BSD16 v Minister for Immigration
[2018] FCCA 142
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSD16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 142 |
| Catchwords: MIGRATION – Protection visa – alleged conversion from Islam to Christianity – Tribunal not believing applicant’s assertions that his conversion was genuine – extensive review of authorities on religious conversion – synthesis of current state of Full Court learning on point – no error by Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A) |
| Cases cited: Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 |
| Applicant: | BSD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1445 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 3 November 2017 |
| Date of Last Submission: | 3 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms F. Leoncio |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Ms J. Lucas |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The amended application filed on 15 September 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1445 of 2016
| BSD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The single issue in this case was the sufficiency of the Administrative Appeals Tribunal’s consideration of the applicant’s contention that his conversion from Islam to Christianity was genuine.
The applicant argued that his conversion was genuine. The Tribunal disagreed with the consequence that it rejected the applicant’s Convention-based protection claims as well as the applicant’s complementary protection claims. Counsel for the applicant submitted that the Tribunal’s finding was not based on probative material or logical grounds.
The question for me was whether the Tribunal’s decision can stand.
Synopsis
For the reasons that follow, in my judgment this application for judicial review must be dismissed.
Relevant factual narration
The applicant, a citizen of Iran of Farsi ethnicity, arrived in Australia as an irregular maritime arrival on 1 May 2013. On 26 June 2013
the applicant lodged an application for a protection (class XA) visa.
In the accompanying statutory declaration, the applicant deposed that –
a)he was born into the Muslim Shia faith but now believed in God and he was making a decision about his religion;
b)since arriving in Australia he had been able to understand the importance of the freedom of religion and to explore other faiths;
c)
he was exploring the Christian faith and attended the
New Hope Church in Box Hill twice a week having been introduced to the church by his sister;
d)he regularly attended mass, bible studies classes and prayer sessions; and
e)he wished to continue learning about Christianity.
The applicant claimed to fear harm on the basis that he would be considered a political dissident because he had decided to turn away from Islam and because he was a failed asylum seeker.
On 19 September 2014 the applicant was invited to attend an interview before the delegate on 20 October 2014 to discuss his claims for protection.
On 2 October 2014 a delegate of the Minister requested that the applicant provide identity documents.
On 17 October 2016 the applicant’s representative provided the delegate with a number of documents, including a letter from Doncaster Church of Christ and the applicant’s certificate of baptism. The letter from Doncaster Church of Christ stated that the applicant had been part of the extended Church community shortly following his arrival in Australia, coming to that community through its English conversation classes. The letter stated that after a period of discernment and lengthy conversation with pastoral staff, the applicant was baptised by full emersion on 13 November 2013 and continues to be a faithful, regular member of the congregation.
On 20 October 2014 the applicant attended an interview with the delegate.
On 6 November 2014 the delegate refused the applicant’s visa application.
On 25 November 2014 the applicant lodged an application with the Tribunal for review of the delegate’s decision.
On 11 May 2016 the Tribunal invited the applicant to attend a hearing on 10 June 2016.
On 8 June 2016 the applicant’s representative provide written submissions to the Tribunal. The applicant’s representative stated that the applicant was of the Christian faith and that he feared harm due to his Christian faith and political opinion, both real and imputed.
The submissions stated –
The Applicant submits that if he was forced to return to Iran, the Iranian government would subject him to serious harm due to his conversion to Christianity … Given he has been afforded the opportunity in Australia to research alternate faiths, the applicant decided that Christianity is more akin to his beliefs.
The Applicant instructs that he began attending the New Hope Church upon arrival to Melbourne. The applicant was baptized on 17 November 2013. The applicant continues to attend church and is an integral member of the Church Community. He attends English Conversation Classes, working bees, neighbourhood engagement dinners and family film nights. The Applicant instructs that the Church has become a very important part of his life.
We respectfully submit that based on the applicant’s testimony and evidence previously provided to the Department it is clear the applicant’s conversion to Christianity is genuine and sincere.
In particular, we note that the letter from his Church provided to the Department indicates that the applicant undertook a spiritual journey, a period of discernment and lengthy conversations with Church staff before marking the [choice] to convert.
The applicant’s representatives also referred to country information indicating that the applicant was an individual who had renounced his Islamic faith and had decided to follow the Christian faith would suffer harm upon return to Iran.
