Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Application for Review of Refugee Review Tribunal decision - protection visa.

MZNAS v Minister for Immigration [2004] FMCA 720 (5 November 2004)

MZNAS v Minister for Immigration [2004] FMCA 720 (5 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZNAS v MINISTER FOR IMMIGRATION
[2004] FMCA 720




MIGRATION - Application for Review of Refugee Review Tribunal decision - protection visa.




VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255

Wang v MIMIA (2000) 179 ALR 1

NACR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 318 (15 November 2002)

Farajvand v Minister for Immigration and Multicultural Affairs (2001) FCA 795 (20 June 2001)

Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:
MZNAS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 284 of 2003




Delivered on:


5 November 2004




Delivered at:


Melbourne




Hearing Date:


7 October 2003




Judgment of:


McInnis FM




REPRESENTATION

Counsel for the Applicant:


Mr R Niall




Solicitors for the Applicant:


Australia Legal Advisory Centre




Counsel for the Respondent:


Ms H Riley




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The Application be dismissed.

(2) The Applicant shall pay the Respondent's costs fixed in the sum of $6,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 284 of 2003

MZNAS



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. By an amended application dated 6 October 2003 the applicant seeks to review a decision of the Refugee Review Tribunal (the RRT) dated 30 January 2003 and handed down on 20 February 2003 which had affirmed a decision of the delegate of the respondent that the applicant is not entitled to a protection visa.

2. The applicant claims that the RRT in deciding not to grant a protection visa to the applicant had exceeded its jurisdiction or committed a jurisdictional error. The particulars relied upon are as follows:

a) The tribunal erred by failing to address the claims of the applicant based on his future conduct.

b) The tribunal erred in the construction of the term "religion" in the Refugees Convention as it applies to protection visas under section 36 of the Migration Act.

c) The tribunal failed to exercise its jurisdiction by failing to determine why the applicant would not practice his religion in a way that would attract the attention of the Chinese authorities.

3. In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-

"16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57."

4. By way of background, it is noted that the applicant was born on 25 March 1959. He is a citizen of the People's Republic of China. The applicant arrived in Australia on 4 January 2000. On 15 February 2000 he lodged an application for a protection visa. On 30 May 2000 a delegate of the Minister refused the application. The applicant then applied to the RRT on 19 June 2000 and, as indicated, the RRT affirmed the delegate's decision on 30 January 2003.

5. In support of his application for a protection visa the applicant claimed he feared persecution by reason of religion, namely, being adherence and imputed adherence to the Quan Yin method.

6. In support of his application a submission was made on behalf of the applicant's adviser to the respondent and a number of documents were included in the submission including a document entitled "My Personal Experiences" (CB 38). A summary of that document provided in the respondent's contentions of fact and law adequately sets out the relevant details as follows:

a) a neighbour introduced him to the Quan Yin method in April 1993;

b) the government of China said the method was an evil religion and banned its practice; its followers were subject to home search, confiscations, arrests and sentences;

c) in September 1992 the police caught a man who had a list of the names of the practitioners in China of the Quan Yin method; the police searched the homes of practitioners and confiscated cassette and video players, videotapes, books and cassettes and photographs; the police conducted brainwashing study groups; in September 1992 the police kept the first contact person of Shanghai under house arrest for 18 days and eavesdropped on her telephone;

d) the applicant applied to his neighbour to learn the convenient method in July 1994; in July 1995 the neighbour took him to a initiate couple to watch videos of the master so the applicant could understand more of the teachings;

e) from July 1995 to August 1997 the applicant frequently transported the master's books to other provinces to spread the thoughts of the master to initiates;

f) from November 1996 to August 1997 someone the applicant knew opened a vegetarian restaurant in Shanghai, it was a secret liaison station; the applicant volunteered to help the restaurant in his spare time;

g) from 23 to 29 October 1996, the applicant went to a Buddhist ashram in the mountains with a group of 40 initiates and convenient method practitioners; the public security people from Shanghai followed them all the way, broke into their hotel rooms and took the names and ID numbers of all the 49 people, including the applicant; no evidence was found so the group ordered to dismiss immediately and seriously warned;

h) the applicant obtained a work visa of Papua New Guinea (PNG), and arrived there in September 1997, hoping to have an opportunity to see the master and receive her initiation;

i) in Papua New Guinea there was no local Quan Yin method centre and the applicant was the only person to apply for the initiation there; while in Papua New Guinea the applicant read material and distributed it to local native people;

j) the applicant learned of an initiation to be held in Thailand in December 1999; the applicant went there and was initiated on 27 December 1999;

k) the applicant came to Australia on 4 January 2000.

