ABX15 v Minister for Immigration and Anor (No.2)
[2015] FCCA 3004
•27 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABX15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2015] FCCA 3004 |
| Catchwords: MIGRATION – Protection visa application – review of Refugee Review Tribunal decision – applicant claimed protection on basis of Christian faith – whether the Tribunal’s review was subject to section 116 of the Constitution – whether the Tribunal imposed religious observance on the applicant – application dismissed. |
| Legislation: Constitution (Cth), s.116 Migration Act 1958 (Cth), ss.36(2), 36(2)(aa), 91R(3) |
| ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003 Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 Attorney-General (Vic); ex rel Black v The Commonwealth (1981) 146 CLR 559 Kruger v Commonwealth (1997) 190 CLR 1 McCloy v New South Wales (2015) 89 ALJR 857; [2015] HCA 34 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159 MZZAS v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 757 MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80 SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 SZFMK v Minister for Immigration & Citizenship (2010) 119 ALD 123, [2010] FCA 1287 SZHJH v Minister for Immigration & Citizenship [2008] FCA 198 SZJKS v Minister for Immigration & Citizenship [2008] FCA 335 SZLUS v Minister for Immigration & Citizenship [2008] FCA 1917 SZUDI v Minister for Immigration & Border Protection [2015] FCA 530 WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 |
| Applicant: | ABX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 539 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 October 2015 |
| Date of Last Submission: | 6 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams |
| Solicitor for the Respondents: | Mr A. Markus, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 539 of 2015
| ABX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings is a citizen of Iran who seeks asylum in Australia on the basis of his claim that if he were to return to Iran he would be persecuted for having converted to Christianity and also because his brother had converted to Christianity. The Refugee Review Tribunal[1] asked the applicant a number of questions concerning his Christianity at a hearing held by it and ultimately found that he was not a genuine Christian. The issue in these proceedings is whether, by asking those questions and making that finding, the Tribunal contravened s.116 of the Constitution (Cth).
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015, s.3 sch.2.
At the hearing of this matter the applicant sought leave to amend the grounds in his application. That application was refused: see ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003.
Background
The applicant arrived in Australia on 11 June 2012 by boat without a visa. On 4 and 23 July 2012 he was interviewed by an officer of the Department of Immigration. When he was asked why he left his country of nationality he explained that his life was in danger because his brother had become a Christian and he and other family members had been threatened by the Basij. He explained that he too had become attracted to the Christian faith and wanted to become a Christian.
On 4 December 2012 the applicant lodged an application for a protection visa. In support of that application he repeated his claims based upon his brother’s conversion to Christianity and threats from the Basij and added that since he had been in Australia he had converted to Christianity and had been baptised. In support of that claim, the applicant produced a reference from a person who had attended the same church as him in Sydney and a certificate of baptism which indicated the applicant had been baptised in that church on 4 November 2012.
On 1 August 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that the applicant had fabricated his claims in relation to his brother and that, while the applicant showed some understanding of the Christian faith and principles and had read parts of the Bible since his arrival in Australia, he did not hold a genuine personal affiliation with and did not identify with the religion. The applicant applied to the Tribunal for review of that decision.
The applicant appears to have been assisted by lawyers at the time of the visa application and throughout the review. In written submissions dated 18 October 2013 his lawyers addressed each of the delegate’s findings on credibility and argued, amongst other things, that it was open to the Tribunal to find that the applicant’s conversion to Christianity was genuine and that if he were sent back to Iran he would continue to practice his Christian faith.
The applicant attended a hearing conducted by the Tribunal, together with a representative, on 8 December 2014. There is no transcript in evidence of that hearing; however, a description of what occurred at the hearing is set out in the Tribunal’s reasons for decision. It will be necessary to return to some of the questions asked in due course. For present purposes it may be noted that the Tribunal asked the applicant a number of questions about his claims including questions which went to his religion.
After the hearing the applicant submitted a number of further documents including a statutory declaration made by him giving further details of his claims.
The Tribunal made a decision on 28 January 2015 to affirm the decision not to grant the applicant a protection visa.
