BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 82
•13 February 2023
FEDERAL COURT OF AUSTRALIA
BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 82
Appeal from: BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1747 File number: VID 495 of 2021 Judgment of: SNADEN J Date of judgment: 13 February 2023 Catchwords: MIGRATION – appeal from judgment of the (then) Federal Circuit Court of Australia – application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) – where Tribunal affirmed decision of delegate of the Minister to refuse to grant protection visa – where appellant converted to Christianity in immigration detention – genuineness of conversion attested to by religious officials – Tribunal not satisfied that conversion was genuine – whether Tribunal committed jurisdictional error by failing to consider what officials had attested to – whether primary judge erred in failing to find that the Tribunal failed to consider what was advanced before it – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65 Cases cited: Ali v Minister for Home Affairs (2020) 278 FCR 627
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 536 FCR 593
BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1747
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Plaintiff M1/2021 v Minister for Home Affairs (2002) 400 ALR 417
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 38 Date of hearing: 2 June 2022 Counsel for the Appellant: Ms E Latif (pro bono) Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 495 of 2021 BETWEEN: BDT20
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
13 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
BACKGROUND
The appellant is a citizen of Bangladesh. He arrived in Australia in 2012 and, on 8 February 2016, applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (the “Act”). That application (the “Visa Application”) was for a class of visa known as a safe haven enterprise (subclass 790) visa (or “SHEV”). The Visa Application canvassed various bases upon which protection was said to be owed to the appellant, to which attention will shortly return.
The appellant was raised as an adherent to the Islamic faith. Approximately six years before he came to Australia, he converted to Hinduism and married a Hindu woman. Central to his submission before this court is that, during his time in immigration detention in Australia, the appellant has converted to Christianity. By reason of that conversion, he claims that he cannot safely return to Bangladesh.
On 4 January 2017, a delegate of the first respondent (the “Minister”) refused the appellant’s Visa Application (“Delegate’s First Decision”). On 20 February 2018, that decision was set aside by consent in what was then the Federal Circuit Court of Australia (“FCCA”). It was remitted to the Minister for further determination.
On 24 July 2018, a delegate of the first respondent again refused to grant the Visa Application (“Delegate’s Second Decision”). The delegate determined that the appellant did not satisfy the requisite criteria under s 36(2)(a) and (aa) of the Act.
On 16 August 2018, the appellant made an application to the Administrative Appeals Tribunal (“Tribunal”) for review of the Delegate’s Second Decision. By a decision dated 21 February 2020, the Tribunal affirmed the Delegate’s Second Decision (“Tribunal’s Decision”).
By an amended application dated 14 July 2021, the appellant sought judicial review of the Tribunal’s Decision in the FCCA. That application was dismissed on 2 August 2021: BDT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1747 (Judge Kelly) (hereafter, the “FCCA Judgment”).
By a notice of appeal dated 25 August 2021, the appellant now appeals from the FCCA Judgment. To that end, he advances a single ground: namely, that the learned primary judge erred by concluding that the Tribunal did not fail to consider matters that were advanced in support of the Visa Application. That ground should fail and, for the reasons that follow, the appeal will be dismissed with the usual order as to costs.
STATUTORY FRAMEWORK
Section 65 of the Act obliges the Minister to grant a visa if certain criteria are met. In the case of SHEVs, those criteria are set out in s 36, which relevantly states:
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
…
For the purposes of the Act, a person is a refugee if (relevantly), he or she “…is outside the country of his or her 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”: the Act, s 5H. Section 5J of the Act identifies when a person possesses a “well-founded fear of persecution”. Relevantly for present purposes, it provides (and, at material times, provided):
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(6)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.
THE APPELLANT’S CLAIMS FOR PROTECTION
The appellant’s Visa Application focused (at least for present purposes) upon his time in immigration detention and his stated conversion to Christianity. That conversion was said to have begun whilst the appellant was detained in Darwin in 2016. The appellant maintains that he has a well-founded fear of persecution based upon his new religion.
