AFL20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 726
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AFL20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 726
File number(s): SYG 120 of 2020 Judgment of: JUDGE LAING Date of judgment: 17 August 2023 Catchwords: MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal misunderstood the applicant’s claims – whether the Tribunal’s reasoning was logically open to it – limits of the Court’s role on judicial review – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 7 August 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 120 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFL20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
17 August 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of Lebanon who applied for a protection visa on 4 December 2015.
On 28 September 2016, the Delegate refused the application.
On 18 October 2016, the applicant applied for review of the Delegate’s decision. On 15 August 2019, the applicant appeared before the Tribunal.
On 20 December 2019, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal did not find the applicant’s evidence in relation to his claimed conversion to Christianity to be “credible, reliable and persuasive” (at [24]).
The Tribunal’s concerns regarding the applicant’s evidence may be summarised as follows:
(a)Firstly, the Tribunal found that the applicant had given unclear and inconsistent evidence regarding the timeframe of his claimed decision to accept Christianity as his new faith (at [25]-[29]).
(b)Secondly, the Tribunal found that the applicant’s evidence regarding the steps he had taken to consolidate his knowledge or beliefs was “less than persuasive”, with the applicant giving “confusing and conflicting evidence” regarding what he had read and when (at [30]-[33]).
(c)Thirdly, the Tribunal found that the applicant’s evidence had shifted significantly over time in relation to his experiences in Lebanon and whether anyone knew about his conversion to Christianity. The Tribunal found that the applicant’s claims in this regard had evolved significantly over time (at [34]-[38]).
The Tribunal did not accept that the issues that it had identified in the applicant’s evidence had been affected by any medical or psychological condition that affected his ability to recall events. In this regard, the Tribunal observed that no medical or psychological evidence had been provided in support of the applicant’s claims regarding his state of mind (at [39]).
The Tribunal therefore did not accept that the applicant converted to Christianity, became “deeply interested” in Christianity, read “lots of books” on Christianity or attended church in Lebanon. The Tribunal did not accept that the applicant was perceived to be a Christian or affiliated with any church in Lebanon. The Tribunal did not accept that the applicant had been required to hide his religious beliefs or identity from his family, friends or the community. The Tribunal did not accept that the applicant had received threatening messages from “hardliners” or “fanatics” in his village (at [40]).
The Tribunal did, however, accept that the applicant (at [41]-[43]):
(a)had engaged in a number of conversations with a friend about Christianity while visiting Australia in 2007;
(b)had read literature relating generally to Islamic extremism and Christianity;
(c)was, and continued to be, fond of and attracted to Christianity;
(d)had approached a Greek Orthodox Church in Australia and had completed a catechism course; and
(e)had visited a church near his sister’s house on a number of occasions.
However, the Tribunal was not satisfied that the applicant had ever converted to or adopted the Christian faith (at [43]). The Tribunal found that the applicant’s fondness for or general interest in Christianity had not been viewed adversely by members of his family, extended relatives, friends or members of the community in Lebanon or in Australia (at [43]).
Although the Tribunal rejected the applicant’s claims to have converted to Christianity, it considered that, in any event, country information indicated a tolerant attitude towards conversions in Lebanon (at [44]). The Tribunal found that if the applicant were to return to Lebanon and continued to harbour a fondness for or interest in Christianity at the same level that he had over a number of years, then he would not face a real chance of serious or significant harm (at [45]).
The Tribunal considered that there was no persuasive information before it suggesting that any civil unrest, tension, lack of general security or instability that the applicant was concerned about was faced by him personally. The Tribunal was not satisfied that general unrest or the security situation in Lebanon would expose the applicant to a real chance of persecution. The Tribunal considered that any issues in this regard were faced by the population generally. The Tribunal found that there was no real risk of the applicant suffering significant harm in Lebanon as a result of the general security situation or instability (at [46]-[48]).
Having regard to the above, the Tribunal found that the applicant did not meet the criteria for protection under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). Accordingly, the Tribunal affirmed the Delegate’s decision (at [49]-[51]).
PROCEEDINGS BEFORE THIS COURT
The applicant relies upon an application filed on 16 January 2020 containing the following grounds:
1.The Member of the tribunal misunderstood my claim and conversion to Christianity and the fear of harm if I return overseas to Lebanon.
2.The Member relied on my confusing and conflicting evidence in relation to what I had read and when. That should not lead him to attack my knowledge and my conversion to Christianity and my evidence to be neither reliable nor credible.
3.The Member failed to understand that my admission that I did not reveal myself as a Christian in Lebanon to my Islamic family was because of the fear to be killed as Christianity is not accepted by my Islamic family.
4.Whether my experience in Lebanon was inconsistent, unreliable or unconvincing it does not mean that my love Christianity can be denied and I adopted Christianity and I was converted to Christianity and I am fond of Christian beliefs and teachings and that would attract Muslim family to persecute me.
5.The Tribunal's conclusion that I will not face serious harm and risk if I return to Lebanon is wrong.
