BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1747
•2 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1747
File number(s): MLG 944 of 2020 Judgment of: JUDGE A KELLY Date of judgment: 2 August 2021 Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – judicial review of decision of Administrative Appeals Tribunal – where applicant arrived in Australia by boat – where applicant has been in detention for a significant period – where upon being interviewed at detention centre applicant stated his religion was Muslim and he was unmarried – where after applying for protection visa applicant claimed prior to arriving in Australia he was married and converted to Hinduism – where upon providing documents and making submissions to the Department applicant revealed his conversion to Christianity – where applicant claimed to fear persecution as a Christian convert if returned to Bangladesh – where Tribunal was not satisfied applicant had converted to Christianity otherwise than for the purposes of strengthening his claim to be a refugee – whether applicant’s claim of conversion to Christianity had been properly addressed – whether Tribunal failed to consider letters relied upon as corroborating evidence in support of applicant’s fear of persecution on the basis of conversion to Christianity – whether failure to consider corroborative evidence constituted jurisdictional error – application refused.
Legislation: Migration Act 1958 (Cth) ss 5, 5AAA, 5H, 5J 36, 65, 48B, 430, 474, 476 Cases cited: Anees v Minister for Immigration and Border Protection [2020] FCAFC 28
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Ballas v Department of Education (2020) 102 NSWLR 783
BEP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 80
BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515
Craig v South Australia (1995) 184 CLR 163
DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Minister for Home Affairs v HSKJ (2018) 363 ALR 325
Minister for Home Affairs v Omar: (2019) 272 FCR 589
Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship vSZNSP (2010) 184 FCR 485
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Montenegro v Secretary, Department of Education [2020] FCAFC 210
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, (2021) 95 ALJR 441
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568
Number of paragraphs: 94 Date of hearing: 28 July 2021 Place: Melbourne Counsel for the Applicant: Ms G. Costello, Q.C. Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr M. Hosking Solicitor for the Respondent: Australian Government Solicitor Table of Corrections 3 August 2021 Reasons for judgment, paragraph 81 – surname replaced with BDT20 ORDERS
MLG 944 of 2020 BETWEEN: BDT20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A. KELLY
DATE OF ORDER:
2 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.
The name of the first respondent be amended in the title of the proceeding to
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The amended application dated 14 July 2021 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE A. KELLY
Introduction
By amended application dated 14 July 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 February 2020 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Safe Haven Enterprise Visa (subclass 790) visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
In summary, following the initial rejection of the applicant’s protection claims, a further claim was added based upon the applicant’s fear of harm arising from his conversion to Christianity. For the reasons that follow, I have concluded that no jurisdictional error is disclosed by the manner in which the Tribunal gave consideration to this particular claim including on the basis that no or insufficient attention was given to certain corroborative evidence.
Background
The applicant, a male Bangladeshi citizen now aged 33 years, first came to Australia in late 2012 travelling between Malaysia and Indonesia and then to Australia by boat. The applicant has been in detention, either in the Northern Territory or Victoria, for a significant period.
For that reason alone it is important that these reasons be given without undue delay.
On 5 December 2012, the applicant was interviewed at Wickham Point Immigration Detention Centre in Wickham, Northern Territory (arrival interview). On 18 February 2013, the applicant was again interviewed at Wickham Point Immigration Detention Centre (entry interview). Although each such interview had a limited purpose, in each case the applicant stated his religion was Muslim and that he was unmarried.
The visa history is somewhat extensive. It appears that on 28 August 2015, the applicant was treated as having applied for a SHEV by reason of a decision made under s 48B of the Act. On December 2015, the applicant lodged a further SHEV application together with supporting documentation including a six page statement he had made on 18 December 2015 which outlined the claims he then relied upon in seeking a visa. On 8 February 2016, the applicant applied again for a SHEV together with a statement relating to his grounds for protection. A further copy of the applicant’s statement dated 18 December 2015 was supplied.
On 3 May 2016, the applicant’s migration lawyer delivered, by hand, further documents including a statement of supplementary claims. The further statement dated 3 May 2016 was made by the applicant with the assistance of an interpreter, which ran to 15 paragraphs, and clarified a number of errors in his earlier documentation.
On 6 May 2016, the applicant was invited to attend an interview for the assessment of his protection visa. Following that interview, the applicant’s lawyer supplied a post hearing submission dated 12 July 2016 in which the six claims then being advanced by the applicant were set out including his fear of persecution arising from his “religious beliefs as a Hindu convert/apostate.” As appears from a decisional record of the delegate dated 4 January 2017, the applicant claimed in the course of his protection visa interview held on 11 May 2016 that following his marriage in August 2006 at a Hindu Temple, he renounced Islam and now continued to practice Hinduism. It may be noted that this was the stated position in mid-2016.
On 5 August 2016, the Minister invited the applicant’s lawyer to comment upon adverse information, including the applicant’s claim to fear harm on the basis of religion which may result in the refusal of a SHEV application. On 31 August 2016, the Minister notified the applicant of further adverse information and documentation received. The adverse information put to the applicant arose from his statement during his arrival and entry interviews that he was Muslim and his failure to allude to his conversion to Hinduism. Further information put to the applicant arose from the alleged use of bogus documents. On 5 September 2016, the applicant’s lawyer responded to the adverse information.
On 4 January 2017, a delegate of the Minister refused the applicant’s visa application, finding that the applicant was an “excluded fast track review applicant” as defined in s 5(1) of the Act. By Part 3 of the delegate’s decisional record, consideration was given to the applicant’s claims for protection contained in his original written statement, his supplementary statement, his claims advanced at his protection visa interview and the submissions (verbal and written) made on his behalf by his migration lawyer at and after the protection visa interview. The delegate held serious doubts about the truthfulness of the applicant’s entire claim including whether he had married or converted from Islam to Hinduism. In doing so the delegate acknowledged the limited purpose of the initial interviews but found the applicant’s testimony at the protection visa interviews to be unconvincing and implausible. The delegate concluded the applicant had fabricated a number of his claims in their entirety including his conversion to and practice of Hinduism and his inter-faith marriage.
