AAC16 v Minister for Immigration
[2016] FCCA 3001
•23 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAC16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3001 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by jurisdictional error by applying s.91R(3) of the Migration Act 1958 (Cth) into its reasoning in respect of complementary protection criterion – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.91R(3), 36(2) |
| Cases cited: AIG15 v Minister for Immigration & Border Protection [2016] FCCA 891 Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 MZABA v Minister for Immigration & Border Protection [2015] FCA 711 MZZHW v Minister for Immigration & Border Protection [2014] FCA 868 SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7 SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 |
| Applicant: | AAC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 November 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 1 December 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant's application for review of the decision of a delegate of the first respondent dated 4 March 2014 according to law.
The first respondent pay the applicant’s costs fixed in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2 of 2016
| AAC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Iran who arrived in Australia on 10 August 2012. He applied for a protection visa on the basis that he had converted to Christianity from Islam.
There were two relevant criteria for the grant of a protection visa found respectively in sub-ss.36(2)(a) and 36(2)(aa) of the Migration Act1958 (Cth). The first of these criteria effectively required an applicant to meet the definition of a “refugee” in the Refugees Convention[1]. The second criterion reflects Australia’s understanding of its obligations under the “Convention against torture” and the International Covenant on Civil and Political Rights. It is convenient to refer to that criterion as the complementary protection criterion.
[1] The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967.
The applicant’s visa application was refused by a delegate of the Minister and the applicant applied to the Refugee Review Tribunal[2] for review of that decision. On 1 December 2015 the Administrative Appeals Tribunal affirmed the delegate’s decision.
[2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Consideration
The applicant seeks judicial review of the Tribunal’s decision. He argues that the Tribunal’s decision was affected by jurisdictional error because it incorporated its application of s.91R(3) of the Act into its reasoning in respect of the complementary protection criterion, whereas that provision only applies in respect of the refugee criterion.
The Minister accepts that s.91R(3) of the Act has no application to the refugee criterion but contends that, properly understood, the Tribunal’s reasons show that it did not fall into the error asserted by the applicant.
In its statement of reasons for decision, the Tribunal set out, at some length, its consideration of the refugee criterion. This included preliminary findings of fact and inferences drawn by the Tribunal from those findings. The Tribunal referred to s.91R(3) and stated that, in line with that provision, as it was not satisfied that the applicant’s church attendance in Australia was conduct engaged in for any reason other than for the purpose of strengthening his claim to be a refugee, it disregarded that church attendance, the applicant’s association with Christians and study of Christianity.
The Tribunal stated its reasons concerning the complementary protection criterion very briefly. The critical part of its reasoning in this respect were set out in the following paragraph:
[149]Having regard to the Tribunal’s findings in relation to the Refugees Convention and to the relevant PAM3 Guidelines, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm from the Iranian authorities or any other person.
It is understandable that a Tribunal might reason in this way in circumstances where a visa applicant relies on the same factual claims in respect of both the refugee criterion and the complementary protection criterion. However it is a short form of reasoning that is fraught with danger.
In SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7, Judge Driver found that similar reasoning revealed error in the Tribunal’s decision because there was no attempt to distinguish the different tests posed by the two criteria. It will not always be the case that a decision will be flawed by reliance upon the same findings made under the Refugees Convention for purposes of the complementary protection criterion. Each case must depend on its own facts and on what the decision-maker’s reasoning was: SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [56] – [57] (Robertson J); SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [35]; SZTKE v Minister for Immigration & Border Protection [2015] FCA 1002 at [87]; SZTIV v Minister for Immigration & Border Protection [2015] FCA 108 at [10]; MZZHW v Minister for Immigration & Border Protection [2014] FCA 868 at [6]; MZABA v Minister for Immigration & Border Protection [2015] FCA 711 at [92]; AIG15 v Minister for Immigration & Border Protection [2016] FCCA 891 at [17].
The issue is to be determined by regard to the whole of the Tribunal’s reasons. This is done with the caveat that the reasons are not to be scrutinised too closely (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6), although not necessarily by resolving every ambiguity in the Tribunal’s favour: SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26] (Stone J).
