ever been a member of an underground Catholic church in China or that he had ever been harmed by the authorities for that reason.

14 Before the Federal Magistrate the appellant raised three grounds of appeal. Firstly, that the Tribunal did not comply with its obligations under s 424A of the Act in relation to country information relied on by the Tribunal. The Federal Magistrate held that the independent country information that the Tribunal relied on was exempted under s 424A(3)(a) of the Act.

15 Secondly, there was a breach of s 422B of the Act and denial of natural justice as the Tribunal assessed the appellant’s baptism in China according to the procedures and terms for a baptism by an Australian priest in Australia. The appellant claimed that the Tribunal had taken this evidence into consideration and, in doing so, had implied that the practices and procedures he described must also be those applicable in China where the baptism and services were held in private. He claimed this was against natural justice because it was unreasonable for the Tribunal to reach a conclusion it could not possibly have reached on the evidence before the Tribunal. His Honour found that the Tribunal did give the applicant notice of the information which the priest had given, upon which the applicant made comment in his reply. There was therefore no lack of notice nor any non-compliance with s 424A of the Act.

16 Thirdly, the Tribunal made a factual error amounting to legal error in assessing the appellant as a practising Christian for 12 years when he claimed he was only a Christian from 2000 when he was baptised. At hearing before the Federal Magistrate, the first respondent properly conceded there was no evidence before the Tribunal that the appellant had claimed to be a practising Catholic for 12 years. His Honour found that the Tribunal’s calculation of 12 years was an unexplained error but, considering the other grounds upon which the Tribunal found to support the inaccuracies of the appellant’s claims, the Federal Magistrate was ‘not satisfied that this error of stated fact is not so material as to taint entirely the process or decision of the Member’ (at [21]).

17 The Tribunal asked for proof that the appellant had attended Church in Australia and the appellant requested that it contact his priest at Flemington to confirm his attendance at Church. His Honour found that the Tribunal sought information from the priest that went much further than merely confirming the appellant’s attendance at Church and it was unclear if the witness’s evidence was on oath. However, the Tribunal did put that information to the appellant in writing.

18 The notice of appeal in this Court seeks to re-agitate the same grounds as before the Federal Magistrate.

19 The appellant filed written submissions and made oral submissions. The latter in particular made it clear that the appellant in reality seeks for this appellate Court to rework the merits of his application by reaching a different view on the weight of the evidence to that reached by the Tribunal. That function rests with the Tribunal. What this Court must do is to search for any error of law in the reasoning of the Federal Magistrate and for any jurisdictional error in the reasoning of the Tribunal. For the reasons which follow, I do not consider any such errors are apparent.

20 The first ground of appeal complains that the Tribunal breached s 422B or the principle of ‘natural justice’ by taking into account evidence from an Australian priest. First, it is noted that this is a decision to which s 422B applies, so that the Tribunal was only required to comply with the statutory expression of procedural fairness contained in s 424A: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. Second, the Tribunal clearly discharged its s 424A obligations in connection with information taken from the Australian priest by its letter of 7 June 2005. His Honour correctly concluded that the 7 June 2005 letter complied with ss 424A(1) and (2).

21 The second ground refers to an alleged breach of s 424A by the Tribunal allegedly failing to provide independent country information to the appellant. First, there is no evidentiary basis for such an allegation. There was no transcript in evidence before the Court below. Second, and as held by Baumann FM, such information fell within the exception contained in s 424A(3)(a) so that compliance with ss 424A(1) and (2) was not required in any event.

22 In ground 1 it was also stated that the Tribunal was unreasonable in reaching a conclusion it could not possibly have reached based on the evidence before the Tribunal. This was not a case where the Tribunal acted unreasonably in that it had no evidence. There was the evidence from the priest of practices in the Catholic Church. That was not evidence of the practices in the underground church in China. However, the Catholic Church is universal so that it was not unreasonable for the Tribunal to reason by way of inference from the priest’s evidence.

23 The third ground of appeal relates to the factual error identified and addressed by the Court. The Court can not in the circumstances conclude that the decision made by Baumann FM in this respect was wrong, or a ‘choice that the trial judge should not have made’: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [14] per Allsop J. A factual error does not amount to a jurisdictional or even a legal error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 341 per Mason CJ and see also Re Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ. As Professor Aronson has observed (Aronson, Dyer and Groves, Judicial Review of Administrative Action (3^rd edn, Law Book Co, 2004) at 225), the High Court now believes that fact review can be accommodated for extreme irrationality or logicality: see Re Minister for Immigration and Multicultural Affairs; Ex parte Appellant S20/2002 (2003) 198 ALR 59. However, those circumstances do not present themselves here. The ‘error’ or reasoning here is neither illogical nor irrational. When assessed against the entirety of the written reasons – this is a case of a relatively insubstantial factual error.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

The Appellant represented himself

Counsel for the First Respondent:	L Clegg

Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	21 February 2007

Date of Judgment:	22 February 2007

Federal Court of Australia

NBMH v Minister for Immigration and Citizenship [2007] FCA 175 (22 February 2007)