Attached to the written submissions were the following –
a)a letter from the Doncaster Church of Christ dated 31 May 2016;
b)a letter from the Bulleen Baptist Church dated 5 June 2016 stating that the applicant had been attending the Bulleen Baptist Church for approximately two years, that he had attended Sunday services regularly and had that he made many friends among members of the congregation; and
c)a certificate of attendance in respect of the participation and completion of the Alpha Course issued by the City Life Church.
On 10 June 2016 the applicant attended a hearing before the Tribunal.
On 16 July 2016 the Tribunal affirmed the decision of the delegate to reject the applicant’s application.
In the Tribunal
A transcript of the whole proceeding before the Tribunal was put into evidence before me which I read. Accepting as I do that proceedings in the Tribunal are inquisitorial, a fair-minded reader who read the questioning of the applicant by the Tribunal member in this case would be struck by the fact that the member asked questions that were direct and sometimes blunt. For example, the member closely questioned the applicant about his various addresses. The member refused to accept that the applicant, upon exiting the building in Sattar Khan, became caught up in a crowded protest. When the applicant said that upon seeing the crowd “at that moment, you cannot really think” the Tribunal member said of the applicant “I think you could think …
if you’re telling the truth”.[1] In reference to the applicant’s statement that an assailant came towards him carrying a baton and that the applicant successfully push the assailant away, the Tribunal member said “[j]ust to be clear … I’m having great difficulty in accepting that you’re telling me the truth about this incident”.[2][1] Page 11 of annexure “A” to the affidavit of Bernadette Marie Rayment sworn on 14 August 2017.
[2] Page 16 of annexure “A” to the affidavit of Bernadette Marie Rayment sworn on 14 August 2017.
The Tribunal member’s questioning of the applicant about issues of religion was far ranging. It included –
a)why the applicant had not previously mentioned how the applicant’s brother displayed a cross and photos of Jesus in the brother’s bedroom;
b)why the applicant had lengthy conversations at the Doncaster Church of Christ in the English language when the applicant’s command of English was not strong, to which the applicant responded that the person to whom he spoke at the Doncaster Church of Christ spoke slowly, making his meaning understood;
c)
how the applicant attended Bible study classes at
Doncaster Church of Christ and prayed prayers at that church on Wednesdays and Thursdays; and
d)why, on a date subsequent to October 2014, the applicant attended Bulleen Baptist Church.
Counsel for the applicant relied on a substantial portion of the applicant’s evidence to the Tribunal that led to the Tribunal member making an observation about the applicant’s understanding of Christianity. The applicant’s counsel contended that the passage revealed the Tribunal’s assessment of the applicant’s level of doctrinal knowledge against an arbitrary standard. It is as well to set out the passage in terms. It was as follows –
MR SHORT: You said that you’re reading the Bible, sometimes in English, sometimes in Farsi.
THE INTERPRETER: Yes.
MR SHORT: And you’ve also completed an Alpha Course.
THE INTERPRETER: I went twice.
MR SHORT: So what did that course teach you?
THE INTERPRETER: There is a screen showing. It’s about who Jesus is, what … these sort of things.
MR SHORT: Yes. But what did you learn from it …?
THE INTERPRETER: I mostly – that kindness and love. Helping …
MR SHORT: Did you learn anything of what Jesus teaches?
THE INTERPRETER: I’m trying, yes. Yes.
MR SHORT: Can you tell me anything about what Jesus teaches?
THE INTERPRETER: For example, about that story that – of building a house on a cliff … building a house on sands –
over the sands.
MR SHORT: What’s the meaning of that story …?
THE INTERPRETER: It says about the house which would be everlasting, which would last more – like, for a while. It’s about the kindness and love that can – with a firm foundation which …
MR SHORT: When did you last read the Bible?
THE INTERPRETER: I guess it was a few months ago.
MR SHORT: A few months ago?
THE INTERPRETER: Around … and it was about, I think, the first martyr in … Bible … which was … what was the name?
I forgot.
MR SHORT: … it’s only fair to say that it appears to me that you don’t really have a great interest in religion at all.
THE INTERPRETER: In fact, yes. Yes …
MR SHORT: Well, what you appear to like is the kindness that you’ve found among the people who have taken you in in Australia.