Before turning to consider the Tribunal’s findings in more detail, it is necessary to consider the scope and operation of s.91R(3). That section provides:
For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The purpose of that provision is to address the situation in which an applicant for a protection visa had deliberately engaged in conduct in Australia to strengthen his or her claim for protection under the Refugees Convention. While that purpose is relatively clear, the language of the section is ambiguous. On one view, the provision could mean that the decision-maker must ignore, for all purposes including questions of credit finding, any conduct in Australia unless the condition in subparagraph (b) is met. The meaning of the provision was considered by the High Court in Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 (“SZJGV”).
The High Court held, by majority, that the requirement in s.91R(3) to disregard certain conduct was not at large but, rather, only for the purposes of any favourable inference that might be drawn from that conduct. French CJ and Bell J said, at [12]:
The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word “whether”. However, the Solicitor-General's submission does lead to consideration of an alternative construction, which is to read “whether” as “that”: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term “whether” in par (a). But such misuse is not entirely without precedent. In this case, the substituted text corrects what would be an obvious drafting error were “whether” to be construed according to its ordinary and natural meaning. On the alternative construction, par (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in par (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the sub-section and avoids absurd results. Upon that construction the appeals must be allowed.
(Citations omitted)
Crennan and Kiefel JJ said, at [64]:
… If it is determined that evidence of the conduct would strengthen the person's claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
The complementary protection criterion was introduced into the Act after the decision in SZJGV. There was no amendment to s.91R(3) to make it applicable to the new criterion. That, together with the plain words of the provision, means that the parties were correct to proceed on the basis that s.91R(3) has no application to consideration of whether the conflict protection criterion is satisfied: see also SZVIF v Minister for Immigration & Border Protection [2016] FCA 601 at [15] (Wigney J).
The applicant’s claims concerning his activities in Australia can be briefly stated. When he first arrived in Australia the applicant went to a Catholic church in Darwin. When he lodged his protection visa application, the applicant started attending the New Hope Baptist church in Doncaster/Blackburn North, Victoria. After the delegate refused his application (on 4 March 2014) the applicant started attending a church in Essendon; however, the services were conducted in English and it was difficult for him to follow the teachings.
The applicant ceased attending church in July 2014 after a car accident and started attending another church in April 2015, this time in Ascot Vale, Victoria. He went to bible classes on Tuesdays and mass on Sundays. On 15 August 2015 the applicant was formally admitted as a Catechumen of the Catholic Church, that is, a convert to Christianity receiving training in doctrine and discipline before baptism.
The Tribunal made the following relevant findings as part of its consideration of the Refugee Convention criterion:
a)The applicant had been attending regular classes and church services at the Catholic church in Ascot Vale since March or April 2015, and in 2012 was attending a Catholic church in Darwin: [94][3];
b)Between late 2012 and March-April 2015 the applicant also attended an Orthodox church in Essendon a few times but he decided it was not the right church for him and stopped going: [95];
c)The applicant never attempted to enter a church in Tehran and was not a regular attendee at the Baptist church in Doncaster/Blackburn North, Victoria: [102];
d)Between the time of the applicant’s release from detention around November 2012 and March-April 2015, the applicant only attended the Blackburn North church a couple of times and an Orthodox church in Essendon about six times. Shortly after the departmental interview in October 2013 and up until March or April 2015 he stopped going to church altogether: [105];
e)The applicant’s claimed conversion to Christianity is not genuine, despite his becoming a catechumen: [116];
f)Before coming to Australia, the applicant did not attend any study groups, did not learn about Christianity from any friends or from a man named Ahmad, did not try to enter a church in Tehran, and did not associate with other Christians as he had claimed. He made no research into and had no contact with any other religions: [117];
g)Since being in Australia, the applicant’s church attendance was at no time engaged in for any reason other than for the purpose of strengthening his claim to be a refugee. For that reason, the Tribunal disregarded the applicant’s church attendance, association with Christians and study of Christianity in Australia: [120];
h)The applicant has never been of adverse interest to the Iranian authorities for reasons of association with Christianity or Christians: [122];
i)There was no real chance that the applicant’s limited contact with Christian churches in Australia or his becoming a catechumen or converting would become known to the Iranian authorities upon his return to Iran: [123];
j)The applicant will not engage in Christian practices upon his return to Iran and will not be viewed as or perceived to be, a Christian, an agnostic, an atheist or an apostate for any reason relating to his claimed conversion to Christianity: [123].