The tribunal hearing

7. The tribunal hearing was conducted on 15 August 2000.

8. On the day of the hearing the applicant's then migration agent or adviser provided a facsimile message to the RRT enclosing a submission that the PNG authorities had cancelled the PNG entry permit on 19 June 2000. It was submitted that the applicant no longer had effective protection in PNG. In support of that submission the applicant's adviser provided the RRT with a copy of a letter dated 18 July 2000 purportedly signed by Raka Itana, Director-General of the Immigration Department PNG. The letter claimed that the applicant's work permit was cancelled on 19 June 2000 and that his employment visa would be cancelled on departure and the applicant would not be allowed into the country on the same visa as it is null and void. At the hearing on 15 August 2000 a request was made for the original of the letter from Raka Itana. The original was provided to the RRT under cover of letter dated 17 August 2000 (CB 268).

9. By letter dated 1 February 2001 the RRT asked the applicant to comment on information from the Department of Foreign Affairs and Trade to the effect that the signature on the letter purportedly from Raka Itana was not his signature (CB 290). The applicant's adviser provided comments in a letter dated 19 February 2001 (CB 293). That letter sought to explain circumstances surrounding the letter and on behalf of the applicant expressed concern that it was claimed he had provided a "bogus document". A further hearing was then conducted of the RRT on 12 July 2001.

The tribunal's findings

10. The tribunal made a significant finding that it was not satisfied that the applicant had been truthful in relation to his history as a Quan Yin method practitioner, his commitment to that religion, nor his fear of being persecuted by the Chinese authorities. It found "significant aspects of his evidence to the RRT to be inconsistent, incongruous, contrived and evasive" (CB 525). It found that the applicant was responsible for forging the letter purportedly signed by Raka Itana

(CB 529).

11. Whilst accepting the applicant had been initiated into the Quan Yin method in Thailand on 27 December 1999, the RRT did not consider that the applicant neither to have been a long-term practitioner, to have been initiated (CB 524). It accepted that the method was introduced to China in 1992 and that the Chinese government repressed cults (CB 524).

12. The tribunal found that the applicant's evidence concerning the Chinese authorities' mistreatment of Quan Yin method practitioners in China in September 1992 was not supported by any "country information" available to the RRT or any reports by human rights organisations or newspapers provided by the applicant. The tribunal discounted evidentiary value of a statement made by one witness in which he claimed he was initiated by the Quan Yin method in Shanghai on 7 September 1991 on the basis that the method was not introduced to China until 1992. The RRT otherwise noted at the hearing the applicant changed his evidence about public security people following his group in October 1996 to the Buddhist ashram in the mountains. In his initial statement he had said the public security people had followed his group all the way from Shanghai to the ashram, whereas at the hearing it was put to the applicant it was incongruous that his group would have continued to their destination if they knew they were being followed. He then said they had just been followed from the ashram back to their hotel. The RRT found the applicant's evidence on that point to be inconsistent, evasive and concocted. It also found the applicant's evidence about the group of 49 travelling by bus incongruous and contrived (CB 526).

13. The applicant had claimed it was safer for them to travel by bus than to all sit together on the train. The RRT pointed out they could have travelled separately on a train. It found the applicant's evidence about a list of practitioners to be evasive as he was unable to say why there would be such a list or how many people were on it or how he knew his name was on a list held by the public security bureau. The RRT considered incongruous that the applicant would have gone to Papua New Guinea for two years when there was no Quan Yin method centre in that country (CB 527). The RRT also found the applicant's failure to seek asylum while he was in PNG to be inconsistent with his claimed fear of persecution in China. It found the applicant's explanation that he was unaware he could seek asylum there not to be credible given the speed with which he accessed the refugee determination system in Australia.

14. It was noted by the RRT that the applicant when asked about different planes of existence in the Quan Yin method said that they were secret. When it was pointed out that the master had published descriptions of the planes the applicant said that they were not secret but ordinary practitioners were not free to discuss them (CB 528).