THE INTERPRETER: And those things that the churches’ teachers taught for us.
MR SHORT: What things can you tell me about what you’ve been taught?
THE INTERPRETER: Talking with kindness, loving … smiling, loving each other …
MR SHORT: It appears to me that apart from the kindness and love that you’ve found, you don’t really have any understanding of Christianity.[3]
[3] Pages 28-30 of annexure “A” to the affidavit of Bernadette Marie Rayment sworn on 14 August 2017.
Ultimately, the Tribunal found that the applicant had not undergone a genuine conversion to Christianity and that he would not attend a Christian church if returned to Iran.
Let me now turn to the specific findings of the Tribunal. It accepted that the applicant –
a)preferred English language churches;
b)did not practice his religion in Iran;
c)suffered a leg injury; and
d)disliked Islam and the current regime in Iran.
The Tribunal did not accept a large number of the applicant’s claims or statements he made to the Tribunal. Specifically, the Tribunal did not accept that –
a)the applicant had undergone a genuine conversion to Christianity;
b)he had any real understanding of Christianity apart from kindness and love he found in churches in Australia;
c)there is a real chance that now or in the reasonably foreseeable future the applicant will experience any problems by reason of his brother’s possession of pictures of Jesus if the applicant returned to Iran;
d)there was a real chance the applicant will be persecuted for reasons of his religion or his imputed political opinion;
e)there was real chance the applicant will be persecuted if he returned to Iran now or in the reasonably foreseeable future on the basis of any perception that he had converted to Christianity;
f)he told the truth about the incidents that took place in 2009 and 2013;
g)he told a truthful account about a person approaching him armed with a baton;
h)he was of any interest to authorities before he left Iran; and
i)he had a well-founded fear of being persecuted for one or more of the five Convention reasons if he were to return to Iran now or in the reasonably foreseeable future.
So far as the applicant’s complementary protection claims were concerned, the Tribunal made important findings. It did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, a real risk existed that he will suffer significant harm as a result of –
a)his brother’s possession of pictures of Jesus;
b)the fact that the applicant does not practise Islam;
c)the fact that he was a failed asylum seeker; or
d)the fact that he will voice his dislike of Islam in a way that will attract the authorities.
The Tribunal addressed the issues found in s.36(2A) of the
Migration Act 1958(Cth) (“the Act”) and stated it was not satisfied the applicant will suffer significant harm.
The Tribunal concluded that the applicant did not satisfy the criteria of ss.36(2)(a) or 36(2)(aa) of the Act and therefore he did not meet the s.36(2) requirement for a protection visa. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
In this court
Being dissatisfied with the decision of the Tribunal, on 8 July 2016 the applicant filed an application for judicial review in this court.
His stated grounds of review were extremely (and unhelpfully) general. He asserted as follows –
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.[4]
[4] Application filed on 8 July 2016 at p.3.
Ground 2 was not a proper ground of review. It was a statement that the applicant had applied for legal aid and was awaiting a response.
That ground gave no insight into the basis on which the applicant sought to impugn the decision of the Tribunal.
Ground 1 gave no particulars. By reason of that fact alone, it was within my power to dismiss this proceeding, as was observed by Gilmour J in WZAVW v Minister for Immigration and Border Protection.[5]
[5] [2016] FCA 760.
The applicant filed an amended application on 15 September 2017.
In it the applicant sought review on the basis that the Tribunal erred in its finding that the applicant did not have a genuine interest in Christianity, that he had not undergone a genuine conversion to Christianity and that he would not attend a Christian church if returned to Iran because those matters were not grounded upon probative material and logical grounds.
Ms Leoncio of counsel submitted, in arguendo, that the applicant had one ground of review that related to the Tribunal’s findings concerning the applicant not having a genuine interest in Christianity and that he had not undergone a genuine conversion to Christianity.
In developing her submissions, Ms Leonico took me to six authorities of the Federal Court of Australia that bore upon the genuineness of an applicant’s conversion from one religion to another. The genuineness of an applicant’s religious beliefs is central to the application of
Article 1A of the Convention as implemented in s.36 of the Act, as the Full Court of the Federal Court of Australia explained in MZZJO v Minister for Immigration and Border Protection[6] (“MZZJO”).
There, the Full Court (North, Bromberg and Mortimer JJ) held as follows –
For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims.