Before the Minister’s delegate, the appellant relied upon an un-dated statutory declaration, within which he made the following claims under the heading “My conversion to Christianity” (errors original):
In 2016 when I was detained at Wickham Point Detention Centre in Darwin, Catholic fathers came to the centre and they spoke about the message of God. It would make me feel good. In Hinduism there are many gods and every month there is a religious celebration. I did not like it. Listening to the Bible in Darwin changed my belief, it touched my heart and my feelings.
I started talking with them and exploring the Christian faith. The Father would read from the Gospel about Matthew, Mark, Peter or John for example. There were bibles written in Bengali and there were other Bengali detainees that would read the bible with me. I also attended Catholic bible study group once a week with a religious officer. I participated in these groups for about 2 months before I was transferred to Melbourne Immigration Transit Accommodation (MITA).
While I was detained in MITA I shared a room with a detainee who is from Cameroon and a detainee from Fiji. They would speak to me about Jesus and the bible. The detainee from Cameroon would lead the religious classes at the centre and he was a very learned person. He motivated me to learn about Christianity. Every night he would read the bible to me and talk to me about why Jesus came to this world. I asked the religious officer at MITA who was running bible study classes if I could have my own bible in Bengali and he provided me with one.
While at MITA I have also met and spoken with Father Peter who visits from St Dominic's Catholic Church and Sister Colleen who is a nun and who runs a bible study group which I attend. I go to mass once a week on Thursday at MITA and I attend bible study group at least twice a week. The classes are run by a number of different churches and organisations. I describe myself as Catholic. My roommate from Cameroon was Catholic and I liked the way that he talked about the religion and the bible. He inspired me to be Catholic. I also find Catholicism easy to understand. However, I want to learn more, I want to learn everything about Christianity and that is why I attend all the different Christian bible study classes and groups that are available at MITA. There is no end to the knowledge, for as long as I am alive I will continue to learn about Christianity. There is one bible and the message is one but the different churches have different principles.
I have learnt that Jesus is the son of God. There is the Holy Trinity who is the Father, the Son and the Holy Spirit. If we commit a sin, the Holy Spirit will come and take away the sin, the Holy Spirit cannot be seen, it is in our heart.
Jesus is our Lord. He came to this world to help people who are vulnerable, in pain, are hungry or who are suffering from disease. Jesus is a great man, he has a lot of love and a lot of forgiveness and he has such power, when a diseased man came to him he would touch him and the diseased man would be healed. Jesus touched the eyes of those that are blind and they had vision again. Jesus is the king, he is my king, and he is everybody's king. Jesus lives on in us, in our soul.
Christianity teaches love and to give love. It teaches us to make a family and to give them love. Christianity teaches about forgiveness, if someone strikes you do not strike them back, forgive and love them instead.
In July 2017 I was baptised at the St Dominic's Catholic Church Broadmeadows, Victoria. When I was baptised I was surrounded by Father Peter, Sister Colleen and Sister Bridget. I wanted to be baptised because I had learnt a lot about Jesus and I felt like I was ready. Baptism is a way to be clean and to make pure, to get rid of all the evil. To prepare for Baptism I went to classes with Sister Colleen and she would explain what would happen at the ceremony.
Since my baptism I have continued to attend bible study classes when they are available and go to mass at MITA at least once a week. I also pray on my own in my room. If I was returned to Bangladesh I would continue to practise my religion, I would attend church and try and find other Christians to pray with and talk with. I have the Holy Spirit inside of me and I will never let it leave me. I would like to encourage other people to follow Christianity and to have their hearts touched by Christianity like mine was.