On 20 February 2018, the Federal Circuit Court set aside that decision and remitted the matter to the Minister. On 24 May 2018, the Minister requested the applicant attend an interview. On 28 May 2018, the applicant provided the following documents to the Department:
(a) a statutory declaration dated May 2018, initialled by the applicant, in which he addressed the subject of “My conversion to Christianity” at [4]-[12];
(b) a record of baptism dated 8 July 2017;
(c) a letter from Major Colin Elkington dated 3 August 2017;
(d) a letter from Pastor David Bone dated 4 August 2017;
(e) a letter from Father Peter Carrucan dated 2 October 2017;
It is convenient to address these three letters in further detail below.
On 8 June 2018, the applicant’s representative made a submission to the Department in support of the visa application. This submission addressed at [8], [17]-[22], [23]-[32] and [42] respectively, the applicant’s claims to fear harm on the basis of religion, including his conversion from Islam to Hinduism and then to Christianity, respectively. The applicant’s representative also provided the following documents to the Department:
(a) a letter from Joshua Millard dated 3 April 2018. Mr Millard, a student Minister, had met the applicant in April or May 2017 while visiting another person in detention. He described having begun a program of Bible studies at the detention centre in
March 2017 and the applicant’s participation and interest in those studies stating, “His faith is clearly a genuine and living faith, which he expresses in participation of Bible study and personal devotion”; and
(b)an undated letter from Sister Colleen Leonard, which is addressed below .
On 11 July 2018, the applicant’s lawyer made a submission respecting adverse information.
On 24 July 2018, a delegate of the Minister made a decision to refuse a SHEV. On the same date, the Department notified the applicant of the refusal of his application and that the decision to do so had been referred under Part 7AA of the Act for a fast track review. It provided a statement of its reasons for the decision.
The decisional record of the delegate addressed the applicant’s claims in detail including the claims of conversion to Hinduism and Christianity. In the latter context, the decisional record identified each of the letters described above. The delegate “accept[ed] that the applicant has converted to Christianity based on the written letters of support provided, his Statutory Declaration and his baptism.” In the summary of findings, the delegate accepted the applicant had converted to Christianity and been baptised into the Catholic Church. The delegate was not satisfied there were substantial grounds for believing that a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, would be that there was a real risk he would face significant harm because of his conversion to Christianity.
On 13 August 2018, the applicant applied to the Department for re-notification of the delegate’s decision and, on 17 August 2018 lodged an application with the Tribunal for the merits review of that decision. Shortly afterward, the applicant appointed a lawyer to represent him in the application. On 31 August 2018, the applicant’s lawyer wrote to the Department contesting the validity of the decision-making process and attached a copy of the Full Court’s order made on 6 August 2018 in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (DBB16), which held, relevantly, that the appellant was not an un-authorised maritime arrival and quashed the decision refusing the visa application. It appears the applicant was also a person who had travelled on the same vessel as DBB16.
On 25 March 2019, the Department advised the applicant of the reassessment of his case, its conclusion that he was not in fact a fast track applicant and renotified him of the refusal of the application and of his right to apply under Part 7 for a merits review by the Tribunal.
On 17 September 2019, the applicant was invited to a Tribunal hearing. The applicant appeared before the Tribunal to give evidence and present arguments on 19 November and 5 December 2019. On each day the applicant was represented by his lawyer. The first hearing was of about three hours duration while the second hearing was of about three hours and 30 minutes duration.
On 13 December 2019, the Tribunal responded to a request from the applicant’s lawyer by supplying a copy of the audio file of the hearings.
On 3 January 2020, the applicant’s lawyer made a post-hearing submission in relation to a number of issues including at section 8, on the topic, Conversion to Christianity.
Tribunal’s decisions
On 21 February 2020, the Tribunal made a decision (Case No 1823743) affirming the decision to refuse the SHEV application. In affirming the decision to refuse the SHEV, the Tribunal provided a statement of reasons for doing so which reasons were comprehensive (Reasons). On the same date, the Tribunal made a further decision (Case No 1907464) in relation to the applicant’s further application that had been lodged on 28 March 2019 which was dismissed for want of jurisdiction (i.e. by reason of the decision given in (Case No 1823743).
In providing an overview of the application for review, the Tribunal identified the basis on which the delegate had refused the visa, twice referring to the applicant’s conversion to Christianity: [4]. The Tribunal addressed separately the progressive series of claims that had been made by or on behalf of the applicant: [17]-[29]. As concerned the claim to fear harm by reason of his conversion to Christianity, the Tribunal observed this claim had been raised by the applicant’s statutory declaration made on 28 May 2018 and again during his further interview with a different delegate on 29 May 2018. The detail of his claims to having converted to Christianity and to fear harm on this account were set out at [23].
As concerned the complaint which is the subject of the amended ground of review, at [24], the Tribunal recorded that the applicant had submitted a copy of his baptismal certificate dated 8 July 2017 together with “copies of letters of support from various Christian religious figures.” In a footnote to this statement, three document identification references within the departmental file were provided. Although some dispute had been raised in relation to the question whether the documents upon which the amended ground of review had been before the Tribunal, upon the parties’ affidavits and exhibits thereto it was common ground they had been before it. In particular, the first two documents (ID 6170453 and 6170454), related to the Millard and Leonard statements, while the third document (ID 6170456), related to an email transmitted on May 31, 2018 by the applicant’s lawyer to the Department attaching copies of the applicant’s baptismal certificate together with the statements of Father Peter Carrucan of the Catholic Archdiocese, Melbourne, Major Colin Elkington, a chaplain with the Salvation Army, and Pastor David Bone of the Innerlife Church.
