BST15 v Minister for Immigration & Border Protection

[2015] FCCA 3284

FEDERAL CIRCUIT COURT OF AUSTRALIA

BST15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 3284

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) s.36
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: BST15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2368 of 2015

Judgment of: Judge Emmett

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 9 December 2015

REPRESENTATION

The applicant appeared in person with the assistance of an Arabic interpreter.

Solicitor for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2368 of 2015

BST15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 28 August 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 7 August 2015 and handed down on that date (“the Tribunal”).

2. On 8 October 2015, the applicant attended a directions hearing before a Registrar of the Court.

3. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 5 November 2015, as well as submissions in support by 25 November 2015.

4. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

6. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

7. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

8. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the AAT’s decision, as follows:

   “2. The applicant is a citizen of Egypt who first arrived in Australia on 1 September 2006 as the holder of a Student visa: CB 53-54, 101.

   3. On 13 January 2014, the applicant lodged an application for a Protection (Class XA) visa (CB 1-29) and was assisted by a registered migration agent: CB 27-29. The applicant claimed to fear harm in Egypt from the Egyptian authorities, the Islamic clergy, the community and his family because of his religion (Koranism): CB 12, CB 18-21. He claimed that he was from a strict family background and was required to observe all religious practices of Sunni Islam. Whilst in Egypt, he was expected to pray five times a day and “observe all Sunnah practice”. He began to question what he was being taught at the mosque and at University but his lecturers and elders became angry with his opinions. He claimed that he continued to practice Islam but was frustrated: CB 18.

   4. After arriving in Australia, the applicant claimed he only engaged in minimal religious practice in front of his friends. In late 2012, he met an Australian woman who was Christian and they developed a relationship, which opened up a new way of thinking for the applicant. They researched Koranism together and spoke to elders and people at the mosque. As a consequence, the applicant claimed he was called Kafir and told that his Christian girlfriend was leading him to hell. He claimed this became a turning point for him because the Koran said to consult with Christians and Jews. His relationship ceased but he continued to refine his beliefs. The applicant claimed he no longer believes in Sunni Islam and this has angered his family and caused him to lose friends. If he returned to Egypt he believed he would face harm and be unable to express his beliefs: CB 18-19.

   5. The applicant attended an interview with the delegate on 2 June 2015. The only evidence of what occurred at the interview is a summary in the delegate’s decision: CB 59-61.

   
   

   The applicant gave evidence expanding on his claims, confirmed he was a Koranist and feared harm in Egypt on this basis. Other than pages from his passport (CB 30-32), the applicant provided no other documents in support of his visa application.

   6. On 28 July 2014, a delegate of the first respondent made a decision refusing to grant the applicant a Protection visa: CB 53-66. The delegate relied on the applicant’s failure to mention his claimed fear of harm in a previous Departmental interview conducted on 8 January 2014, in his Ministerial Intervention request in September 2013, with his NSW Community Status Resolution officer or in connection with his applications for Bridging visas. The delegate found his evidence in response to this concern was “vague” and unpersuasive[1] and he doubted that the applicant had genuine concerns for his safety:

   
   CB 62

   . The delegate also relied on “a notable difference” in the applicant’s written and oral evidence about whether or not he had told his family that he was a Koranist and identified other inconsistencies in his account about his family’s anticipated response.  The delegate did not accept that the applicant was a genuine convert to the Koranist faith given his failure to engage with Koranists in Australia: CB 62. The delegate also noted the applicant’s evidence that he continued to attend a Sunni mosque in Australia. The delegate accepted that the applicant had knowledge of Koranism but found his narrative of his claimed conversion to Koranism was “vague and internally inconsistent”. The delegate was not satisfied that he had a genuine commitment to Koranism or would be publicly identified as a Koranist or Sunni non-conformist in Egypt: CB 63. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Convention reason or that he met the complementary protection criterion: CB 63, 65.

   [1] Whilst the delegate used “persuasive”, he plainly intended to state unpersuasive when read in context

   The Tribunal decision

   7. The applicant lodged an application for review with the Tribunal on 29 August 2015: CB 67-72. On 20 May 2015, he was invited to attend a hearing on 21 July 2015: CB 79-82.

   8. By a letter dated 20 July 2015, the hearing was postponed at the applicant’s request for medical reasons. He was invited to a rescheduled hearing on 27 July 2015 (CB 87-90) and attended the rescheduled hearing and was assisted by an Arabic interpreter: CB 94-97.  He provided a copy of his passport at the hearing (CB 98-111) but gave no other documents to the Tribunal in support of his case.

   9. In a decision dated 7 August 2015, the Tribunal affirmed the decision under review: CB 116-115. The Tribunal found the applicant was not a genuine Koranist and that his evidence was “inconsistent, general and vague”: CB 119, par 16. The Tribunal found he required substantial prompting to identify changes in his religious practices following “the claimed turning point” in late 2012 and noted that the only “concrete illustrations” of that were his claims that he stopped going to the mosque for about three weeks and changed his belief about the Koran being the only source of Islam. The Tribunal was not satisfied this constituted evidence that in Egypt the applicant was a Koranist or did not practice Sunni Islam. The Tribunal found the applicant’s own evidence suggested a level of intellectual and critical engagement with the religion and simply questioning aspects of one’s religion did not, without more, indicate that they no longer believed or had changed their faith: CB 120, par 20.