15. Given the RRT's assessment of the applicant's credibility, it did not accept that he had been a Quan Yin method practitioner while he had been in China and did not accept that while he was in Papua New Guinea he had a genuine belief he would be persecuted if he returned to China. It concluded that the applicant did not have a well-founded fear of persecution before his initiation in Thailand in December 1999.

16. The RRT further considered whether the applicant's activities in Thailand and Australia were sufficient to establish a well-founded fear of persecution. It considered the relevant evidence and country information and concluded that in view of the applicant's untruthful evidence about his commitment to the Quan Yin method it was not satisfied that he would engage in Quan Yin method activities in China that would be in breach of the anti-cult legislation in that country. Accordingly, the RRT was not satisfied that there was a real chance that the applicant would be persecuted in China for reasons of his adherence to the Quan Yin method.

17. Whilst accepting that the applicant was initiated into the Quan Yin method in Thailand on 27 December 1999, the RRT found that there appeared to be some inconsistencies between the applicant's evidence as to his religious activities in Australia and that of his witnesses. It assessed his witnesses at the hearing as having a belief that the applicant genuinely adheres to the Quan Yin method. Ultimately, however, it concluded, as indicated earlier, that it was not satisfied that there is a real chance the Chinese authorities would persecute the applicant for reasons of his adherence to the Quan Yin method.

Applicant's submissions

18. The applicant relied upon supplementary contentions of fact and law filed 6 October 2003 and otherwise made further submissions to the court. Three grounds were relied upon as set out in the amended application. It was submitted that on a fair reading of the RRT's reasons there was no finding that the applicant is currently other than genuine in his beliefs and practices as a follower and practitioner in the Quan Yin method. It was argued that it is implicit that a practitioner of an "evil cult" would be at risk of harm if they come to the attention of the authorities in China. The public display or practice of Quan Yin method in China it was submitted is likely to be met with adverse treatment by the Chinese authorities such as would amount to persecution.

19. It was noted that in the RRT report reference has been made to the relevance of considering reports on the Chinese authorities' treatment of Falun Gong practitioners given that the government has sentenced Quan Yin method practitioners in accordance with the same "anti-cult laws" that applied to Falun Gong adherents. It should be noted that the RRT referred to a DFAT report of September 2001 concerning a Falun Gong practitioner and noted the report refers to that practitioner being monitored by the Chinese government upon return to China, but that -

The Chinese government would not impose legal or administrative penalties on such a person unless the person also engaged in illegal activities under Chinese law. (CB 530-531)

20. It was submitted that persecution may arise by acceptance of the evidence that cult members who disrupt public order or distribute publications are subject to prison terms in China.

The issues

The failure to address the claim based on future and not past acts

21. It was submitted that the RRT resolved the application by reference to factual findings as to what occurred in the past and rejected much of the applicant's account of what occurred in China and PNG. Reference was made to the following passage from the RRT decision:-

It remains to consider whether the applicant's religious activities in Thailand and in Australia have been sufficient to establish that he has a well-founded fear of being persecuted by the Chinese authorities (CB 529)

22. It was submitted that is not the correct question, nor does it answer the applicant's claims based on future conduct. As the RRT had accepted that the applicant is a practitioner of Quan Yin method has the subjective fear he claims, the issue it was submitted for the RRT was whether his fear was well-founded. Reliance was placed upon by the decision of Merkel J in Wang v MIMIA (2000) 179 ALR 1 at 18-21, paragraphs 82-100 (Wilcox and Gray JJ agreeing.) In particular Gray J at paragraph 19 states:-

[19] I agree with Merkel J's conclusion that the RRT appeared to accept the genuineness of the intention of the appellant to practise his religious faith at an unregistered church if he should return to the People's Republic of China. In my view, it is implicit in the reasoning of the RRT that it reached the view that, if the appellant were to be returned to the People's Republic of China and to carry out his intention of practising his religion at an unregistered church, he would suffer persecution. The RRT took the view that the appellant could avoid this persecution by not carrying out his intention, and instead by practising his religion at a registered church. In following its path to this conclusion, the RRT erred in law, within the meaning of s 476(1)(e) of the Migration Act 1958 (Cth) (the Migration Act). The error involved an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT.

23. It was contended by the applicant that it is notable that the RRT did not refer to any of the authorities on future conduct. It was argued that on the RRT's findings it must have been taken to have accepted that if Chinese authorities knew or suspected a person was a Quan Yin method practitioner which knowledge or suspicion may have come about because of the person being "public" about the beliefs, then the fear would be well-founded.