The Tribunal observed that on 8 June 2018, the applicant’s representative had made a post hearing submission which had included matters relevant to the applicant being targeted as a Christian convert and also due to his status as a member of a religious minority: [25]. It also recognised that the applicant’s representative had addressed the issue in responding to a Departmental request in June 2018, and again in January 2020: [26], [28].
The Tribunal considered in detail the Claimed conversion to Christianity at [87]-[96].
The remainder of the Reasons that followed at [97]-[108] were not suggested to be relevant.
The Tribunal ultimately found that the applicant was not a person in respect to whom Australia has protection obligations, and affirmed the decision to refuse the SHEV application.
Procedural History
On 19 March 2020, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant made on 16 March 2020 to which he exhibited a copy of the Tribunal’s decision (which exhibit was not in the court book).
On 28 April 2020, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the ground that the decision under review was not affected by jurisdictional error.
On 11 May 2020, orders were made, by consent, that the application be listed for final hearing on a date to be advised. Relatedly, parties in the proceeding were notified on 31 May 2021 the matter would be listed before this Court for final hearing on 27 July 2021.
On 14 July 2021, the applicant lodged an amended application, together with submissions, by which the original grounds of review were abandoned and substituted with a single ground of review. On the same date, the applicant filed an affidavit, made by his solicitor, who had assisted the applicant with his visa application, exhibiting documentation transmitted to her by an officer of the Department relating to the applicant’s conversion to Christianity.
On 16 July 2021, an order was made, by consent, vacating orders made by the registrar and substituting orders for the applicant to file and serve any amended application, written submission and affidavits on or before 14 July 2021 and the respondent to file and serve written submissions on or before 21 July 2021.
On 22 July 2021, a submission was filed on behalf of the Minister, together with an affidavit deposed by an officer of the Tribunal, which exhibited each of the letters relied upon as corroborating evidence in support of the applicant’s harm on the basis of conversion to Christianity together with a copy of the applicant’s baptismal certificate.
Judicial review
If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76]. Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Authority’s decision: Act, s 476(2). An error in the process of administrative decision-making will not be jurisdictional and so will not attract an entitlement to relief unless the error was material in the requisite sense: MZAPC v Minister for Immigration and Border Protection [2021] HCA17, [1]-[2], [30]-[34], [60]. The onus of demonstrating error and that it is jurisdictional (including material) lies with the applicant.
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision in relation to the satisfaction of those matters is a decision upon a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ). By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted: Act, s 65.
Applicable principles – consideration of corroborating evidence
The applicable principles were not in dispute.
A criterion for the grant of a protection visa is that the applicant is a refugee: Act, s 36(2)(a). The definition of the term ‘refugee’ is supplied by s 5H and relevantly requires that the person is outside of his or her country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country. In turn, the meaning of the expression “well-founded fear of persecution” is supplied by sub-s 5J(1) and allows that requirement to be established where a person fears being persecuted for reasons of, amongst other things, religion, and that there is a real chance that, if the person returned to their country, he or she would be persecuted for such reason. In turn, sub-ss 5J(2)-(3) identify circumstances in which a person does not have a well-founded fear of persecution. Additionally, sub-s 5J(4)-(5) impose requirements that a person’s fear must be an essential and significant reason for the persecution (which persecution must involve serious harm and systemic and discriminatory conduct) and supplies instances of what constitutes serious harm.
For the purposes of the present application s 5J(6) is of particular importance. It reads:
In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless 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.
In terms, s 5J(6) proscribes consideration of conduct in Australia that might otherwise constitute a reason for having a well-founded fear of persecution of a kind which answers the description in par 5J(1)(a) unless the person satisfies the Minister that the conduct in Australia was engaged in “otherwise than for the purpose of strengthening the person’s claim to be a refugee.” An uncontested finding a person has undertaken conduct in Australia for the purpose of strengthening his or her claim does not “necessarily preclude an administrative decision-maker from accepting that a person may be genuine in holding a particular religious view”: BEP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 80, [51] (Kerr J). Such findings are not mutually exclusive. At the same time, s 5J(6) does not proceed upon an embedded assumption that particular conduct had been engaged in, in Australia, for the purpose of strengthening a claim to be a refugee. In cases where a visa applicant relies upon a claim hinging on conduct post-arrival in Australia, s 5J(6) merely requires that where it applies, the Tribunal must disregard such conduct: cf Act, s 5AAA(2).
The obligation to consider an applicant’s claims is a Tribunal’s core function of merits review. The Tribunal may fall into jurisdictional error if it fails to consider material before it that is of sufficient importance that the failure to consider that material amounts to a failure by it to perform its statutory task: Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99, [98], [111]-[112]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [31], [46], [70]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, [47]-[54]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [62].
As noted, the applicant bears the onus of persuading the court of error: MZYTS, [53]. Once it has been demonstrated that the particular material was before the Tribunal, to establish jurisdictional error on the ground of failure to consider material of that kind, the applicant must show that: (1) the proper inference to draw is that the Tribunal in fact failed to consider it; and, (2) the material which it failed to consider was of such importance that the failure to consider it amounted to a failure to perform the core statutory function of review.
The Tribunal must provide a written statement which sets out its decision, the reasons for the decision and, relevantly, findings on any material questions of fact with reference to the evidence or any other material on which those findings of fact were based: Act, s 430(1).