[3] Pinpoint reference to Tribunal’s decision.
There appears at first to be some tension between the Tribunal’s statement, at [120], that it disregarded the applicant’s church attendance, association with Christians and study of Christianity and its reference, at [123], to his “limited contact with Christian churches in Australia”, his becoming a catechumen and conversion to Christianity. The tension is explained, however, by the fact, as explained above, that s.91R(3) only prevents conduct in Australia being used favourably to an applicant. The findings at [123] were not favourable to the applicant and so were made conformably with the Tribunal’s statement at [120]. The same reasoning applies to the Tribunal’s statement, at [105], that if the applicant had fled Iran because he wanted to exercise his Christian religion freely, he would have been going to church more regularly at least up to the time of his accident in mid-2014.
However, that does not mean that the Tribunal did not disregard the relevant conduct in making other findings. It specifically said that it had done so. That leaves the question of which findings were made disregarding the applicant’s limited contact with Christian churches in Australia, his becoming a catechumen and conversion to Christianity.
One of the critical findings made by the Tribunal was that the applicant’s conversion to Christianity was not genuine. Importantly, this finding led the Tribunal to conclude, at [123], that the applicant would not engage in any Christian related practices upon return to Iran. The Tribunal’s reasons about the applicant’s conversion were as follows:
[116]The Tribunal concludes that the applicant’s claimed conversion to Christianity is not genuine, despite his becoming catechumen. The Tribunal finds that the applicant is not a witness of truth. In making that assessment the Tribunal notes that for the reasons set out above, the Tribunal has not accepted any of his evidence about his Christian activities in Iran.
This paragraph suggests that the Tribunal considered that the fact that the applicant had become a catechumen might support the applicant’s claim to have genuinely converted to Christianity. However, accepting what the Tribunal said about the operation of s.91R(3) and inferring that the reference to study of Christianity included a reference to the applicant being a catechumen, the Tribunal must have disregarded that fact for the purposes of determining whether the applicant had genuinely converted to Christianity. If that was the case, it may be concluded that the finding about genuineness was affected by the Tribunal’s application of s.91R(3). The corollary of that is that, when the Tribunal simply adopted this finding for the purpose of its consideration of the complementary protection criterion, it wrongly applied s.91R(3).
There are two indications that this consequence does not follow. First, the Tribunal’s reasons shows that it was at least aware that s.91R(3) operated only in respect of the refugee criterion. At [119] it stated:
Given that the applicant’s conduct in Australia is relevant to his refugee claims, the Tribunal is required to consider whether his conduct in Australia must be disregarded under section 91R(3).
No such statement was made in respect of the complementary protection criterion.
I do not think, however, that this overcomes the difficulty that arises from the Tribunal’s unadulterated adoption of its refugee findings for the purposes of the complementary protection criterion. Even though the Tribunal may have been aware of the limited operation of s.91R(3), there is nothing to indicate that that awareness formed any part of its reasoning process.
Secondly, the Tribunal’s finding that the applicant’s church attendance was only engaged in to strengthen his refugee claims, supported the Tribunal’s finding that the applicant’s conversion was not genuine. The problem with this is that the Tribunal did not expressly say that it relied on this finding to support any conclusion other than that s.91R(3) required it to disregard the applicant’s conduct in Australia. The danger with this consideration is that inferring reasoning beyond what it set out in the Tribunal’s own words might exceed the proper limits of judicial review.
Conclusion
For those reasons, I conclude that the Tribunal did fall into the error identified by the applicant. By failing to disaggregate the effect of s.91R(3) from its consideration of the complementary protection criterion the Tribunal limited its consideration of that criterion and so constructively failed to exercise its jurisdiction.
For those reasons the application must succeed and the first respondent must pay the applicant’s costs which I set in the amount referred to in the Court’s Rules. As indicated at the hearing of the matter, either party may file written submissions in respect of the appropriate costs order within 7 days.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2016
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