The appellant described his fear of persecution in Bangladesh as follows:
If I am forced to return to Bangladesh I am afraid that I will be beaten, imprisoned or killed by the Government in Bangladesh. Extremist Islamic groups, the Muslim community or my family because I have converted to Christianity. In Bangladesh the majority of people are Muslim. Christians are a minority. My family are strict Muslims they will not accept my conversion, they will want to harm me. I would not be able to practise my religion safely. There is no law or justice in Bangladesh and the authorities will not protect me because I have converted.
The appellant also relied upon other material that, he said, went to the genuineness of his conversion to Christianity. Relevantly for present purposes, that material comprised of a record of his baptism, and the following letters, namely:
(a)correspondence dated 2 October 2017 from Father Peter Carrucan of the Catholic Archdiocese of Melbourne (the “Carrucan Letter”);
(b)correspondence dated 3 August 2017 from Major Colin Elkington of the Salvation Army (the “Elkington Letter”);
(c)correspondence dated 4 August 2017 from Pastor David Bone of the Innerlife Church (the “Bone Letter”);
(d)correspondence dated 3 April 2018 from Mr Joshua Millard (the “Millard Letter”); and
(e)un-dated correspondence from Sister Colleen Leonard of Good Samaritan Sisters (the “Leonard Letter”),
(collectively, the “Letters of Support”).
The Carrucan Letter described the appellant’s faith and Father Carrucan’s engagement with him as follows:
I have refrained from encouraging anyone in the Centre to become a catholic, advising them to wait until they were living in the community, where their choice would be a freer kind of one. Sometimes, the new arrival thinks it may make it easier for them to be accepted into Australia if they convert to Christianity. I discount that theory. In [the appellant’s] case, he was insistent that he wanted to convert. I asked [Sister] Colleen to listen to him and see if it was a genuine request. Sister Colleen invited him to join a Bible Study group she was running in MITA. He was in the group for a number of months. It wasn’t easy to communicate because of the language. In the end, we decided, Sister and myself, to accept [the appellant] for baptism. One Saturday morning, he was baptized at St Dominic’s Parish Church, Broadmeadows. He continues in the Bible study group and attends the weekly mass at MITA, and when permission is granted, goes to Church on a Saturday, at Broadmeadows.
Most times it is hard to determine if the request for baptism is genuine. We ask of those who request to attend the study group weekly and to come to mass each week. [The appellant] has done both. We believe there is prayer in his life. However, his attention at the Mass and study group is good. I also noticed that he sets up for the Mass and clears thing away things away at the end. I have always regarded that small attention to detail as a proof of devotion.
I am more than a little hopeful that his conversion will continue long after his stay at MITA is over.
The Elkington letter contained a similar appraisal, the crux of which was as follows:
[The appellant] participates in a Bible study that I conduct when I visit and also attends a monthly Christian chapel service, which I conduct at MITA. He is always eager to receive prayer from me. As a new Christian and a convert from Islam, he has questions about Christianity and the Bible which I attempted to answer. [The appellant] reads his Bible and asks me questions about it. [The appellant] is keen to grow in his understanding of Christianity. Many Christian visitors come to MITA and teach [the appellant] from the Bible. I have no doubts about the sincerity of [the appellant’s] conversion to Christianity and consequent renunciation of Islam.
The Bone Letter contained less detail, and instead spoke to the appellant’s participation in and attendance at Bible study sessions and prayers at the Innerlife Church.
In his letter, Mr Millard, student Minister at St Jude’s Anglican Church (Parkville), described the appellant’s interest in and attendance in immigration detention at bible study sessions.
The Leonard Letter also referred to the appellant’s attendance at bible study classes during his time in immigration detention and his “keen interest” in being well prepared for his baptism.
THE TRIBUNAL’S DECISION
The appellant complains that the Tribunal’s Decision was made without proper consideration of the Letters of Support (above, [13]-[16]). He submits that those letters were not merely bare assertions, but that they contained expressions of confidence that experienced people considered his conversion to be genuine.
It is convenient at this juncture to recount what the Tribunal said about the appellant’s conversion and its genuineness.