The absence of reference to evidence in the reasons of a decision-maker may support an inference that that evidence had not been considered or had not been considered to be material to the claims being made and so support an inference of jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [1], [34], [68], [44], [69]; MZYTS (2013) 230 FCR 431, [48]-[52]; SZSRS (2014) 309 ALR 67, [33]-[34]; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [42]-[47]. However, the conclusion that a decision-maker has failed to consider a matter, including relevant material, does not of itself justify a finding of legal error. Failure to consider relevant material in the course of administrative decision making that is sufficient to justify a conclusion of jurisdictional error will arise where the material was of central importance to the subject of the review: SZRKT (2013) 212 FCR 99, [97], [102], [112]. There, Robertson J held that in the evaluation of whether a Tribunal was obliged to consider corroborative evidence, factors to be taken into account included the cogency of the evidentiary material and the place where that material was properly located in the assessment of an applicant’s claims: see also ARG15 (2016) 250 FCR 109, [52]; DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411, [56].
Notwithstanding the obligations in s 430 of the Act, inferential reasoning that a matter not mentioned by a decision-maker was not considered, or not considered to be material, is not mandatory and may be displaced where contrary indications are properly available: Anees v Minister for Immigration and Border Protection [2020] FCAFC 28, [53]. Yet, in some cases the inference may be appropriate to draw, particularly where a decision-maker’s reasons are devoid of any consideration of a submission that is central to a party’s case: Montenegro v Secretary, Department of Education [2020] FCAFC 210, [43]. Nor does the accepted approach to reading the reasons of an administrative decision-maker require a court on judicial review “to assume that a vital issue was addressed when there is no evidence of this”, particularly where the general thrust of the reasoning suggests an issue had been overlooked: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9, [26]; Ballas v Department of Education (2020) 102 NSWLR 783, [79].
Where corroborative material has not been taken into account, the legal consequences of such failure “is a case specific enquiry and is not one which should be analysed by reference to fixed categories or formulas”: SZRKT, [77]-[78]. In SZRKT, Robertson J held “Thus, merely to ignore ‘relevant material’ does not establish jurisdictional error”: [97], [122]. His Honour also cited the Full Court’s reasoning in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, [46], (2003) 236 FCR 593, that it was plainly not necessary for a decision-maker to refer to every piece of evidence and every contention made.
Although it was not the subject of detailed argument, upon the settled principle that jurisdictional error is not made out merely by showing that relevant material had been ignored, I agree in the view that it is too wide a proposition to accept that jurisdictional error will necessarily be established if the ignored material might have had a bearing on the outcome: cf Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [58]-[59] (Katzman, Griffiths and Wigney JJ); BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515, [15] (North and Charlesworth JJ).
In SZRKT, Robertson J further held that no clear distinction existed between claims and evidence and that the “fundamental question must be the importance of the material to the exercise of the Tribunal function and thus the seriousness of any error.” His Honour held that “whether the tribunal is obliged to consider a document or documents will depend upon the circumstances of the case and the nature of the document”: [111]-[112].
In discharging the core function of review, a decision-maker must give proper, genuine and realistic consideration to the merits of the case, including by the application of an active intellectual process to her claims and evidence. To do so, a decision-maker must have regard to what is said by way of submissions, bringing his or her mind to bear upon the facts stated in them: Minister for Home Affairs v Omar: [2019] FCAFC 188, 272 FCR 589, [36]-[38].The ambit of the obligation to ‘consider’ will be more precisely defined by the centrality of the claim or evidence that is in issue. Whether or not there has been such a process of ‘consideration’ requires the court to conduct an evaluative judgment.
Overlaying the principles considered above is the manner in which an administrative decision-maker treats corroborating material. In rare cases a party’s evidence may have been so weakened that no weight is attached to other material because the case has been “poisoned beyond redemption”: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [49] (McHugh and Callinan JJ), cf [12]-[14] (Gleeson CJ), [93]-[95], (Kirby J). Outside of those exceptional cases, it is not open to a decision-maker to decide it is unnecessary “to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred”: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74, [27]. However, it is a matter for the decision-maker to approach a merits review by first assessing the applicant’s credit and, then, in light of that assessment, considering what weight should be given to corroborative evidence: Minister for Immigration and Citizenship vSZNSP (2010) 184 FCR 485, [30]-[33] (North and Lander JJ, Katzman J agreeing).
Those principles should be understood as providing a rational boundary for the conduct of judicial review where the ground of review is that corroborative material had not been properly considered. They accord with the settled principle that the reasons of a decision-maker are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272.
It was common ground that if a finding was made that the Tribunal had in fact failed to consider the corroborative letters and that they were of sufficient importance that the failure to do so amounted to a failure to perform its core statutory function of review, the content of the letters was such that consideration of them might, realistically, have resulted in a different decision and thereby, a conclusion that the applicant may have been deprived of the realistic possibility of a different outcome. Upon that view, if error was established it would be material and so constitute jurisdictional error: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379, [38]; MZAPC [2021] HCA 17, [2], [33].
Ground of review – corroborating evidence
The applicant’s sole ground for review reads:
The decision of the Second Respondent (the AAT) is affected by jurisdictional error in that the Tribunal failed to consider corroborating evidence in the form of letters about the applicant’s conversion to Christianity and thereby failed to exercise its jurisdiction to review the decision.
In substance, the applicant sought to demonstrate that the decision was tainted by jurisdictional error constituted by a failure to consider corroborating evidence.
The applicant submitted the Tribunal had failed to consider the five corroborating letters and had rejected the claim to fear harm on the basis of his Christianity because it had not been satisfied the conversion to, or the belief or practice of, Christianity was genuine.
The applicant further submitted that the materiality of the failure in consideration of the five corroborating letters could realistically have resulted in the Tribunal making a different decision.
