Bis17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 730
Federal Circuit and Family Court of Australia (division 2)
BIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 730
File number(s): SYG 964 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 2 September 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a protection visa – whether in so affirming the decision the Tribunal made an unreasonable finding – whether in any event such finding was material – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(6), 91R(3), 476 Cases cited: Nathanson v Minister for Home Affairs [2022] HCA 26
Republic of Nauru v WET040 (No 2) [2018] HCA 60
Division: General Number of paragraphs: 18 Date of last submission/s: 23 September 2021 Date of hearing: 22 September 2021 Place: Sydney Counsel for the Applicants: Mr O Jones, by video Solicitor for the Applicants: Immi House Legal Counsel for the First Respondent: Mr T Reilly, by video Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 964 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIS17
First Applicant
BIT17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
2 september 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the first respondent’s costs set in the amount of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
This application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is directed to a particular part of the reasons on which the second respondent (Tribunal) relied for affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa). The applicants submit the Tribunal acted unreasonably in a number of ways.
backgrounD and claims
The first applicant (applicant) is a citizen of India. He arrived in Australia in 2008 on a Student visa as a dependent of his former wife.
In 2014 the applicant applied for a Protection visa. The second applicant was added as a party to the application for a Protection visa. The second applicant and the applicant had a child in Australia in 2015.
In his application for a Protection visa the applicant claimed he is afraid to return to India because he converted to Christianity from his Hindu faith. The applicant fears for his life from Hindu religious fundamentalists who will kill the applicant.[1] The applicants did not respond to an invitation made on 31 March 2015 that they attend an interview with a delegate of the Minister.[2] On 21 April 2015 the delegate refused to grant the applicants a Protection visa.
[1] CB21
[2] CB84
By email sent on 2 March 2017,[3] the applicant provided to the Tribunal a statement in support of his claims for protection.[4] The applicant made the following claims:
[3] CB151
[4] CB153
(a)The applicant was born into a very traditional Sikh family.
(b)The applicant came to Australia in 2008 with his former wife as a dependent on her student visa. Initially everything was fine. The applicant was busy with his work and his former wife focused on her studies.
(c)Occasionally the applicant would chat with Christian missionaries in public spaces. On one occasion, the applicant invited the Christian missionaries to his home. The Christian missionaries made the applicant aware of Christianity. The applicant’s interest grew and he started reading about Christianity online. The applicant began to go to Church once a month in 2009.
(d)The applicant’s sister informed the applicant’s parents in India of his growing interest in Christianity. The applicant’s family were very upset, and they tried to convince the applicant not to go to Church but instead to follow the Sikh religion. The applicant’s former wife also informed her parents about the applicant’s interest in Christianity.
(e)The applicant’s and his former wife’s families started threatening the applicant over the telephone that when he returns to India his life will not be spared. Given the applicant’s and his former wife’s families live in a village, the whole community will soon know of the applicant’s interest in Christianity. That will affect the lives of the applicant’s brother and sister because the village will not accept the applicant and his family because of the applicant’s conversion.
(f)The applicant’s parents cut off contact with the applicant; the applicant’s sister wanted him to leave her house; and the applicant’s former wife left him. The applicant decided to go “very far off from everyone”, and in 2009 he went to Cairns.
(g)In 2010 the applicant’s former wife divorced the applicant. The applicant found someone who allowed him to share a room, and provide the applicant with food. The applicant invited Christian missionaries to visit. The applicant frequently visited Church for Sunday prayers.
(h)The applicant returned to Sydney in 2011. A family provided the applicant with shelter where he met the second applicant. The second applicant respected the applicant’s religious preferences; and she started to accompany the applicant to Church. The applicant, second applicant, and their daughter, who was born in 2015, would visit the Church and spend two to three hours there.
(i)The applicant, second applicant, and their daughter were getting baptised in March 2017 by the Church of Jesus Christ of Latter-day Saints.
