AMC15 v Minister for Immigration

[2016] FCCA 1458

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1458

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – applicant claimed protection on basis of Christian faith – whether the Tribunal’s review was subject to section 116 of the Constitution – whether the Tribunal violated the applicant’s right to free exercise of thought, conscience, religion or belief – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 414, 430

Constitution (Cth), s.116

Cases cited:
ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003
ABX15 v Minister for Immigration & Border Protection (No 2) [2015] FCCA 3004
Adelaide Company of Jehovah's Witnesses v Commonwealth (1943) 67 CLR 116; [1943] HCA 12
AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68
Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51
Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40

Applicant: AMC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1047 of 2015

Judgment of: Judge Smith

Hearing date: 24 May 2016

Date of Last Submission: 24 May 2016

Delivered at: Sydney

Delivered on: 24 May 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Russell Byrnes Solicitor

Solicitors for the Respondents: Mr A Markus, Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1047 of 2015

AMC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal[1]dated 13 March 2015. The Tribunal affirmed a decision of a delegate of the Minister made on 14 August 2013 to refuse to grant the applicant a protection visa.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. There are three grounds in the amended application They are:

   i)that the Tribunal violated the second limb of s.116 of the Constitution (Cth) by imposing religious observance on the applicant;

   ii)the Tribunal violated the third limb of s.116 of the Constitution by prohibiting the applicant’s free exercise of religion; and

   iii)the Tribunal violated the applicant’s right to free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia.

3. Due to the relatively confined nature of the grounds it is not necessary to deal in any detail with all of the material before the Court.

Background

1. The applicant is a citizen of Iran who arrived in Australia on 4 August 2012 as an Irregular Maritime Arrival. The applicant was interviewed by an officer of the Department of Immigration on 18 September 2012. As part of that interview, the applicant was asked why he left his country of nationality. The applicant gave a number of reasons, including the fact that he had sold alcohol, had extramarital relations with a girlfriend which had angered the girlfriend’s father and, thirdly, that he had come to the attention of the security forces in Iran.

2. One of the questions put to the applicant was whether he was a member of any particular social or religious group. The applicant answered “no” to that question. Pursuant to the exercise of the Minister’s power under the Migration Act 1958 (Cth), the applicant was entitled to, and did make an application for a protection visa on 24 December 2012. That application was made, essentially, on the same bases, although slightly expanded, as had been referred to at the interview.

3. On 14 August 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. Essentially, the delegate did not believe the applicant’s claims. The applicant then applied to the Tribunal for review of that decision. It was before the Tribunal that the applicant claimed, for the first time, that he had become a Christian. The applicant said in a statutory declaration given to the Tribunal that he was first introduced to the Christian faith when he was in Korea:

   … However, when I arrived in Australia and after settling into the community I got to know Pastor Keith Pieper and gradually learned more about this faith as Australia is a free country and I was able to research it without being persecuted. I have been baptized in Australia. I have even invited a few people including my brother to the Christian faith. I have decided to continue evangelizing.

   The Iranian regime is based on Islam and is governed by the Sharia which imposes tough penalties on those who leave Islam. If I were to be returned to Iran I will be harmed by the Islamic authorities in Iran due to my religious beliefs.

   …

4. The applicant added another claim that he would be accused of being a spy and imprisoned because he would be a failed asylum seeker on return. The applicant also said that on return to Iran he would continue practising and proselytising Christianity and will attend church and pray and that he would be executed for his beliefs.

Tribunal hearing

1. The applicant attended a hearing before the Tribunal on 25 February 2015. Pastor Piper who was referred to in the applicant’s statutory declaration also accompanied the applicant to the hearing. Pastor Piper also provided a written reference for the applicant dated 30 November 2014, saying, amongst other things, that he had known the applicant since August 2013 when the applicant visited the pastor’s church.

2. The pastor stated that the applicant had been baptised in the church on 9 November 2014 and attended the Thursday bible studies. He said that the applicant seemed to have a strong interest in learning the bible. A reference was also given by another member of the congregation corroborating the applicant’s attendance at the church and his baptism. The Tribunal made its decision on 13 March 2015, affirming the decision of the delegate.

Tribunal’s decision

1. In the Tribunal’s statement of reasons prepared under s.430 of the Act, the Tribunal first set out in some detail the evidence in support of the applicant’s claims before dealing with each of the particular claims made by the applicant.

2. In respect of the applicant’s claim concerning his girlfriend’s family, the Tribunal rejected the underlying claims as implausible and found that he had fabricated claims for the purpose of obtaining a protection visa.

3. The Tribunal then turned to the claim concerning the problems with the Basij, that is, the security forces in Iran to which I have referred earlier. Again, the Tribunal found credibility issues with those claims and rejected them.