The Minister submitted that the Tribunal considered each of the five corroborating letters and that, if it had not, jurisdictional error was not demonstrated for the following reasons. First, the Tribunal expressly noted that it had received a copy of the applicant’s record of baptism and “copies of letters of support from various Christian religious figures.” Secondly, in considering the applicant’s claimed conversion to Christianity, the Tribunal expressly referred to the letters of support that it had received. Thirdly, there was nothing in any of the letters which was of such importance to the applicant’s claims that the Tribunal’s failure to mention that specific matter might indicate the Tribunal had not in fact considered the letters. Fourthly, while accepting the applicant’s evidence he had been baptised, and participated in Bible studies and masses, the Tribunal gave clear reasons for its finding that it was not satisfied his conversion to Christianity was engaged in other than for the purposes of strengthening his claim.
Consideration
Upon the principles above, the Tribunal’s core statutory task was to form for itself, based upon the material before it, a conclusion whether or not, for the purposes of s 65 of the Act, it had been satisfied that the criteria for the visa, the subject of the application had been met.
The question on judicial review whether error was demonstrated is focused upon an alleged failure to evaluate in a considered way the applicant’s claim and evidence to have converted to Christianity and whether the applicant had satisfied it that such conversion was otherwise for the purpose of strengthening his claim. This requires consideration of the Reasons in order to evaluate the manner in which the Tribunal dealt with the claim and evidence.
The applicant bears the onus of persuading the court to infer that the Tribunal in fact failed to consider particular material that was before it. It is not in issue that the letters were before the Tribunal. If it draws the first inference, the applicant also bears the onus of persuading the court the subject material was of sufficient importance that the failure to consider it constituted a failure by the Tribunal to perform its core statutory task as described above.
A distinction is to be drawn between a failure to consider a claim and alleged failure to consider evidence which, if accepted, might have led to a different finding of fact. Here, the Tribunal did not fail to address the applicant’s claim to fear persecution on the basis of his conversion to Catholicism. Upon the Reasons and having regard to the materials in the court book addressed in the Background above, I am not persuaded that the court should infer the Tribunal in fact failed to consider the five corroborating letters relied upon.
The Tribunal dedicated pars [43] to [101] of its Reasons to its assessment of each of the claims. Overall the reasoning in relation to each of the claims was comprehensive. The Tribunal set out clearly the applicant’s claims to fear harm, including on the basis of conversion to Christianity and as a member of a minority group (Christians in Bangladesh), and how they had evolved throughout the application process: [23], [25], [26], [28].
The court should not too readily infer failure to consider a claim or evidence. It is also settled that the Tribunal is not required to refer to every piece of evidence or every contention advanced by or on behalf of an applicant. To assess the merits of the application, the Tribunal conducted a hearing for over six hours. Before the Tribunal was the decisional record of the delegate. In that decision each of the five letters had been separately set out.
The Tribunal recognised it had been supplied with a copy of the applicant’s baptismal certificate dated 8 July 2017: [24]. As observed by counsel in the course of argument, the Tribunal could not have made that finding without its awareness that the certificate was one of the several documents attached to the email transmitted in May 2018: [24], footnote 17, Doc ID 6170456. Further, the Tribunal made express reference to each of the five corroborating letters: [24], footnote 17. While Counsel for the applicant criticised the manner in which the Tribunal described those letters at [24], the use of footnotes was a reasonable way in which to structure the Reasons. It was common ground that each of the Doc ID references accurately captured the five corroborating letters. The description of the corroborating letters as being “letters of support from various Christian religious figures were also submitted” was entirely accurate. I agree that the Tribunal could not have referred to the authors of each of the five corroborating letters in those terms unless it had identified them. At the least, those matters support a conclusion the Tribunal was aware of those letters.
The Reasons unambiguously recognised the applicant grounded his conversion to Christianity including by participation in Bible classes and attendance at Mass: see, e.g., [23]. Critically, the Tribunal at [92], with obvious reference to the corroborating evidence stated that the applicant’s knowledge of Christian scripture was “corroborated by the supporting statement made by some Christian figures who have had contact with [the applicant] in the detention is centres in Australia, which indicate that he has attended and participated in Bible classes and mass and was baptised as a Catholic on 8 July 2017.”
While complaint was made of the absence of an express reference in the Reasons to the circumstance that Major Elkington of the Salvation Army was a person having three decades experience in pastoral ministry, it was not necessary for the Tribunal to set out every fact in providing its Reasons. The Reasons recognised the identity of the persons who had supplied corroborative evidence and that they were Christian religious figures of various denominations.
I am not prepared to infer that the Tribunal left those letters out of account. If I am wrong in that conclusion it remains to address the further question whether the information in those letters was of sufficient importance that a failure to have considered them amounted to error of a kind that should be characterised as jurisdictional.
Jurisdictional error is not established merely by failure to avert to an item of evidence which, if accepted, might have led to a different finding of fact. Rather, upon the principles considered above, the applicant must persuade the court to draw an inference that the Tribunal in fact failed to consider particular material and that it was of sufficient importance that the failure to do so constituted a failure to discharge the core function of review. It is convenient to consider the cogency of the material and the place it occupied in the application.
Set out in the Background above I have identified the stages at which each corroborative piece of evidence was introduced to the case. Relevantly, in each case, they were all introduced after the first tribunal had rejected each of the applicant’s other claims. Proper understanding of the cogency of each item of evidence is addressed below.
In the course of oral address, counsel for the applicant properly submitted that the information captured by two of the corroborating letters (Pastor Bone and the Student Minister Millard) was adequately reflected in the Reasons and, accordingly, the ground of review turned upon an evaluation of the Reasons and the matter in the remaining three letters.