trIbunal’s reasons
The Tribunal did not accept the applicants are truthful witnesses; and found they manufactured their claims to be committed to the Church of Jesus Christ of Latter-day Saints, and that their involvement in that Church was recent and solely for the purposes of establishing claims for protection in Australia.[5] The Tribunal relied on the following matters:
(a)The applicant’s knowledge of the religion which he claims to have been involved with since 2009 was at best limited; and it was less than it was reasonable to expect, given the applicant claimed that he was able to develop a level of interest in the Mormon religion such that it resulted in the breakdown of his first marriage, ostracism from his and his former wife’s families, and his exposure to potential harm if the applicant were to return to India.[6]
(b)The delay, which the Tribunal considered to be lengthy, in lodging an application for a Protection visa. The Tribunal also relied on the delay in the applicant providing a detailed statement of his claim. That occurred in March 2017 in circumstances where the applicant provided very brief details in support of the claim he made in his application for a Protection visa in 2015 that he had converted to Christianity from Hinduism.[7]
(c)In his application for a Protection visa the applicant claimed he had converted from Hinduism to Christianity, but in the statement he provided to the Tribunal in March 2017 the applicant stated he was a Sikh prior to his conversion. The Tribunal did not accept the applicant’s explanations for the inconsistency.[8]
(d)The applicant’s delay in intending to be baptised in 2017 when the applicant claimed he first became involved with the Mormon Church in 2009.[9]
[5] CB187-188, [23]
[6] CB190, [31]
[7] CB190, [32]
[8] CB191, [33]-[34]
[9] CB191-192, [36]
Given these findings the Tribunal was not satisfied the applicants engaged in their activities in relation to the Mormon Church in Australia otherwise than for the purposes of strengthening their claims to be refugees; and, for that reason, pursuant to s 91R(3) of the Act, the Tribunal disregarded all of the applicants’ previous involvement in the activities associated with the Mormon faith in determining whether they have a well-founded fear of persecution.[10] The Tribunal then summarised its findings as follows:[11]
The Tribunal is drawn to the conclusion that the applicants have manufactured the totality of their claims to have converted to the Mormon faith. The Tribunal does not accept, having considered all of the evidence, that the applicants have genuinely converted to the Mormon/Church of Jesus Christ of the Latter-Day Saints. The Tribunal does not accept that they have been ostracised or they are estranged from family members as a result of any association they had with Christianity whilst in Australia. The Tribunal does not accept that they have been threatened with harm from the applicants' family members or [the applicant’s former wife’s] family members. Nor does the Tribunal accept that the applicant’s father sent an ‘affidavit’ in which he genuinely disowned the applicant.
[10] CB193, [39]. Section 91R of the Act was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), but that amending Act inserted a provision to the same effect in s 5J(6) of the Act.
[11] CB193, [41]
The Tribunal then considered whether the applicants faced a risk of harm in India because they may there be perceived as Christian converts, given the applicants’ activities in Australia in relation to the Mormon Church. The Tribunal did not accept the applicants will be perceived to be Christians by family members or villagers upon their return to India, even if they proceed with baptism in the Church of Jesus Christ of the Latter-day Saints in March 2017. Relevant to the ground of application on which the applicants rely is the Tribunal’s reasons for so finding, as revealed in the following passage:[12]
The Tribunal considers that their family members will be aware that their participation in Christianity has only been for the purposes of them fabricating claims for protection. The Tribunal does not accept that they will be harmed by their families, villagers or Indian society generally . . .
[12] CB193, [42]
In the light of these findings the Tribunal found the applicants do not have a well-founded fear of persecution for reasons of their race, religion, nationality, membership of their particular social group or their political opinion, if they return to India now or in the reasonably foreseeable future.[13] The Tribunal repeated and relied on the same findings to conclude it was not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk they will suffer significant harm on their return to India.[14] Relevant to the ground of application on which the applicants relies, the Tribunal relied on the following:[15]
As stated above, their relatives and family are undoubtedly aware that the applicants’ brief involvement in the Church of Jesus Christ of the Latter-Day Saints has been for the purpose of the applicants fabricating claims for protection.
[13] CB194, [44]
[14] CB195, [48]
[15] CB194, [46]
ground of application
The applicants rely on the following ground of application contained in the amended application filed on 23 September 2022 pursuant to leave granted at the hearing:
The Second Respondent (Tribunal) made a jurisdictional error in relation to the state of knowledge of the Applicants’ relatives and family as to their religious participation.
a. The Tribunal found at paragraph 42 of its decision that it “considers that their family members will be aware that their participation in Christianity has only been for the purposes of them fabricating claims for protection”;
b. The Tribunal reiterated at paragraph 46 of its decision that the Applicants’ “relatives and family are undoubtedly aware that the applicants’ brief involvement in the Church of Jesus Christ of the Latter Day Saints has been for the purpose of the applicants fabricating claims for protection”;
c. The Tribunal may make a jurisdictional error by making a finding of fact which is legally unreasonable: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29];
d. The Tribunal may make a jurisdictional error by making a finding of fact contrary to the no evidence rule, meaning where there is no probative evidence of the fact and no logical grounds to support the fact: DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [28];
e. The Tribunal’s finding of fact at paragraphs 42 and 46 was legally reasonable or contrary to the no evidence rule;
f. However, for jurisdictional error to arise, it was necessary for any error in a finding of fact by the Tribunal to be material, whether as part of the law of legal unreasonableness or under the principle of materiality as applicable to the no evidence rule: MZAPC v Minister for Immigration [2021] HCA 17 at [2]-[3], [33];
g. The Tribunal’s error in making the finding fact at paragraphs 42 and 46 was material in the sense there was a realistic possibility that the Tribunal’s decision could have been different had the error not been made: MZAPC at [2].