In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge (footnotes omitted).[7][6] [2014] FCAFC 80.
[7] [2014] FCAFC 80 at [47].
[8] [2006] FCAFC 129.
Ms Leoncio commenced her analysis of the authorities relevant to the genuineness of an applicant’s religious conversion by addressing the decision of the Full Court of the Federal Court of Australia in
SBCC v Minister for Immigration and Multicultural Affairs[8](“SBCC”). There, the Full Court (French, Lander and Besanko JJ) held as
follows –
Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground. Here, there was ample ground for the Tribunal to find that the appellant’s case was fabricated and, a fortiori, that it could not be satisfied as required by s 91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be a refugee.[9]
[9] [2006] FCAFC 129 at [45].
Chronologically, next came the 2007 decision of the Full Court of the Federal Court of Australia in WALT v Minister for Immigration and Multicultural and Indigenous Affairs[10] (“WALT”) although in relation to claims of religious conversion the earlier decision of Merkel J in Mashayekhi v Minister for Immigration and Multicultural Affairs[11] (“Mashayekhi”) was relevant. In WALT, the Full Court examined the Tribunal’s assessment of the conversion under consideration in that case and held as follows –
We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his “conversion”, or at the time of the Tribunal’s hearing. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country (footnotes omitted).[12]
[10] [2007] FCAFC 2.
[11] (2000) 97 FCR 381.
[12] [2007] FCAFC 2 at [30].
A Tribunal should explore what an applicant has done or learned in the practice of his or her new religion. On that issue, in WALT the
Full Court held as follows –
The Tribunal, as its reasons indicate, took a range of factors into account in rejecting the appellant’s claim that he had converted to Christianity at age 11. In addition to his knowledge of Christianity at that time and subsequently, and the evidence that he had not practised Christianity in any identifiable way, it considered his explanation for his claimed conversion, the way in which he said he came to be converted, the fact that he had not consulted his family or others about his plans or developing beliefs, and that he was vague in his account of seeking protection from the authorities and appeared to change his evidence when questioned on such matters. They were all relevant matters for the Tribunal to consider.[13]
[13] [2007] FCAFC 2 at [31].
Matters that bore upon its conclusion that the Tribunal made no error included the issues identified in paragraph 32 of its reasons.
They were –
The Tribunal, as its reasons indicate, took a range of factors into account in rejecting the appellant’s claim that he had converted to Christianity at age 11. In addition to his knowledge of Christianity at that time and subsequently, and the evidence that he had not practised Christianity in any identifiable way, it considered his explanation for his claimed conversion, the way in which he said he came to be converted, the fact that he had not consulted his family or others about his plans or developing beliefs, and that he was vague in his account of seeking protection from the authorities and appeared to change his evidence when questioned on such matters. They were all relevant matters for the Tribunal to consider.[14]
[14] [2007] FCAFC 2.
Each of the decisions in Mashayekhi, WALT and SBCC was examined by a differently constituted Full Court in Minister for Immigration and Citizenship v SZLSP[15] (“SZLSP”). The Full Court (Kenny, Rares, and Buchanan JJ) split as to the result. That case was complex and calls for detailed examination. It is instructive to examine the different lines of reasoning in each decision. Kenny and Rares JJ dismissed the appeal whereas, in dissent, Buchanan J allowed the appeal. In the upshot, the decision of the Federal Magistrates Court was upheld with the result that the Full Court concluded that the Tribunal fell into jurisdictional error.
[15] (2010) 187 FCR 362.
It is necessary to say a little about the facts of the case.
There, the visa applicant sought a protection visa asserting a fear of persecution in China on the basis that he believed in Falun Gong.
The Refugee Review Tribunal questioned the visa applicant about the tenets of Falun Gong and used his answers as the basis of finding that the visa applicant had not practised Falun Gong as claimed, concluding that he knew almost nothing about Falun Gong. On judicial review
(to what was then the Federal Magistrates Court) the court held that the Tribunal set up a minimum standard of knowledge of a religious belief and then took on the role of arbiter of doctrine. The Minister appealed to the Full Court of the Federal Court of Australia.
It is not necessary to go to the procedural peculiarities of the case as they did not bear upon the central question of relevance to the determination in the case. The presiding judge, the Honourable
Justice Kenny, squarely addressed the question of whether the Tribunal erred by imposing an arbitrary standard of knowledge of Falun Gong. Translated to the facts of this case, her Honour’s examination of the issue is directly relevant as it lights the path of enquiry about whether the Tribunal erred in its consideration of the visa applicant’s knowledge of Christianity. Her Honour referred to the observations of Gray J in Wang v Minister for Immigration and Multicultural Affairs[16] where Gray J said as follows –
Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.[17]
[16] (2000) 105 FCR 548.
[17] (2000) 105 FCR 548 at [16].
Kenny J also referred to the decision of Merkel J in Mashayekhi, a case with a factual parallel to the present case as both involved the claim by the visa applicant that the applicant converted to Christianity. Merkel J posed the relevant matter in the following terms –
… if the RRT is to fairly and justly discharge its important functions under the Act, it is critical that it:
• be sensitive to the cultural, social and religious difference that exists in so many of the societies with which its cases are concerned;
• does not arrive at or state its findings of fact on such issues with greater confidence than the circumstances of the particular case may warrant.[18]
[18] (2000) 97 FCR 381 at [16].
Kenny J also examined the decision of the Full Court in WALT.
Her Honour extracted from WALT the following –
But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.[19]
[19] [2007] FCAFC 2 at [29].
Her Honour addressed the observations of the Full Court in SBCC.
The relevant passages on which her Honour relied was as follows –
The second ground of appeal was said to go to the ‘apparent imposition by the Tribunal of a standard that it imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status’. There was, it was said, no evidence before the Tribunal to indicate any ‘cut off’ point for an acceptable minimum level of knowledge for a Falun Gong practitioner.
The short answer to this contention is that where a person makes a claim to be an adherent of a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case.[20]
[20] [2006] FCAFC 129 at [46]-[47].
If I may say so with the greatest respect, her Honour was correct in her observation that a complex issue is thrown up in any consideration of authorities relevant to the genuineness of a visa applicant’s religious conversion and, whether jurisdictional error is committed by applying an arbitrary standard of knowledge of religious doctrine. But, if a tribunal ultimately finds that an applicant’s lack of knowledge is a reason to reject his claim, such a finding does not necessarily mean that the tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
Her Honour further held that the analysis in WALT and SBCC demonstrated that a tribunal’s reliance on factors other than its evaluation of a visa applicant’s knowledge will typically be a strong indicator that the tribunal conducted a legitimate exploration rather than making a determination by reference to a perceived minimum standard of knowledge. Her Honour added –
As the authorities emphasise, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs.
When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.[21]
[21] (2010) 187 FCR 362 at [38].
Kenny J then qualified the more general statements in her Honour’s reasons. Those qualifications may be relevantly condensed as follows –
a)where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know;
b)where that applies and the applicant is wholly ignorant of the relevant doctrinally elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims;
c)where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, the issue becomes more complex and in those circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion;
d)depending on the facts of the particular case, trivial variations in detail or superficial deficiencies in expression may not rationally justify the conclusion that applicant’s knowledge is less than would be expected of a genuine adherent; and
e)in those circumstances, jurisdictional error is a possibility.[22]
[22] (2010) 187 FCR 362 at [39].
Her Honour ultimately concluded that the Tribunal fell into jurisdictional error and so its decision should be set aside.
That conclusion had the effect of dismissing the appeal from the magistrate. Her Honour reasoned as follows –
a)on the face of the Tribunal’s written statement, the Tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds;
b)
the statement did not disclose any material by reference to which a rational decision-maker could have evaluated the
first respondent’s answers, there being no such material in the record and there being no other logical basis to justify the Tribunal’s findings; and
c)in those circumstances, it was appropriate to infer that the Tribunal’s decision-making was arbitrary and irrational such to constitute jurisdictional error.
In shorter reasons, Rares J agreed with the orders proposed by Kenny J in reaching the conclusion that the Tribunal committed jurisdictional error. At paragraph 98 his Honour held as follows –
The issues considered by the tribunal can involve, and often are claimed to involve, persons who fear for their lives if their claims for protection visas be rejected. As French, Sackville and Hely JJ said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46] some of its decisions may literally be life or death decisions for an applicant. Where the tribunal fails to comply with the requirements of s 430(1) and it is not possible to be satisfied that its written statement had a proper basis, the court can infer, safely, that the tribunal constructively failed to exercise its function of review.
Buchanan J took the view that the appeal from the magistrate was to be upheld. His Honour found that the Tribunal did not ask itself a wrong question nor did the Tribunal apply an arbitrary standard.
In the result, the appeal against the decision of the magistrate was dismissed.
Chronologically, next came the Full Court’s decision in Minister for Immigration and Citizenship v SZOCT[23] (“SZOCT”), judgment in which was handed down in December 2010, a little over three months following the decision in SZLSP. Buchanan J sat on both Full Courts. Ms Leoncio placed particular reliance on the decision in SZOCT so it is necessary to devote a little attention to the analysis of it.
[23] [2010] FCAFC 159.
At the outset, let me observe that the court (Jacobson, Buchanan and Nicholas JJ) split as to the result and as to various issues that were raised in the appeal. The reasons were complex and bear close examination.
The visa applicant applied for a protection visa claiming to fear persecution in China because he was Christian. The visa applicant told the Tribunal he had studied the Bible up to three times a week while he was in China over a four-year period and that he had studied the Bible nearly every day since arriving in Australia. The Tribunal questioned the visa applicant about verses of the Bible, testing his ability to recite particular passages from memory. The Tribunal asked him to cite the exact book, chapter and verse of the Bible for each passage.
The Tribunal concluded that the visa applicant was not a credible witness and that he was not a practising Christian. Upon seeking judicial review, the Federal Magistrates Court held that the Tribunal fell into jurisdictional error by asking itself a wrong question and that the Tribunal had erroneously set itself up as an arbiter of doctrine by asking whether the visa applicant’s knowledge of the Bible corresponded to some particular level of doctrinal knowledge to justify his being regarded as a Christian.
The Minister appealed to the Full Court of the Federal Court of Australia. Buchanan and Nicholas JJ held that the Tribunal did not ask itself a wrong question. Jacobson J dissented, holding that the Tribunal committed jurisdictional error when it became the arbiter of doctrine with respect to Christianity. To better understand the rationale behind the reasons of each Justice, it is necessary to go to the details.
While Jacobson J was the presiding judge, as his Honour was in dissent I shall turn first to Buchanan J’s reasons.
Buchanan J quoted with approval the reasons of the Full Court of the Federal Court in SBCC at paragraph 45. There, the Full Court held as follows –
Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground …
His Honour addressed the nature and peculiarity of a line of questioning by the Tribunal and whether such a line of questioning indicated actual bias or gave rise to an apprehension of bias.
His Honour said it did not, using the following reasoning –
In my view the criticisms which were made in the present case, even accepting for present purposes that the questioning was highly specific and arguably onerous, do not sustain a conclusion of jurisdictional error by reason of reasonable apprehension of bias. Bias (or the reasonable apprehension of bias) is not demonstrated by the selection and administration of a series of highly specific questions, even if they take on the appearance of an examination. The critical issue is what use was made of the responses. An assessment of that issue must take account of the latitude allowed to administrative decision makers and to the nature of the process undertaken by the RRT.[24]
[24] [2010] FCAFC 159 at [45].
His Honour held that it was not impermissible for the Tribunal to enquire about the depth of knowledge possessed by the applicant for a protection visa when claims for protection were based on the suggested likelihood of persecution for religious reasons. His Honour put the matter in the following terms –
I take it to be established by the authorities to which I have referred that it is not impermissible, despite the observations of Gray J in Wang, for the RRT to enquire about the depth of knowledge possessed by an applicant for a protection visa when claims for the protection visa are based on the suggested likelihood of persecution for religious reasons. On the other hand, there must be a satisfactorily disclosed foundation from which any conclusion, that adequate knowledge is not held, may proceed. There must also be a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution.[25]
[25] [2010] FCAFC 159 at [50].
Buchanan J took the view that there was nothing untoward in the approach adopted by the Tribunal. His Honour held that the Tribunal adopted the more pragmatic approach of assessing whether the level of knowledge actually displayed by the visa applicant corresponded with the level of knowledge likely to be possessed by a person who had studied the Bible up to three times a week in China over a period of years and nearly every day in Australia and whether the level of knowledge disclosed gave support to the visa applicant’s claims or alternatively suggested that he should be disbelieved. His Honour said that despite any criticisms that might be available about the approach taken by the Tribunal, in his Honour’s view the matters examined by the Tribunal were legitimate in the circumstances and the Tribunal did not ask itself a wrong question.
Nicholas J took the view that despite his Honour’s general agreement with Jacobson J to the effect that the decision could not be permitted to stand, other grounds existed for the Tribunal’s conclusion that the applicant was not a credible witness and so it was open to the Tribunal to conclude that Australia did not owe the applicant protection obligations.
While in dissent in respect of the result, Jacobson J made four pivotal observations. They were these –
There are four essential principles which are relevant to the disposition of the appeal. Without seeking to depart from
his Honour’s statement of the principles or the full exposition of the principles in the various authorities, I will endeavour to encapsulate them as follows.First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 (SZLSP) at [38].
Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].
Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39].
The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.[26][26] [2010] FCAFC 159 at [6]-[10].
Ms Leoncio submitted, correctly in my view, that as Nicholas J agreed with Jacobson J’s reasons, it should be deduced that the four propositions adumbrated by Jacobson J had the support of Nicholas J. It followed, it seemed to me, that the four propositions recorded by Jacobson J should be taken as being statements of principle of the majority in SZOCT.
In MZZAS v Minister for Immigration, Multicultural Affairs and Citizenship[27] (“MZZAS”), the Honourable Justice Mortimer referred to the four propositions of Jacobson J in SZOCT. In MZZAS, Mortimer J said –
It is no small matter to disbelieve a person’s claim to hold a religious belief. I agree, with respect, with the statement of Buchanan J in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 586–7 [40] that the question of what standard of knowledge can be expected of a person is a sensitive and difficult one. Nevertheless, I am satisfied that in this case the nature of the Tribunal’s questions was permissible, and the answers given by the appellant provided a rational foundation for the conclusions the Tribunal reached.[28]
[27] [2013] FCA 757.
[28] [2013] FCA 757 at [25].
In 2014, the question of the Tribunal’s treatment of the genuineness of the visa applicant’s religious beliefs was again before a Full Court (North, Bromberg and Mortimer JJ) in MZZJO. The court made observations on key authorities on point including SBCC, WALT, SZLSP and SZOCT. At paragraph 47, the court held as follows –
The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute - such as an opinion or a belief - is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge (footnotes omitted).
On the facts of that case, the Full Court took the view that a fair reading of the Tribunal’s reasons made it clear that it was a lack of interest in religion per se rather than a lack of understanding of agnosticism that led to the Tribunal’s view that the visa applicant did not have a genuine interest in religion nor even a genuine interest in agnosticism. The Full Court held that it was open to the court undertaking judicial review to conclude that the Tribunal’s decision was open to it.
In debate with Ms Lucas, I probed why the Tribunal in this case interrogated the applicant so seemingly closely about aspects of the applicant’s faith. I put the following to Ms Lucas –
Why is that even a probative line of questioning? I must say – perhaps I’m looking at this entirely wrong and tell me if I am, but – and it’s almost something about which I could take judicial notice – that there are very many people out there in the community who profess a belief and don’t practice it or they profess a belief and couldn’t give you the most fundamental tenets of the faith that they follow, but they nevertheless profess the belief. Why is this Tribunal member interrogating this person to such a degree?[29]
[29] Transcript of proceeding, 3 November 2017 at p.20.
By way of response, Ms Lucas said the following –
We have to look at – it is legitimate, but we’re testing that against what is the fear of persecution on return to Iran. So somebody might say, “Look, I believe in God, but when I go back to Iran, I’m not going to attend church. I’m basically going to keep that to myself and believe in God and pray at home. I’m not going to go out there and put myself in the harm of the Iranian authorities.” and in that sense, the Tribunal would have to look at whether or not simply holding that belief would give rise to a fear of persecution.[30]
[30] Ibid.
As it happened, the questioning by the Tribunal member in this case was gentler and more abstract than was the very searching questioning adopted by the Tribunal member in SZOCT and which Buchanan J held was entirely appropriate.
Drawing the threads together
Having essayed the more important concepts that the decided cases since 2006 have revealed, it is possible to catalogue them in the manner set out hereunder. They are –
a)for the purposes of applying article 1A of the Convention as implemented in s.36 of the Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as the visa applicant claims (MZZJO at [47]);
b)in protection claims based on religion, the issue for the Tribunal is whether the applicant for protection has a well-founded fear of persecution by reason of his or her religion if that person were to return to the country from which he or she has fled and the visa applicant’s religious beliefs and practices up to the time of the Tribunal’s decisions are relevant (WALT at [31]);
c)so long as the Tribunal acts consistently the requirements of procedural fairness, the Tribunal may inform itself as it thinks fit;[31]
[31] SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402.
d)if the Tribunal is fairly and justly to discharge its important functions under the Act, it is critical that it is sensitive to the cultural, social and religious differences that exist in so many of the societies with which its cases are concerned and it is equally critical that it does not arrive at or state findings of fact on such issues with greater confidence than the circumstances of the particular case warrants (Mashayekhi);
e)where a person makes a claim to being an adherent of a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim (SBCC at [46] to [49]);
f)if a Tribunal ultimately finds that a visa applicant’s lack of particular knowledge is a reason to reject his or her claim, that finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge (SZLSP at [37]);
g)highly specific questioning by the Tribunal will not sustain a conclusion of jurisdictional error by reason of reasonable apprehension of bias, even if those questions take on the appearance of an examination, because the critical issue is the use to which the answer may be put;[32]
[32] SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109.
h)the question of what knowledge can be expected of a person is a sensitive and difficult one (SZOCT at [40]);
i)where a Tribunal rejects an applicant’s claims based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might reasonably be expected to know (SZLSP at [39]);
j)where a visa applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as claimed (SZLSP at [39]);
k)where the Tribunal’s material and the applicant’s answers differ in manner of expression, emphasis or in detail, the perceived variations must be such that there is a logical connection between those variations and the conclusions that the applicant is not an adherent to the religion (SZLSP at [39]);
l)depending on the facts of the particular case, trivial variations or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent (SZLSP at [39]);
m)in such circumstances, jurisdictional error is a possibility (SZLSP at [39]); and
n)
where the Tribunal’s determination regarding the state of satisfaction turns on its evaluation of an applicant’s knowledge of a religion and that evaluation is illogical in the relevant sense,
the jurisdictional foundation for the Tribunal’s decision will be absent.[33]
[33] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Application of legal principles
Applying the principles set out above to the facts of this case, several matters emerged.
First, it was entirely proper for the Tribunal to investigate with the applicant details of his knowledge of the religion to which he claimed to adhere, namely Christianity.
Next, the Tribunal acted in accordance with principles of procedural fairness in informing itself about the knowledge possessed by the applicant about Christianity and whether the applicant was a genuine adherent to Christianity.
Next, the Tribunal was entitled to ask highly specific questions in ascertaining information about the visa applicant’s religious beliefs.
Next, based on the questions asked by the Tribunal member in this case, under no circumstances could it be said that those questions revealed a reasonable apprehension of bias.
Here, it seemed to me that there was in fact a logical basis by which the Tribunal was able to conclude that variations existed between what an adherent of the Christian faith might be expected to know and what the applicant knew of Christianity and the teachings of Jesus.
On the facts of this case, the applicant’s answers to questions put by the Tribunal member revealed a knowledge of Christianity that did not pass beyond his state of knowledge of kindness, love and helping.
I do not agree with the applicant’s contentions that the questioning that led to the applicant’s answers about kindness, love and helping amounted to doctrinal knowledge against an arbitrary standard.
It seemed to me that the applicant’s very limited knowledge of the Bible, of matters of the Christian faith, even his conversion and participation in a ceremony of baptism did not reveal information by which the Tribunal could be satisfied that the applicant had a genuineness of belief in the Christian faith. The questions posed by the Tribunal were perfectly permissible. The answers revealed a defective understanding of Christianity. Such a defective understanding was explicable by the applicant’s want of interest in Christianity, and the Tribunal’s conclusion to that effect was open.
To my mind, it was open to the Tribunal to conclude that the answers given by the applicant showed that the applicant was not a genuine adherent to Christianity. It was also open to the Tribunal to conclude that the applicant had not met ss.36(2)(a) or 36(2)(aa) of the Act.
Conclusion
On the single ground argued by the applicant I did not detect jurisdictional error.
This application must be dismissed with costs and I so order.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 25 January 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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