Major Elkington’s letter dated 3 August 2017 stated he had known the applicant for six months. It stated he had seen the applicant each week in that period and described him in essentially positive terms. The letter recounted the applicant’s history including his conversion from Islam to Hinduism and then Christianity. Each of those matters was well understood by the Tribunal. Major Elkington’s letter proceeded to describe the sincerity of the applicant’s belief and conversion to Christianity consequent upon his renunciation of Islam. He confirmed that the applicant participated in Bible study and chapel service which Major Elkington undertook at monthly intervals. He described the discussions that were held between the applicant and himself respecting Bible study. Those matters were also addressed by the Tribunal at [23].
The majority of the balance of Major Elkington’s letter addressed issues of country information including in relation to the data breach. As to this, it was no part of the applicant’s submission that the decision was to be impugned for want of consideration of such information or the Tribunal’s consideration of such information: [97]-[106].
The letter from Father Peter Carrucan described his association with the applicant and their discussions at the detention centre including of the applicant’s background and family hardship. Father Peter described that there were “problems about the differences in religion within the family; mainly between Hindu and Moslem members.” Those were issues which the Tribunal plainly addressed: [4], [17]-[21], [23], [25], [53]-[86]. Apart from providing contextual relevance to the Tribunal’s assessment of credibility, it was no part of the applicant’s amended ground of review that a failure to consider the letter in so far as it related to conversion to Hinduism was a basis for finding jurisdictional error.
The second, third and remaining paragraph of Father Carracan’s letter described, insightfully, the approach he had taken at the detention centre in: refraining from encouraging detainees to convert to Christianity; advising them to defer such choices until living in the Australian community; asking Sister Colleen to listen to the applicant and consider the genuineness of his request; Sister Colleen inviting the applicant to attend Bible study groups that she ran (and the applicant’s participation in that group “for a number of months”). Father Carracan stated that despite difficulties in communication with the applicant, a decision was made to accept him for baptism and this took place. He stated that the applicant continued to attend Bible study group and attend mass on a weekly basis. Father Carracan, who recognised that, in most cases, it was hard to determine whether a request for baptism was genuine, stated the applicant had both attended study group and mass on a weekly basis and that his attention in each case was good, adding “I also noticed that he sets up for the Mass and clears things away at the end. I have always regarded that small attention to details as a proof of devotion. I am more than a little hopeful that his conversion will continue long after his stay ‘in detention’ is over.”
In an undated letter from Sister Colleen Leonard, a Sister of the Good Samaritan and spiritual director, she stated having known the applicant for two years, having met him during her weekly visits to the detention centre and recorded the applicant’s interest in baptism which she recorded as occurring on 8 July 2017. The Sister’s letter, addressed to the Minister, described the applicant’s interest in the Catholic mass and Bible classes and provided a testimonial in support of the applicant. Beyond the personal aspect, and duration, of Sister Colleen’s association with the applicant, the Reasons confirm the Tribunal had a proper understanding of the nature of the applicant’s claim including his attendance at and participation in the Catholic mass and Bible classes.
Father Carracan and Sister Colleen’s corroborative evidence spoke, not only to their belief of the genuineness of the applicant’s faith, but of their aspiration that it would continue.
Having regard to the matters addressed by the Tribunal in its consideration of the claim, I agree in the submission that the material in the corroborative letters was not of such central importance to the applicant’s claims that the Tribunal’s failure to mention them specifically indicates that it had not in fact considered them: cf MZYTS [2013] 230 FCR 431, [62]. In many respects the Reasons disclose an acceptance of the applicant’s evidence in relation to the way in which he had begun to explore Christianity including in the attendance of Bible classes and at Mass. While the corroborating letters would have been of particular relevance had the Tribunal otherwise disbelieved the applicant’s evidence in relation to those issues, it did not reject his evidence as to having attended Bible study and mass and his knowledge of Scripture.
Upon being satisfied of the genuineness of the applicant’s religious conversion from Hinduism to Catholicism, the issue for the Tribunal was whether it had been satisfied by the applicant that he had engaged in this conversion otherwise than for the purposes of strengthening his claim to be a refugee.
The Reasons addressed the Claimed conversion to Christianity at [87]-[96]. Contextually, the Tribunal observed an inconsistency between the applicant’s May 2018 statement that his family were strict Muslims and his claim in the course of the hearing that he did not go to mosque and was not a practising Muslim before he had met the woman he claimed to have married. It pointed to the apparent inconsistency between the applicant’s claim to have been the member of a political party (which had been established on a platform of nationalism and Islamic identity) and that he had not asked his wife to convert to Islam, particularly where he claimed his elder brother had been appointed as Imam of the local mosque and his father and brother were supporters of JI. After considering certain country information, the Tribunal found the applicant’s statements to have never practised Islam and not knowing how to offer prayers to be inconsistent with claims he did not wish fellow boat passengers or room-mates in detention to know he had converted from Islam: [87].
As to conversion to Hinduism, the Tribunal explored this issue with the applicant: [88].
The Tribunal then explained to the applicant the implications of s 5J(6) of the Act, stating that it was required to disregard conduct in Australia unless satisfied by him that it had been done for a reason other than to strengthen his claim to be a refugee: [89]. To this the applicant responded that he had converted to Christianity with his whole heart and had done so notwithstanding that others had come to him with messages that were against Jesus.
The Tribunal recorded the applicant’s evidence that he had come to be interested in Christianity when other detainees had been visited by a priest who had told them Bible stories.
Matters raised by the applicant in relation to his knowledge of Scripture were noted: [89]-[91]. It found the applicant had a reasonable knowledge of some Christian scripture and made a finding that it was corroborated by some of the supporting statements he had provided:
The Tribunal found that [the applicant] has a reasonable knowledge of some Christian scripture. The Communal finds this is corroborated by the supporting statements made by some Christian figures who have had contact with [him] in the detention centres in Australia, which indicate that he has attended and participated in Bible classes and mass and was baptised as a Catholic on 8 July 2017: [92].