The Tribunal acknowledged that the appellant had claimed to have converted to Christianity. It recited the representations made by the appellant before the delegate, including that:
(1)he had converted to Christianity;
(2)he attended biblical study groups;
(3)he had been baptised; and
(4)he feared, based on his conversion to Christianity, that he would be harmed if he returned to Bangladesh.
The Tribunal then made the following reference to the documents upon which the appellant relied:
A copy of [the appellant’s] Record of Baptism, dated 8 July 2017, and copies of letters of support from various Christian religious figures were also submitted.
Referenced in the footnote that attended that observation were the Letters of Support.
The Tribunal then turned to the genuineness of the appellant’s initial conversion from Islam to Hinduism:
In relation to his claim to have converted to Hinduism, [the appellant] said he was not converted from his heart but just said he was converted so he could get [the appellant’s wife] and did not accept that religion. He added that he is a Christian now which he believes in from his heart. The Tribunal asked [the appellant] if he discussed his conversion to Christianity with [the appellant’s wife]. He indicated he did not and did not feel the need to as it is his choice and he would rather ask her to join with him as a Christian. The Tribunal queried [the appellant] that he indicated he was prepared to convert to Hinduism to marry [the appellant’s wife] because of his love for her, rather than ask her to convert to Islam. He replied that he has now found a beautiful religion and would rather convince her to convert to his religion.
The Tribunal also referred to inquiries that were made of the appellant as to his understanding and knowledge of Christianity. The appellant gave examples and recounted biblical stories. The Tribunal found that:
…[the appellant] has a reasonable knowledge of some Christian scripture. The Tribunal finds this is corroborated by the supporting statements made by some Christian figures who have had contact with [the appellant] in the detention centres in Australia, which indicate that that he has attended and participated in Bible classes and mass and was baptised as a Catholic on 8 July 2017.
However, the Tribunal did not accept that the appellant’s conversion to Christianity was genuine. Reasons were given to underscore that conclusion, which included references to the appellant’s baptism and his engagement with Christianity-based activities. The following observations assume present significance:
Having carefully considered [the appellant’s] circumstances and the totality of his evidence, while the Tribunal accepts that [the appellant] was baptised on 8 July 2017 and has been participating in Christian services and activities in Australia, the Tribunal is not satisfied that [the appellant] 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 [the appellant] 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 [the appellant] the benefit of the doubt in relation to his claim to be a genuine convert to Christianity. The Tribunal also considers that [the appellant] 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 [the appellant] has been participating in since 2017 are readily available in the immigration detention environment where [the appellant] has been residing since he arrived in Australia in November 2012, and therefore it is easy for [the appellant] 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).
THE FCCA JUDGMENT AND THIS APPEAL
The appellant here advances a single ground of appeal:
1. The primary judge erred in failing to find that:
The decision of the [s]econd [r]espondent (the AAT) is affected by jurisdictional error in that the Tribunal failed to consider corroborating evidence in the form of letters about the [appellant’s] conversion to Christianity and thereby failed to exercise its jurisdiction to review the decision.
That sole ground mirrors the contention that was unsuccessfully pressed in the court below. The appellant charges the Tribunal with having failed to consider material (specifically, the Carrucan Letter, Elkington Letter and the Leonard Letter) that he put before it, which corroborated an important integer of his overall claim for protection. As expressed in the appellant’s submissions:
The Tribunal’s reasons for decision reveal of no active engagement with, or genuine and realistic consideration of, the full relevance of the [c]orroborating [e]vidence in this connection and show jurisdictional error accordingly.
(references omitted)
The FCCA concluded that no such failure transpired. It is not necessary that I should here explore the reasons underpinning that conclusion. If it be wrong—that is to say, if the Tribunal’s Decision was, in truth, a product of jurisdictional error, then the present appeal should succeed. If not, it should fail. Either way, this court’s focus should fix upon whether or not the Tribunal properly discharged the function that was entrusted to it.