6.I do have substantial grounds for believing that there is a real risk that I will be subjected to harm if I return to Lebanon and my fondness of Christianity is discovered.
Grounds 1 and 3
Ground 1 contended that the Tribunal misunderstood the applicant’s claims regarding his conversion to Christianity and his fear of harm if he returned to Lebanon. Relatedly, ground 3 contended that the Tribunal failed to understand that the applicant did not reveal himself as a Christian to his Islamic family due to a fear of being killed.
As summarised above, the Tribunal considered the applicant’s claims to face harm on account of his involvement with Christianity. The Tribunal also considered the applicant’s claim not to have revealed this to his family (and others) due to a fear of being killed.
However, the Tribunal did not accept that the applicant had converted to Christianity, or that he had hidden his religious beliefs or identity from his family, friends or the community (at [40]). This followed from the various credibility issues that the Tribunal had identified in the applicant’s evidence at [24]-[39], which it found had been inconsistent and had evolved in significant respects over time.
The Tribunal’s reasoning, therefore, was not based upon a misunderstanding of the applicant’s claims. It was based upon a non-acceptance of those claims.
Grounds 1 and 3 are therefore not able to succeed.
Grounds 2 and 4
Grounds 2 and 4 took issue with the Tribunal’s reliance upon its findings that the applicant had given inconsistent and otherwise problematic evidence in rejecting his claims.
It is well established that credibility findings are not immune from judicial scrutiny. However, high thresholds attend grounds such as unreasonableness, illogicality and irrationality by which the Tribunal’s reasoning may be challenged. Such thresholds are not met where the Tribunal’s reasoning is logically open to it based upon the evidence that was before it, simply because another decision maker may have reasoned differently: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] (SZMDS) per Crennan and Bell JJ. A high degree of caution attends consideration of whether the Tribunal’s reasoning was logically or reasonably available to the Tribunal: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ. Disagreement alone will not suffice. It is to be recalled that the Court’s role and powers on judicial review are limited. It is the Tribunal, and not the Court, which has been entrusted with making findings in relation to whether or not an applicant’s protection claims ought to be accepted.
The Tribunal in the present case found that the applicant had given inconsistent evidence regarding core aspects of his claims and that his claims had evolved significantly since their first expression (at [24]-[39]). There is nothing in the materials before me to indicate that any part of the Tribunal’s recitation of the applicant’s evidence was not factually open to the Tribunal. The applicant does not contend that his evidence did not contain the inconsistencies identified, nor that it did not evolve in the manner considered by the Tribunal.
The applicant’s objection appears to be to the Tribunal’s conclusions that, on the basis of its credibility reasoning, the applicant’s claims were not to be accepted. This is in circumstances where the applicant provided an explanation for the difficulties in his evidence and, he submits, had converted to Christianity thereby exposing himself to danger.
The Tribunal was not willing to accept the applicant’s explanation for the difficulties in his evidence, in circumstances where the applicant had provided no medical or psychological evidence supporting his claimed state of mind or suggesting that he had depression or any other form of psychological illness affecting his memory (at [39]). The basis of this reasoning is intelligible. The Tribunal was not required to accept uncritically the applicant’s claims.
The inconsistencies in the evidence that the Tribunal identified, together with the evolving nature of the applicant’s evidence, provided an intelligible basis for the Tribunal’s non-acceptance of the applicant’s claims. I am unable to find that the Tribunal’s reasoning in this regard was logically closed to the Tribunal. Whilst another decision maker may have taken a different view of this evidence, this does not demonstrate that the Tribunal’s reasoning was relevantly closed to the Tribunal: SZMDS at [130]-[131].
Whilst the applicant may well disagree with the Tribunal’s conclusions, such disagreement does not provide a sufficient basis for overturning the Tribunal’s decision.
For the above reasons, grounds 2 and 4 are unable to succeed.
Grounds 5 and 6
Grounds 5 and 6 disagreed with the Tribunal’s findings that the applicant would not face a real chance or risk of relevant harm in Lebanon. Ground 6 specifically took issue with the Tribunal’s non-acceptance of the applicant facing a real risk of harm in Lebanon if his fondness for Christianity were discovered.
As I have explained above, this Court has no power to set aside the Tribunal’s decision based upon disagreement alone.
To the extent that the applicant contends that the Tribunal’s findings regarding the risk of harm if his fondness for Christianity were discovered were logically closed to the Tribunal or legally unreasonable, I am unable to accept this on the material before the Court. As was submitted by the Minister, the Tribunal’s finding that the applicant would not face a real risk of harm if his fondness for Christianity were discovered was based, partly, upon the credibility findings that it made. I have found that those findings were relevantly open to the Tribunal. The Tribunal’s finding in this regard was also based upon country information indicating a generally tolerant attitude towards conversions in Lebanon.
These findings were intelligible. It has not been shown that they were based upon any demonstrably incorrect or unavailable interpretation of the material that was before the Tribunal. It has not been demonstrated that these findings were logically closed to the Tribunal.
It follows that this Court does not have any basis for overturning the decision of the Tribunal by reference to grounds 5 or 6.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 17 August 2023
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