It is clear from the detail of the Reasons at [89]-[92] that the Tribunal was concerned to examine the applicant’s knowledge of, and thereby the genuineness of his conversion to, Christianity. Relatedly, the Tribunal understood the applicant’s evidence concerning the development of his interest in Christianity during detention and his participation in Bible classes and mass: [23]. It understood that submissions had been made to it progressively in relation to the applicant’s conversion to Christianity.
After addressing the applicant’s evidence as to the fear he held if returned to Bangladesh as a Christian convert, the Tribunal accepted the applicant had been baptised and participated in Christian services and activities in Australia but was not satisfied this had been done otherwise than for the purposes of strength in his claim to be a refugee. Relevantly, it stated at [94]-[95]:
Having carefully considered BDT20 circumstances and the totality of his evidence, while the Tribunal accepts that BDT20 was baptised on 8 July 2017 and has been participating in Christian services and activities in Australia, the Tribunal is not satisfied that BDT20 has done this otherwise than for the purposes of strengthening his claim to be a refugee. In reaching this conclusion the Tribunal has given significant weight to its findings on his other claims. Essentially the Tribunal has found that BDT20 has concocted all his other key claims. The Tribunal therefore finds he is not a witness of truth. In light of this, the Tribunal is not prepared to give BDT20 the benefit of the doubt in relation to his claim to be a genuine convert to Christianity. The Tribunal also considers that BDT20 had a strong incentive to engage in Christian activities following the decision of the first delegate on 4 January 2017 refusing his Protection visa application (including because she did not accept his core claims). The Tribunal finds that the Christian services and activities BDT20has been participating in since 2017 are readily available in the immigration detention environment where BDT20 has been residing since he arrived in Australia in November 2012, and therefore it is easy for BDT20 to access and engage in these services without being committed to them. Accordingly, the Tribunal has disregarded this conduct (in accordance with s.5J(6) of the Act).
Noting that s.5J(6) of the Act only relates to the refugee criterion, the Tribunal has also considered this claim under the complementary protection criterion. As noted above, the Tribunal is not satisfied that BDT20 was baptised as a Catholic in July 2017 and has been attending church services and participating in Bible studies and other Christian activities otherwise than for the purpose of strengthening his claim to be a refugee and therefore for protection generally. Having reached this finding, the Tribunal does not accept that he would seek to practise as a Catholic or any other branch of Christian faith if he was returned to Bangladesh, but considers that he would revert to identifying as a Muslim. Consequently, the Tribunal does not consider that BDT20 would face a real risk of being considered an apostate, or would be ostracised or targeted for harm by Islamic extremists, members of his family or members of the broader Muslim community should he be returned to Bangladesh. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of BDT20 being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm on this basis.
Upon that basis, the Tribunal found it was required to disregard this claim: [94]-[96].
I do not accept the characterisation of the reasoning at [94] that the Tribunal had not been satisfied by the applicant that he had engaged in his conversion to Christianity otherwise than for the purposes of strengthening his claim to be a refugee as “damning.”
The statements made in [94] had an intelligible basis. In the Background above, the progressive evolution of the applicant’s claims has been set out including that the supplementary statement was delivered to address a number of errors in his earlier documentation and statement. On several occasions the applicant had been given, and taken, opportunities to respond to adverse information. Described in the Background above is the way in which the applicant’s claims and evidence evolved, the submissions and evidence supplied and the decisional record of the delegate. The materials before the Tribunal supplied a rational basis on which it could properly evaluate it was not satisfied by the applicant his conduct in Australia (his conversion to Christianity), had been otherwise for the purposes of strengthening his claim to be a refugee. Equally, upon those materials the Tribunal was entitled to be sceptical of the applicant’s motivation for introducing the claim once his original claims had been rejected.
The assessment made by the Tribunal of the issue posed by s 5J(6) arose in the context that all of the applicant’s original claims had been rejected including by reason of the adverse credibility finding it made against him and by the use of bogus documents. The Tribunal did not accept the applicant’s claimed involvement with a political party: [45]-[52]; his claimed interfaith/marriage to a Hindu woman or his conversion to Hinduism and associated claims of conflict with the woman’s brother: [53]-[69]; the claim to allegations that the applicant had been accused, tried and convicted of arson for which he had been sentenced to a term of 10 years imprisonment: [70]-[81]; his claim to have hidden and experienced violence: [82]-[86]. Throughout these reasons the Tribunal identified aspects of the applicant’s evidence which it found to be vague, lacking in detail and improbable. The Tribunal took these matters into account in its evaluation of the issues raised by s 5J(6): [94]-[95].
It was not irrational or illogical for the Tribunal to view the applicant as a person who had an incentive to advance the further claim to fear persecution on the ground of religion in a context where an earlier decision maker had already rejected all of his other claims. Where the Tribunal had also made adverse credibility findings in relation to the applicant’s original claims at [43]-[101], it was open to the Tribunal to conclude it had not been satisfied by the applicant of the matters in s 5J(6) and was, for that reason, required to disregard his conversion to Christianity.