I turn, then, to the central question that presents on the appeal: did the Tribunal fail to consider the Letters of Support and their significance to his central claim that he is a refugee?
ALLEGED FAILURE TO CONSIDER
It was not (and could hardly be) controversial that, before deciding the Visa Application, the Tribunal was obliged to consider matters of significance that the appellant advanced as to why his Visa Application should succeed (including, for present purposes, the Letters of Support). Until recently, doing so required that the contentions that were advanced be subjected to an “active intellectual process”: see, for example, Ali v Minister for Home Affairs (2020) 278 FCR 627, 643 [45] (Collier, Reeves and Derrington JJ). Although not rejected, that nomenclature appears not to have attracted itself to the High Court: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 426 [26] (hereafter, “Plaintiff M1”; Kiefel CJ, Keane, Gordon and Steward JJ; with whom Gageler J agreed in the result). Instead, it is said that decision makers must:
…read, identify, understand and evaluate [such] representations [as are advanced]. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement—the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
(Plaintiff M1, [24]-[26] (Kiefel CJ, Keane, Gordon and Steward JJ), references omitted).
Whether a decision maker had regard to a particular consideration in the course of making a particular decision is a question of fact. It is usually (if not inevitably) resolved as a matter of inference, typically on the strength of the reasons that are given in support of the decision in question. An inference that a decision maker has failed to consider an issue is one that should not too readily be drawn in circumstances where the reasons for a given decision are comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ). The court requires clear evidence before such an inference might be drawn and it is the applicant who bears that difficult evidential onus: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 448 [53] (Kenny, Griffiths and Mortimer JJ).
It is not in dispute that the Tribunal was, in the present case, at least conscious of the existence and central thrust of the Letters of Support, and that they were consistent with the appellant’s having genuinely converted to Christianity (see above, [21]-[24]). The appellant maintains that that consciousness does not elevate to a point of genuine consideration that is sufficient to constitute the Tribunal’s Decision as one that was authorised by the Act.
Instead, the appellant submits that the Tribunal was moved “by exclusive reference” to the adverse credibility finding that was made against him. It is said that the text of the Tribunal’s Decision reflects that its inquiry into the issue of conversion was “superficial”; and that it did not properly distinguish the fact of conversion from the question of genuineness.
By way of response, the Minister submits that:
…there was nothing in any of the letters that was of such central importance to the appellant’s claims that the Tribunal’s failure to mention that specific matter might indicate that the Tribunal had not in fact considered the letters…What the letters did not address in any real detail was the issue that was of concern to the Tribunal — namely, whether the appellant’s conversion to Christianity was for the purpose of strengthening his claims.
I do not accept that the Tribunal failed properly to consider the nature, content or existence of the Letters of Support. On the contrary, the Tribunal was alive to them and to what they said of the appellant’s conversion to Christianity. It referred explicitly to them and acknowledged that they were consistent with the narrative upon which the appellant pressed his Visa Application. It could not have done so without identifying, reading and understanding them and I am satisfied that it did each.
I am also satisfied that it relevantly evaluated their content. Contrary to what the appellant contended, the Tribunal was not obliged to offer any expression as to the weight that it attached to the Letters of Support; nor, for that matter, to say anything about them at all. Its obligation was simply to take account of them in the course of making its decision; to bring them to bear upon its assessment as to whether the appellant possessed a well-founded fear of persecution such that his Visa Application should succeed. Given that it referred to them and correctly acknowledged the thrust of what they said, I am not satisfied that the Tribunal could be said to have failed to discharge that obligation.
With respect, the primary judge’s conclusion to that same effect was correct.
DISPOSITION
The Tribunal’s Decision was not the product of jurisdictional error as the appellant alleged. There was no error on the part of the court below and the appeal should (and will) be dismissed accordingly, with the usual order as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 13 February 2023
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