24. It was submitted by the respondent that the RRT was not satisfied the applicant had been truthful about his history as a Quan Yin method practitioner or his commitment to that religion or fear of being persecuted and found significant aspects of his evidence to be inconsistent, incongruous, contrived and evasive (CB 525). It did not accept that the applicant had been a Quan Yin method practitioner while he had been in China and did not accept that while he was in PNG he had a genuine belief he would be persecuted if he returned to China (CB 529). It considered the activities of the applicant in Australia and Thailand and country information in reaching its conclusion that in view of the applicant's untruthful evidence about his commitment to the Quan Yin method it was not satisfied that he would engage in Quan Yin method activities in China that would be in breach of the anti-cult legislation in that country.

25. It was submitted that the RRT did specifically consider the future of the applicant when it referred to what had remained to be considered and reached a conclusion which it was submitted it was "reasonably open to it in the circumstances". It was argued by the respondent that in this case the RRT had not reached a conclusion that it was unreasonable or unnecessary for the claimant to practice the beliefs or convictions. Reference was made specifically to paragraph 91 of the Wang decision of Merkel J where the court states the following:

[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 practise those beliefs or convictions.

26. Reference was also made to the decision of the Full Court of the Federal Court in NACR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 318 (15 November 2002) where the court states the following at paragraph 44:

However, if the Tribunal's reasons are read with benevolence perhaps a finding that the appellant had no commitment to the practise of Falun Gong in China, grounded on the Tribunal's assessment of the appellant as a witness, was reasonably open, although not compelling.

27. In my view, the submissions of the respondent are correct in relation to this issue. It is clear to me that unlike the decision-making which was the subject of the court's review in the case of Wang, the RRT in the present case has not simply relied upon the past conduct of the applicant but has used its findings in relation to his truthfulness on that issue to then assess his current fear and future prospects if he were to return to China. It has in fact considered in its reasons the future risk based on activities of the applicant in Australia and Thailand. Whilst it appears to have accepted the applicant's commitment to the Quan Yin method, it was not satisfied that he would engage in Quan Yin method activities in China in a way that would be in breach of the anti-cult legislation in that country. In my view, that is clearly a finding of fact reasonably open to the RRT on the material then before it and it has not made a finding that it regards it as unreasonable or unnecessary for the applicant to practice his beliefs or convictions, but rather is satisfied that he will not practice them in a way which would attract the adverse attention of the Chinese authorities. Accordingly, the first ground should fail.

The tribunal erred in the construction of the term "religion"

28. A key submission made on behalf of the applicant was that if the applicant modified his behaviour to avoid persecution, then that establishes the person has a well-founded fear of persecution. It was submitted that the RRT, if it did consider future conduct, did so based upon an erroneous construction of "religion". Whilst noting the RRT rejected the evidence of the applicant that he would engage in activities in breach of anti-cult legislation and thereby be at risk of persecution, it was implicit that the RRT effectively has found that the applicant would not engage in public manifestation of his faith should he return to China. It was crucial, according to the applicant's submissions, that the RRT did not ask why the applicant would act in a way as to avoid coming to harm in China. If the tribunal did not regard the question as important, then it was submitted it misunderstood the meaning of "religion".

29. Again reference was made to the decision of the court in Wang and in particular paragraph 10 of the decision of Wilcox J as follows:

[10] As it seems to me, in this case the tribunal adopted an unduly narrow interpretation of the word "religion''. As Merkel J points out, the tribunal posed for itself the appropriate question: "whether the treatment [Mr Wang] has faced in China was persecutory or whether he could expect to face persecution if he returned there in the future''. However, the tribunal never answered that question; instead it transposed the critical question into "whether the applicant has been or would be deprived of his right to worship by acceding to the government regulations''. That substitution might have been acceptable if the word "worship'' had been accorded its full meaning, so as to include participation by Mr Wang in communal religious rites that were acceptable to him in form, and performed by people to whom he had no objection. But the tribunal did not apply the word in that way. Mr Wang told the tribunal member that "he could not attend government-sanctioned churches because they were unable to teach all the necessary doctrines and because the State controlled the church. He could not worship faithfully in a registered church which was there to serve the purposes of the Communist Party.'' The tribunal member did not express doubt about Mr Wang's sincerity in making those claims, but found "he would be able to resume his religious practices and beliefs, subject to some State controls but insufficient to deprive him of his right to religious freedom''. What type of "religious'' freedom is it, that limits the practice of communal rites to a service conducted by state-approved persons who substitute government propaganda for elements of theological doctrine?