It was properly accepted that the Tribunal had addressed the issue of credibility and rejected each of the applicant’s other claims on the basis that it found his evidence generally to be vague, lacking in details, unsupported by independent corroborating evidence, inconsistent and unconvincing. The Tribunal stated that it “did not find the key elements of his claims to be credible and found he had concocted these claims to support his case for protection.” Some weight was attached to inconsistencies: [41]-[42]. The applicant criticised the content of [41] as having been framed in terms which did not accurately reflect the evidence relating to the applicant’s claim to a well-founded fear of persecution on the ground of religion. The Tribunal addressed the issue of credibility in the introductory parts of its section on Findings and reasons at [36]-[42]. However, I do not accept the criticism of [41] to be well made. It was entirely appropriate for the Tribunal to provide, at some point, it’s overview of the applicant’s credibility. In doing so, at [41], the Tribunal explicitly stated the views as to the vagueness, lack of detail, lack of independent corroborating evidence, and inconsistent and unconvincing nature of the applicant’s evidence were held “For the reasons set out below” and further, that those views were to be understood as respecting its “general” assessment of the evidence. The Tribunal proceeded to state that it did not find “key elements of his claims to be credible and finds that he has concocted these claims to support his case for protection.” It would be a misconstruction of the Reasons, read as a whole, to understand the decision-maker as viewing every aspect of the applicant’s claims and evidence, and in particular those in [87]-[96] as attracting each of the general criticisms set out at [41]. I accept the applicant’s submission that the general description of the applicant’s evidence as being vague, lacking in detail or wanting for independent corroborative evidence was inapt as concerned the five corroborating letters. However, to approach the matter in that way is to ignore those other aspects of the Reasons which dealt with the topic of Christianity. The Tribunal recognised the claims of conversion to Hinduism and subsequently to Christianity had been raised and dealt with by the delegate (whose reasons enumerated each of the five corroborating letters): [4].
Properly understood, the Reasons confirm that the Tribunal rejected the credibility of all of the applicant’s other claims to protection but accepted the applicant had converted to Christianity and that this was corroborated by his other evidence. What it was not satisfied of were the matters in sub-s 5J(6) of the Act.
Nonetheless, I accept there was some force in the complaint that [94] was framed in terms which, on one view, may be understood as treating the applicant’s conversion to Christianity as having only begun in early 2017. However, the reasoning at [94] can be read as accepting the applicant as continuing to practice his Christianity in 2017. Contextually, the reasoning at [23]-[28], including by reference to the applicant’s evidence and various submissions referred to leave it readily open to conclude the Tribunal understood the applicant’s conversion from Hinduism to Christianity had begun earlier in mid-2016. The applicant claimed in the course of his protection visa interview held on 11 May 2016 that, following his marriage in August 2006 at a Hindu Temple, he renounced Islam and now continued to practice Hinduism. It may be noted that this was the stated position in mid-2016. But I do not accept that the genuineness of the applicant’s faith or his conversion to Christianity was not a matter with which the Tribunal had not engaged or not given active intellectual consideration.
The determination whether a decision-maker has engaged in an active intellectual way with an applicant’s claims, evidence and corroborating evidence is inherently fact intensive. I agree in the submission that where, as here, the Tribunal’s reasoning reflects recognition of the facts referred to in the corroborative documents relied upon, this is a powerful reason undermining an inference that there had been a failure to consider the material.
To observe that the Reasons did not rehearse the text of each of the corroborative letters and, on that basis, to contend the decision-maker had not given those letters genuine consideration was a somewhat circular or self-fulfilling submission. More importantly, it distracted attention from the proper focus of enquiry; namely, whether the claim had been recognised and addressed; whether the corroborative evidence was in fact before the Tribunal; whether the Tribunal in fact failed to consider the particular evidence and, if it had, whether the evidence was of sufficient importance that the failure to do so constituted jurisdictional error.
It was also common ground that while consideration of other authorities may be instructive as to the applicable legal principles, it was inappropriate to apply rigidly the results in other cases as though dictating the outcome of the present application. Without referring in detail to each of the cases discussed in the course of oral address or the parties’ submissions, this is not a case in which the decision-maker made no reference to the corroborative documents and I am not satisfied this court should infer the Tribunal failed, or simply forgot, to consider the five letters relied upon (BXK15; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 755, [17]). In contrast with other decisions, in this case each of the corroborative documents was specifically identified (as they had been in the delegate’s decisional record). Nor is this a case in which it was appropriate to infer that, had the evidence been considered at all, it would have been referred to even for the purpose of rejecting all or attaching little or no weight to it (MZYTS; SZRKT). For the reasons above, the Tribunal accepted the applicant’s evidence as to the path he followed in converting to Christianity: [23], [89]-[95]. Nor is it a case which admits of the conclusion that the decision-maker had dismissed out of hand all of the corroborating evidence or had done so on the basis of the rejection of the applicant’s credibility. For that reason, the case is distinguishable from SZRKT where the decision-maker had disbelieved the applicant’s evidence to have undertaken a course of study in Persian and further, had failed to consider corroborative evidence constituted by his academic transcript. Here, acceptance of the applicant’s evidence, as to his second religious conversion, rendered it less important to have otherwise referred to the corroborative letters on these issues. There is nothing in the reasoning to suggest that the Tribunal had not mentioned or had given no weight to the evidence of independent witnesses whose evidence appeared to be credible (cf Ex parte Applicant S20/2002, [94]-[95]). Relatedly, the present case is not one in which the applicant’s evidence had been so weakened that the Tribunal treated what had been proffered as corroborative evidence as being of no weight because “the well had been poisoned beyond redemption” (cf Ex parte Applicant S20/2002, [49]).
Read fairly and as a whole, the Tribunal explained why all of the other claims had been rejected, including on the grounds of credibility: [41], [95]. As concerned the new claim, the Tribunal identified and accepted the applicant’s conversion to Christianity: [92], [94]. What it found was that the applicant had not satisfied it that the conduct had been done for a reason other than to strengthen his claim to be a refugee: [89], [94].
I am satisfied the Tribunal did engage in an active intellectual way with the applicant’s claim to be a refugee arising from a well-founded fear of persecution by reason of his conversion to Christianity and, consequently, as a member of a particular social group. It was open, in all of the circumstances, for the Tribunal to conclude it had not been satisfied by the applicant that his conduct in Australia culminating in his baptism and conversion to Christianity had been engaged in otherwise than for the purpose of strengthening his claims to be a refugee.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 2 August 2021
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