The Tribunal’s decision
The Tribunal first assessed the applicant’s credibility. It found that the applicant was not a reliable or credible witness. The Tribunal did not accept that his evidence about what occurred to him, his father and family in Iran was based on his personal or actual experiences and considered that his evidence was fabricated to create a claim to be owed protection. Further, it found that the applicant was not a genuine Christian and that his baptism and subsequent attendance at church in Australia had been undertaken for the purpose of founding and strengthening a claim for protection and not for genuine reasons of his religious beliefs or for other reasons not associated with making an application for a protection. It gave five reasons for these conclusions on credibility.
The first reason was that the applicant had given inconsistent evidence in relation to his claims concerning the Basij. The second reason was that the applicant had given inconsistent evidence about his father’s travel and intentions. The third was that, prior to his interview with the delegate, the applicant made no mention of, and did not refer to, his interest in Christianity in Iran but that during that interview he said that he had first developed an interest in Christianity five or six years ago, namely in Iran. The fourth reason was that his answers to various questions were hesitant, vague and lacking in detail. The fifth reason was that the applicant’s evidence about his contact with Christians and the church in Australia changed over time and, in some respects was vague, hesitant and confusing.
For those reasons the Tribunal rejected the applicant’s claims based upon Christianity (both his own and his brother’s). It also rejected the claim made by the applicant that he would suffer harm for reason of being a failed asylum seeker.
Consideration
The application for review filed on 4 March 2015 contains 65 paragraphs and 7 grounds. Only one ground was pressed. That ground was:
Ground 3: Contrary to Law
47.The second respondent made a series of adverse findings regarding the applicant’s conversion to Christianity, which were otherwise contrary to section 116 of the Constitution.
Particulars
Section 116 of the Constitution
48.Section 116 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution) provides that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ (sic)
The Applicant’s Religious Conversion to Christianity
49.The second respondent made a series of adverse credibility findings regarding the applicant’s practice of Christianity, particularised at [9]-[33], (a)-(q) above.
50.The second respondent exercised power under the Migration Act 1958 (Cth), in particular sections 36(2)(a), (aa), regarding the applicant’s conversion of (sic) Christianity in Iran and Australia, in a manner which impermissibly imposed religious observance on the applicant, prohibited the applicant’s free exercise of religion, or imposed religious test on the applicant in violation of the applicant’s right to freedom of religion, contrary to section 116 of the Constitution.
The particulars referred to at [49] of the application were not relied upon by the applicant in oral submissions. Rather, he argued that the Tribunal impermissibly imposed religious observance on the applicant by testing, examining, inspecting, scrutinising his religious beliefs and practices and drawing conclusions from those questions that he was not a genuine Christian. The following particular matters were relied upon in the applicant’s written submissions (the references being to paragraphs in the Tribunal statement of reasons):
a)at [19] the Tribunal asked if the applicant and his friend had attended church in Iran;
b)at [23] the Tribunal asked what Christian websites the applicant had read in Iran;
c)at [26] the Tribunal asked the applicant to describe what being Christian meant to him;
d)at [26] the Tribunal asked what was the most significant date in the Christian calendar;
e)at [26] the Tribunal asked the applicant to name the day his [sic] resurrection is celebrated;
f)at [27] the Tribunal asked if it is important for the applicant to go to church;
g)at [28] the Tribunal asked if the applicant attended church in Iran; and
h)at [62] the Tribunal asked at the hearing if the applicant had any evidence about his attendance at a church in Sydney.
The applicant also relied upon the following findings of the Tribunal:
a)at [61] when questioned about his knowledge and understanding of Christianity and what being a Christian meant to him his responses were mostly vague and hesitant and lacking detail;
b)at [62] the Tribunal had concerns with the applicant’s evidence and claims about his contact with Christians and the church in Australia;
c)at [63] the Tribunal had concerns about the reliability of a referee’s view that the applicant appeared to be a sincere and genuine Christian;
d)at [64] the Tribunal had serious concerns about whether the applicant ever attended a church in Sydney or if he did, the number of times he did so, and whether or not his attendance was for genuine religious reasons; and
e)at [67] that the Tribunal had “no confidence in accepting, and does not accept, that the applicant is or ever has been a genuine believer in the doctrines and principles of Christianity or that he is a genuine Christian”.