30. It was argued that the distribution of pamphlets, group meditations and sale of books are all part of the practice of the applicant's religion and that the RRT was wrong to not regard those elements as being important to the applicant's practice of his religion.

31. It was submitted by the respondent that any suggestion that the RRT rejected the evidence of the applicant and that it did not accept that if he returned to China he would continue to practice his faith in the way he has done in Australia was open to the tribunal and cannot be the subject of judicial review. It was not necessary for the tribunal, as

I understand the respondent's submissions, to analyse in detail the reason why the applicant may act in a certain manner upon return to China and it is noteworthy that it had made specific findings about his past activities in China and PNG.

32. In my view, the submission made in principal by the applicant that to desist from the practice of religion for fear of being arrested as a result of a breach of anti-cult legislation may well raise evidence of a risk of persecution. In the present case, however, the facts as found by the RRT are based upon both past findings as to the applicant's conduct in China and PNG and the evidence of his activities in Australia which gave the RRT the opportunity to make a finding reasonably open to it about the conduct of the applicant should he return to China. I do not interpret the reasons of the RRT as amounting to a suggestion that the applicant would cease to practice the Quan Yin method or aspects of it in China in order to avoid persecution, but rather that he, like others, may continue to engage in the practice without attracting the attention of the authorities. The RRT was then entitled, in my view, to draw the conclusion that he would not face a risk of persecution and did not therefore have the required well-founded fear of persecution. This ground should therefore fail.

The tribunal failed to consider why the applicant would not practice his religion on return to China and whether or not it was because of his fear of persecution

33. To a large extent this ground has been dealt with in consideration of the submissions and authorities relied upon in support of the previous ground. It was submitted by the applicant that simply concluding that by desisting in engaging in conduct prohibited by Chinese authorities to avoid harm is not the end of the matter. It was argued that the RRT reasons did not specifically draw any conclusion as to the basis upon which it believed the applicant would not engage in certain conduct. By concluding that the applicant could avoid harm, the RRT failed by not then addressing the issue as to why the applicant would avoid harm and did not direct itself as to the question as to whether or not the anticipated limits of the practice of Quan Yin method by the applicant would or would not arise by reason of the fear of the applicant of persecution (see Farajvand v Minister for Immigration and Multicultural Affairs (2001) FCA 795 (20 June 2001) paragraph 34).

34. The respondent referred the court to the decision of Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 and in particular paragraph 79 as follows:

79 Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864 they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim

35. Reliance was also placed upon the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, and in particular paragraph 67 as follows:

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.

36. It was submitted that the court needs to look at the decision as a whole and see what the RRT regarded as relevant. Just because something is not specifically included in the reasons does not of itself provide a basis for judicial review, according to the respondent's submissions.

37. It was submitted that the findings by the RRT in relation to the future conduct of the applicant were based upon findings of his activities in the past in China and PNG and, as I understand the submissions, in relying upon the High Court decision in Durairajasingham it was submitted that there is no requirement of the RRT to then having not accepted the credit of the applicant, as in the present case, to then proceed to give what might be described as a subset of reasons why it accepted or rejected the individual pieces of evidence.

38. In my view, the RRT on a proper reading of its decision has found it inherently unlikely that the applicant would face a real fear of persecution should he return to China. It was not satisfied that he would practice his beliefs in such a manner as to attract the attention of the Chinese authorities. As indicated earlier in this judgment, in my view, those findings were reasonably open to the RRT. I do not accept that it has made a finding that the applicant should return in a sense on a conditional basis with the condition being to refrain from open practice of his religion, but rather that it accepted that he was likely to practice his religion in a manner that would not attract the attention of the authorities.

39. Having regard to its findings of fact, including its detailed analysis of material provided by the applicant which now seems not to be challenged as a forgery, it is clear that in the circumstances it was open to the RRT to make certain findings as to the applicant's credit and to then use those findings to otherwise reach its relevant conclusion. This is not a case where, in my view, it could properly be said that there has been a failure to correctly interpret the meaning of "religion" or a failure of a kind which would otherwise attract judicial intervention.

Conclusion

40. It follows therefore for the reasons given that the application should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 5 November 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia