Case: Appellant S395/2002 v Minister for Immigration &amp; Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: distinguished
Counsel for the first respondent raised the fact that the Tribunal's reference to the appellant attending a state-sanctioned church may raise similar issues to those which arose in Appellant S395/2002 v Minister for Immigration &amp; Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. However, the federal magistrate distinguished this case on two bases. Firstly, here the Tribunal made a factual finding that the appellant had no deep theological convictions and this finding had no discernable error. There was no equivalent finding in Appellant S395/2002 216 CLR 473. Consequently, the finding based on country information that a person without a deep faith can worship at a state-sanctioned church was open to the Tribunal. Secondly, the Tribunal did not express as a requirement that the appellant had to modify her behaviour but rather was observing it was an option for the appellant. 15 The question then arises as to whether or not the Tribunal committed an error in respect of the Appellant S395/2002 216 CLR 473 issue. In the present case the Tribunal's observations were premised on its findings of fact concerning the scope and depth of the appellant's religious commitment and activities in China and Australia. The Tribunal, after finding that the claims of the appellant were not to be believed, stated: The Tribunal notes that the applicant has the option of attending a state-sanctioned church in Fujian without any adverse consequences. As the Tribunal has not formed the view that the applicant has any deep theological convictions that would impel her to reject the state-sanctioned church, this seems a reasonable solution. The applicant herself has never attended a state-sanctioned church and has no basis on which to say that it would not meet her spiritual needs (not that she claimed this), other than having been told by Mrs Wei that such churches are "very bad". The Tribunal notes that the bibles in use by the state-sanctioned churches "differ very little from other versions available outside China and the Bible text remains sound and intact. It is normal for Patriotic churches to display crosses, crucifixes and portraits of Jesus" (UK Home Office, Country Assessment: China, April 2006 para 6.74). 16 In my view this seems to be a mere observation or note after dealing with the essential elements of the application. 17 The Tribunal asked itself the correct question did the appellant have a well founded fear of persecution on the grounds contended by her? The Tribunal clearly made an inquiry which was directed to the individual appellant and was fact-specific. The Tribunal did not ask (as in Appellant S395/2002 216 CLR 473) whether it was possible for the appellant to live in China in such a way as to avoid adverse consequences. The Tribunal did not ask whether the appellant could avoid persecution. It did not set out any requirement that the appellant modify her behaviour in order to practice her Christianity in China. In my view, an accurate assessment of the factual findings made and reasoning recorded in the Tribunal's reasons for decision discloses no error in this regard. 18 Finally, in submissions before me today reliance was placed upon s 425 of the Act. It seems to me in the circumstances and on the material before the Tribunal and the Federal Magistrates Court that the appellant had ample opportunity to give evidence and present arguments relating to the issues that were before the Tribunal. 19 Another issue was raised today of there being difficulties with the interpreter before the Tribunal. This matter has not been raised before. No specific instances were provided to demonstrate the difficulties. No evidence or material is before me which would enable me to conclude that the appellant was not given a fair hearing or was not able to put her submissions to the Tribunal or be given the opportunity to be heard on the basis of difficulties with the interpreter. I find no basis upon which this Court could intervene upholding this new ground raised today, there being no factual foundation for it.