The applicant argued that these passages showed that the Tribunal imposed religious observance on the applicant in violation of s.116 of the Constitution in five ways. Before turning to those five matters, it is necessary to deal with the argument at the level of the Constitution.
Constitutional arguments
Section 116 of the Constitution provides:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The first observation to make is that words “make any law” makes it clear that this section is not aimed at the Executive but at the Parliament. In Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 Barwick CJ said, at 580 – 581:
The next observation I wish to make as to s. 116 is that it is directed to the making of law. It is not dealing with the administration of a law. But, if that administration is within the ambit of the authority conferred by the statute, and does amount to the establishment of a religion, the statute which supports it will most probably be a statute for establishing a religion and therefore void as offending s. 116. That is so, not because of the manner of the administration but because the statute, properly construed, authorizes it. I say most probably, because the purposive content of the expression “for establishing” must, in any case, be satisfied.
(Emphasis in the original)
Counsel for the applicant argued that this statement was limited to the first limb of s.116, namely that aimed at laws establishing religion. That argument is inconsistent with the clear words of the Chief Justice and the section itself. It would not make any grammatical sense to excise the words “make any law” from the balance of the section so that it only applied to the phrase “law for establishing any religion”. The Court must construe legislative provisions so that they have some meaning, rather than in a way that renders them meaningless.
Counsel for the applicant also argued that there was authority to support the proposition that s.116 was aimed at the Executive. He pointed to a passage in the judgment of Gaudron J in Kruger v Commonwealth (1997) 190 CLR 1 (“Kruger”) at 131-132. However, that passage does not support the applicant’s argument. Further, the argument simply ignores the fact that, immediately prior to the passage, her Honour said, at 131:
… Moreover, as Barwick CJ pointed out in Attorney General (Vict); Ex rel Black v The Commonwealth s 116 is directed to “the making of law”, not “the administration of a law”. …
(Emphasis in original. Citation omitted.)
The second relevant observation concerns the word “for”. In Kruger Gummow J observed, at 160:
… The use of the proposition “for” in the expression in s 116 of the Constitution “for prohibiting the free exercise of any religion” directs attention to the objective or purpose of the law in issue. The question becomes whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved. “Purpose” refers not to the underlying motive but to the end or object the legislation serves.
In McCloy v New South Wales (2015) 89 ALJR 857; [2015] HCA 34 Gageler J, at [132], said this about the purpose or object of a statute:
The object or purpose of a law is what the law is designed to achieve in fact. Identification of what the law is designed to achieve in fact is akin to identification of the “mischief” which the law is designed to address. The object or purpose will sometimes be stated in the text of the law and will sometimes emerge from the context. …
(Citation omitted)
In SZUDI v Minister for Immigration & Border Protection [2015] FCA 530 Siopis J refused an application for leave to extend the period of time to file an application for leave to appeal from a judgment of this Court. In doing so he considered the merits of one of the potential grounds of appeal which was relevantly identical to the ground currently under consideration. His Honour found that there was insufficient merit to warrant an extension of time for bringing the application for leave. In giving his reasons, his Honour referred to the passage in Kruger set out above and then said:
[24]It is obvious that the sections of the Migration Act, which the applicant seeks to impugn, is not legislation for the purpose of imposing any religious observance or prohibiting the free exercise of religion. The purpose of the legislation is to give effect to Australia’s treaty obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and to make provision for the granting of protection visas pursuant to those obligations. It is no part of the purpose of those sections of the Migration Act to impose religious observance or to prohibit the free exercise of any religion.
[25]The impugned powers are incidental and have no purpose other than to permit the Tribunal to determine whether an applicant for a protection visa has satisfied the requirements for the grant of such a visa.
