APN17 v Minister for Immigration - [2019] FCCA 1990

FEDERAL CIRCUIT COURT OF AUSTRALIA

APN17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1990

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether reasonably open to Tribunal to find applicant was not a genuine convert to Christianity – whether Tribunal failed to consider claim – whether applicant denied procedural fairness by Tribunal failing to disclose 438 Certificate – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 45AA, 91R, 438

Migration Regulations 1994 (Cth), reg.2.08F

Cases cited:

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

Applicant:

APN17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 431 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

20 July 2018

Date of Last Submission:

20 July 2018

Delivered at:

Sydney

Delivered on:

23 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr J Williams (direct access)

Solicitors for the First Respondents:

Mr A Markus of Australian Government Solicitors

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 431 of 2017

APN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a citizen of Iran, applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XD) visa (Protection visa).

Background

On 2 August 2013 the applicant applied for a Protection (Class XA) visa. A delegate of the Minister refused that application on 9 January 2015. A differently constituted Tribunal affirmed the delegate’s decision on 3 February 2016. The Tribunal’s decision, however, was quashed on 25 July 2016 by an order of this Court because the previously constituted Tribunal, contrary to s.45AA of the Migration Act 1958 (Cth) (Act) and reg.2.08F of the Migration Regulations 1994 (Cth), failed to treat the applicant’s application as being an application for a Protection (Class XD) visa.

Claims for protection

The applicant stated his claims for protection on a number of occasions. One is in a statement that formed part of his application for a Protection (Class XA) visa.[1] The applicant there claimed he is Iranian and a Muslim Shia. The applicant and his brother had a real estate business. They…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1990
Decision Date: 23 July 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision not to grant the applicant a protection visa. The applicant contended that the Tribunal had erred in finding that he was not a genuine convert to Christianity, that it had failed to consider his claim, and that he had been denied procedural fairness by the Tribunal's failure to disclose a 438 Certificate. The court was asked to determine whether these alleged errors constituted jurisdictional error.

The primary legal issue before the court was whether the Tribunal had made a jurisdictional error in its assessment of the applicant's claim for a protection visa. Specifically, the court considered whether there was a sufficient logical or evidentiary basis for the Tribunal's finding that the applicant's conduct in Australia was other than for the purpose of strengthening his refugee claims, and whether the Tribunal had misinterpreted, misunderstood, or misapplied section 91R(3) of the Migration Act 1958 (Cth) by disregarding certain conduct. This involved examining whether the Tribunal had correctly applied the principles established in *Minister for Immigration and Citizenship v SZJGV* regarding the legislative purpose and evidentiary effect of section 91R(3).

The court analysed the Tribunal's reasons, noting that the Tribunal had found the applicant's baptism, church attendance, and Bible classes were undertaken deliberately and solely to improve his refugee status. Consequently, the Tribunal concluded that section 91R(3) required these actions to be disregarded. The Tribunal also found that the applicant's conversion was not genuine, evidenced by his failure to inform relatives or friends in Iran of his conversion and his unwillingness to preach or convert others upon return. Furthermore, the Tribunal found that a tattoo the applicant had obtained was for the purpose of establishing a basis for protection, and thus, pursuant to section 91R(3), this evidence was also to be disregarded. The court considered the High Court's pronouncements that section 91R(3) is intended to prevent applicants from relying on or gaining advantage from conduct within Australia aimed at strengthening their refugee claims, and that if conduct is found to have been solely motivated by a desire to strengthen a claim, its evidentiary effect must be assessed and potentially disregarded.

The court found no jurisdictional error in the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ground 3 of the amended application is as follows:The decision of the Tribunal was affected by jurisdictional error as there was not a sufficient logical or evidentiary basis for the Tribunal to find at [65] of the decision record that the applicant’s conduct in Australia was “otherwise” than for the purpose of strengthening of his refugee claims. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law with regard to section 91R(3) of the Migration Act 1958 (Cth) and by disregarding this conduct in the assessment of the refugee criterion. The particulars to this ground refers to paragraphs 39, 41, 45, 65, 66, 67, and 68 of the Tribunal’s reasons. What paragraph (b) of the particulars quotes as paragraph 41 of the Tribunal’s reasons is incorrect, and it appears to quote a passage from an unrelated decision of the Tribunal. Paragraphs 39 and 45 of the Tribunal’s reason refer to the Tribunal advising the applicant about s.91R(3) of the Act; paragraph 65 consists of the Tribunal’s confirming that, given the finding in paragraph 64 of its reasons that the applicant’s actions in being baptised, attending church, and attending Bible classes were done deliberately and with the sole purpose of improving his refugee status, s.91R(3) of the Act requires the Tribunal to disregard those actions; paragraph 66 records the Tribunal’s findings that, given the Tribunal has not accepted the applicant’s conversion to Christianity was genuine, the applicant did not tell his relatives or friends in Iran that he had converted, and he would not preach the Gospel or try to convert people if he returns to Iran; and paragraph 68 of the Tribunal’s reasons records the finding that the applicant’s actions in having the tattoo drawn on him was for the purpose of establishing a basis for protection and that, because of s.91R(3) of the Act, the Tribunal is required to disregard the tattoo when determining whether the applicant has a well-founded fear of persecution. In his written submissions, counsel repeats the matters stated in ground 3, but quotes two passages from the judgments of the High Court in Minister for Immigration and Citizenship v SZJGV.[26] The first is the following passage from the judgment of French CJ and Bell J:[27]The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2).[26] [2009] HCA 40[27] [2009] HCA 40, at [9] The second is the following passage from the judgment of Crennan and Kiefel JJ (as Kiefel CJ then was):[28]It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. 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.[28] [2009] HCA 40, at [64]