4. The Tribunal then turned to the claim of conversion to Christianity. It set out over two pages, the evidence given in support of that claim at the hearing, including questions asked by it of the applicant at the hearing concerning the applicant’s knowledge of various matters in the Christian religion. The Tribunal set out its findings on this issue at [82];

   Having considered the above claims and all the evidence, the Tribunal finds that the applicant is not a truthful witness. The Tribunal accepts that, whilst in Australia, the applicant has attended Church and classes to learn about Christianity and was baptized on 9 November 2014. The Tribunal does not accept that the applicant is a genuine convert to Christianity. It follows that the Tribunal does not accept that he has a commitment to practice Christianity, attend Church, pray or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal does not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.

5. The Tribunal also then rejected the claim concerning the failed asylum seeker from a Western country and concluded that the applicant did not have a well-founded fear for a Convention related persecution for any of the reasons put forward by the applicant and so did not satisfy the criterion in sub-s.36(2)(a) of the Act. Essentially, on the basis of the same findings of fact, the Tribunal was not satisfied that the applicant satisfied the criterion in sub-s.36(2)(aa).

Consideration

1. The principal difficulty with the grounds in the application is that, contrary to the basis upon which they are put forward, the Tribunal did not in any way impose religious observance on the applicant, prohibit the applicant’s free exercise of religion or violate the applicant’s right to the free exercise of thought, conscience, religion or belief as enshrined in customary international law. In SZUDI v Minister for Immigration & Border Protection [2015] FCA 530, Siopis J rejected similar arguments, finding at [24] and [25] that nothing in the Migration Act imposed any restriction upon Christianity.

2. I considered similar arguments in the decision in ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003 (“ABX15”) and ABX15 v Minister for Immigration & Border Protection (No 2) [2015] FCCA 3004 (“ABX15 (No 2)”). In ABX15 at [26] – [30], I made the following findings:

   26.Thirdly, the ground appears wholly misconceived. The task of the Tribunal is no more and no less than to review the decision of the delegate of the Minister to refuse to grant the applicant a protection visa: Migration Act 1958 (Cth) s.414. That required the Tribunal to determine, on the evidence and other material before it, whether it was satisfied that the applicant met the criteria for the grant of that visa. Ordinarily, as was the case here, that meant that the Tribunal had to make findings of fact. The facts that had to be found by the Tribunal depended entirely upon the claims made by the applicant.

   27.The applicant claimed that he was a person to whom Australia owed protection obligations because he had a well-founded fear of persecution in Iran by reason of his religion, namely Christianity. In order to satisfy the Tribunal of this claim the applicant put forward a number of matters including a statement by him as to what had happened to him in Iran, a reference as to his attendance at church in Australia, and evidence that he had been baptised in that church. He also gave oral evidence at a hearing conducted by the Tribunal. Part of his evidence at the hearing was given in response to questions asked of him by the Tribunal. Amongst those questions (and the ones relied upon by the applicant for present purposes) were whether the applicant’s Christian girlfriend in Iran went to church in Iran, what websites he had read about Christianity in Iran (in response to his claim that he had done Google searches about Christianity there), and what being a Christian meant to him.

   28.None of this questioning violated the applicant’s freedom of religion.

   29.After considering all of the evidence the Tribunal formed the view that the applicant had commenced participating and engaging in Christian activities in Australia for the sole purpose of supporting his claims for protection. It also found that the applicant had not become a genuine and committed adherent and practitioner of Christianity. Those findings did not violate the applicant’s freedom of religion. They were findings made in the course of the review conducted by the Tribunal in accordance with its obligations under the Migration Act. The findings were part of the reasons for which the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a visa.

   30.While it is true that the applicant will be unable to lawfully stay in Australia without a visa, that is not to say that any consequence of that fact is caused directly by any of the Tribunal’s conduct. That would be akin to saying that having a head was the cause of decapitation simply because the possession of a head is an essential precondition to decapitation: see March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 523 (Deane J).

3. I made a similar finding in ABX15 (No 2) at [27].

4. Mr Markus, who appeared for the Minister, argued that, in those circumstances, no constitutional issues arose and, as was recently stated by the Full Court in AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68 at [53], it is therefore unnecessary and inappropriate to determine the grounds said to arise under the Constitution by reference to Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51.

5. In reply, Mr Williams referred to two cases, being Adelaide Company of Jehovah's Witnesses v Commonwealth (1943) 67 CLR 116; [1943] HCA 12 and Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120; [1983] HCA 40. Mr Williams said that in those decisions the High Court refrained from giving any concrete definition of religion and as a consequence of that, the way in which the Tribunal proceeded was, in fact, a violation of the applicant’s religious freedom and his free exercise of religion as set out in the amended application. I disagree. Essentially, all that the Tribunal did pursuant to its duty under s.414 of the Act to review the decision of the delegate, was to assess the factual claims made by the applicant, to ask questions in order to do so and then to make findings based upon the material before it.

6. In my view, particularly given the authorities to which I have referred in this respect, each of the grounds must fail because their underlying foundation does not exist. For those reasons, it is unnecessary to go further, as expressed in ABX15, and consider the constitutionality of what the Tribunal did. It simply does not arise and the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 20 June 2016