The provisions referred to by his Honour were ss.36(2), 36(2)(aa) and 91R(3) of the Migration Act 1958 (Cth). The first two of those provisions are two of the criteria for the grant of a protection visa and the second relates to matters which the Tribunal may not take into consideration in determining whether protection obligations are owed to an applicant for a protection visa. They are the provisions to which the Tribunal’s questions and findings about the applicant’s Christianity were relevant.
Justice Siopis was correct. In my view it is simply unarguable that any part of the Migration Act had, as its purpose, or any part of its purpose, the imposition of any religious observance or the prohibition of the free exercise of any religion. For that reason, even if the applicant were correct to say that s.116 of the Constitution applied directly to the Executive (which he is not), this ground must fail.
Imposition of religious observance by the Tribunal
Even though this application is to be dismissed for the reasons I have given, I will, for the sake of completeness, address the five matters relied upon by the applicant to establish that there was an imposition of religious observance.
The first is that the Tribunal applied a flawed definition of what is or is not a “genuine” Christian. In this respect he relied upon statements by Latham CJ about the meaning of “religion” in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 123. The problem with this argument is that the Tribunal did not seek to impose any limitation on what is meant by religion or religious belief. It certainly did not suggest that Christianity did not fall within the meaning of those terms. All it did was to disbelieve the applicant when he said that he truly believed in the tenets of that faith.
The second argument is that it was impermissible for the second respondent to explore the first applicant’s level of knowledge and understanding of Christianity. Counsel for the applicant did not explain why this was so and the argument appears to have significant amount of circularity. In any event, he acknowledged that the submission was inconsistent with the authority of the Full Court of the Federal Court in SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 (see also MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80; MZZAS v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 757; Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159; SZFMK v Minister for Immigration & Citizenship (2010) 119 ALD 123, [2010] FCA 1287; SZLUS v Minister for Immigration & Citizenship [2008] FCA 1917; SZJKS v Minister for Immigration & Citizenship [2008] FCA 335; SZHJH v Minister for Immigration & Citizenship [2008] FCA 198; WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2). I am bound to follow that decision and must reject the argument.
The third argument is that it was not permissible for the second respondent to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. Again, counsel for the applicant did not explain why this was so and, again, there is more than a hint of circularity in it. Moreover, as counsel for the applicant acknowledged, the submission is inconsistent with authority that is binding on me that must be rejected for that reason alone: Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108.
The fourth argument is that the Tribunal acted without any formal religious authority, training, knowledge, expertise or experience to impose such tests or draw such conclusions. This argument relies upon the following passage from the judgment of Gray J in Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 (“Wang”) at [16]:
[16]… The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion. …
The applicant’s submissions proceed from a misunderstanding of that passage. In WALT the Full Court of the Federal Court said this of the passage in Wang:
[28]In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
[29]But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
Here, the Tribunal did not decide the review on the basis that there was a minimum standard of knowledge of the tenets of Christianity to be held before the applicant could qualify as a genuine Christian. If it had, there would have been a question whether there was a logical basis for that approach in the material before the Tribunal (cf. SZLSP). In light of that, there was no error of the type described by Gray J in Wang.
The fifth argument made by the applicant was that there was a “sufficient lack of rational or logical connection between the assessment of the applicant’s religious beliefs or practices and the findings” upon which the Tribunal relied to make that assessment. Counsel for the applicant explained that the argument was that, once the Tribunal accepted that the applicant had been baptised, it was illogical to find that he was not a Christian. That submission is wrong. The fact that someone is baptised is, as the Tribunal implicitly accepted, evidence that that person is a Christian. It is commonly known that baptism is the way in which a person is formally admitted into the Christian faith or, perhaps more accurately, into one or other of the Christian churches.
However, the applicant’s argument appears to be based on the logical fallacy of the undistributed middle. This is demonstrated by setting it out as a syllogism: all Christians are baptised, the applicant is baptised, therefore the applicant is Christian (and the Tribunal was illogical in finding otherwise). In order to avoid the fallacy, the applicant must establish that all people who are baptised are Christians. That is simply not the case, just as, although all blackbirds are black, not all black things are blackbirds (and so, the fact that my shirt is black does not necessarily mean that I am wearing a blackbird).
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I the certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 27 November 2015
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