This ground is directed to the Tribunal’s finding that the applicants’ relatives and family would be aware that the applicants participated in Christianity for the purpose of fabricating their claims for protection. The applicants submit there is no relevant foundation in logic or probative evidence for this finding; the Tribunal does not disclose the basis on which it found that the applicant’s relatives and family would come to be aware of the Tribunal’s own findings of facts in relation to the applicants; and the Tribunal put forward no other basis which would inevitably lead the applicants’ relatives and family to conclude that their Christianity was part of a false scheme to obtain protection in Australia.
The Minister, on the other hand, after referring to the Tribunal’s specific findings, and in particular its findings that the applicants were not credible and that they had fabricated their claims, submitted it was open to the Tribunal to rely on an assumption that the applicants will communicate with their families about their lives, including about their application for a Protection visa. The Minister submits that it is not legally unreasonable to rely on such assumption because it is a matter of ordinary experience that family members do communicate with each other about such subjects; and the Tribunal can reason based on such experience.[16]
[16] The Minister relies on Republic of Nauru v WET040 (No 2) [2018] HCA 60, at [29], [35]
The reasonableness of the Tribunal finding that the applicants’ families would be aware that the applicants participated in Christianity in Australia only for the purpose of their fabricating a claim for protection must be assessed by reference to findings the Tribunal made and to unstated generalisations on which it may reasonably be inferred the Tribunal relied. The Tribunal found the applicants had not genuinely converted to the Mormon religion; it rejected the applicants’ claims that they had been ostracised by or estranged from their families as a result of any association they had with Christianity; and it rejected the applicants’ families threatened them with harm. The unstated generalisations on which it is reasonable to infer the Tribunal relied included the generalisations that members of families communicate with each other about aspects of their lives; that this would include important matters such as a family member’s visa status in a foreign country; and that communications between family members are made in circumstances of candour and trust.
Given the Tribunal’s findings, and the generalisations on which it is reasonable to infer the Tribunal relied, it was reasonably open to the Tribunal to find that throughout their stay in Australia, including after the applicant lodged his application for a Protection visa, the applicant and later the second applicant communicated with their families about their intentions concerning their staying in Australia, and of their plans for fulfilling their intentions, including their applying or having applied for protection on the ground that they had converted to Christianity. Further, given the Tribunal rejected the applicants’ claims that they had been ostracised, shunned, and threatened by their families because they had associated with Christianity, it was reasonably open to the Tribunal to find, as it in effect did, that the applicants did not inform their relatives that they had in fact converted to Christianity which, in turn, left it reasonably open to the Tribunal to find that the applicants had conveyed information to their families to make it plain to their families that the applicants’ application for a Protection visa was based on a false claim that they had converted to Christianity.
In any event, even if the Tribunal’s finding is unreasonable, I do not accept the applicants’ submission that such unreasonable finding is material; that is, I do not accept that the Tribunal’s finding that the applicants’ families will be aware that their participation in Christianity in Australia has only been for the purposes of their fabricating a claim for protection deprived the applicants of a realistic possibility of a different outcome.[17] The applicants have not pointed to any material that was before the Tribunal that suggested there was a possibility that, on their return to India, they would disclose to their families that they participated in Christian activities while in Australia; and given the Tribunal’s rejection of the applicants’ as witnesses of credit, the applicants have not identified any material that might show how the applicants’ families might react if they had been informed of the applicants’ activities in Australia in relation to the Mormon Church. Further, the applicants have not pointed to any other information that was before the Tribunal that could have suggested that persons who are perceived to be Christians including Mormons face any risk of harm in India.
[17] Nathanson v Minister for Home Affairs [2022] HCA 26, at [1]
The applicants, therefore, do not succeed on the ground of application on which they rely.
disposition
I will dismiss the application.
Counsel for the parties agreed that costs should follow the event. Counsel for the Minister submitted the Minister, if he succeeds, would seek that his costs be set in the amount of $5,500. I will order that the applicants pay the Minister’s costs set in the amount of $5,500.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 2 September 2022
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