   10. The Tribunal also found it difficult to understand why a person with doubts about their faith and who was in a country such as Australia where there was religious freedom, would not further explore their beliefs sooner after arriving: CB 120, par 21.

   11. The Tribunal noted that the applicant made no obvious changes to his religious practice and asked him why he would pray five times a day as required by the Hadiths rather than three times as advocated by the Koran. It was not persuaded by the applicant’s explanation and was of the view that his continued practice of Sunnah in Australia (as opposed to Koranism) raised serious doubts about his claims and general credibility: CB 120-121, par 22.

   12. The Tribunal also found it relevant that the applicant, in the course of the hearing, stated that he did not consider himself to be a “Koranist” but a “Muslim Koranist” but also conceded there was no difference between a Koranist and Muslim Koranist: CB 121, par 23. The Tribunal recognised, on the basis of independent country information, that the Koranists identify themselves as Muslims, and not a particular sect. However, the applicant continued to make a distinction, asserting they were “connected’ but could not identify the alleged difference. The Tribunal found that the applicant provided “inconsistent and confused accounts of his faith”: CB 121, par 24. The Tribunal’s findings about the credibility of the applicant and his claims were findings of fact exclusively for the Tribunal to make.[2]

   13. The Tribunal also had regard to the applicant’s delay in applying for protection including in the context of his migration history: CB 121-122, pars 26-32. It found he had numerous opportunities to raise his claim of fearing harm on the basis of religious practices/beliefs but failed to do so including when he sought Ministerial intervention. The Tribunal found this raised serious doubts about his claims and general credibility: CB 122, par 29.

   14. In light of its adverse credibility findings, the Tribunal rejected the applicant’s claims for protection in their entirety: CB 122, par 30. It did not accept that the applicant suffered any claimed harm or that he practiced any Koranist related activities. The Tribunal was satisfied that if the applicant returned to Egypt he would not engage in Koranist related activities because he was not a Koranist. It was not satisfied that he would be perceived to be a Koranist or someone opposed to Sunni Islam if he returned to Egypt: CB 122, par 32.” 

   [2] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 281-282

9. The applicant was unrepresented before the Court this morning, although had the assistance of an Arabic interpreter.

10. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal unless this Court was satisfied that the Tribunal’s decision is affected by a mistake that goes to its jurisdiction. I explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake. I explained that the only issue before this Court was whether or not the decision of the Tribunal was made according to law.

11. On 5 November 2015, the applicant filed an affidavit of Toufic Laba Sarkis, affirmed on 3 November 2015. This affidavit annexed a copy of the transcript of the hearing before the AAT on 27 July 2015.

12. The applicant’s application for judicial review, filed on 28 August 2015, stated the grounds of review as follows:

    “1. The Administrative Appeals Tribunal misunderstood my evidence and the difference between following the Koran and Koranist. The Tribunal failed to understand the connection and the difference between the above terms as it appears in Koran and Hadiths.

    2. I will provide transcript in support of my application.”

13. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

14. The applicant said that the AAT had not given him time to speak; that the interpreter was not interpreting well; that she was sick or tired; that he was given only half an hour for his hearing; that he talked for only 10 minutes; that the AAT did not have knowledge of the history or difference between the Koran and Hadiths, or the difference between the Koran and Sunnah.

15. The applicant said the AAT member listened in a different way. I asked the applicant if there were particular parts of the transcript to which he wished to take me to support these complaints. The applicant said there was no specific part and that he had not been given time to explain the difference between Koranism and Sunnah. The applicant said that the AAT member said that he had lied; the applicant said that lying is not wrong because lying is in the heart and not in the tongue.

16. In relation to the applicant’s complaints about interpretation, there has been no evidence filed by the applicant, or particulars provided, of the nature of those complaints, beyond his general complaint that the interpreter was not interpreting very well and was sick and tired. The transcript does not support such an allegation. There is no complaint in the transcript made by the applicant at the hearing as to the quality of the interpreter. The transcript makes clear that questions were asked in a clear fashion and meaningful responses were given by the applicant.

17. The applicant complained that the Tribunal did not give him an opportunity to explain the difference between Koranist and Sunnah; that the Tribunal member was listening in a different way; and, that the Tribunal did not have knowledge of the history or difference between the Koran and Hadiths, or between Koran and Sunnah. However, a fair reading of the transcript does not support such allegations. I refer to the following passages in the transcript:

    “Applicant: I don't consider myself a Koranist. I just tell myself that I am a follower of the Holy Koran and it is the only rule and it is the only one that governs everything.

    …

    Member: So but you don't consider yourself a Koranist?

    Applicant: They're not really called Koranist. They are supposed to be called Muslims their name is Muslims. It is Sunna themselves who give us this name.

    …

    Applicant:… So that means according to the Sunna I am a Muslim Koranist.

    …

    Member: I am using terms that you have used in your application. You used the term Koranist.

    Applicant: Yes correct I did use the term Koranist but you know it is supposed to be a Muslim Koranist.

    Member: Okay supposed to be, what is the difference then between a Koranist and a Muslim Koranist?

    Applicant: There's no difference at all between them but if I say just Koranist

    Member: Just let the interpreter speak okay thanks yes,

    Applicant: There's no difference between them at all but if I say Koranist just plain Koranist, when you come and you ask me about religion you might say are you a Christian Catholic, or are you a Christian Orthodox, or are you a Christian Protestant

    Member: No not really.

    Applicant: It's exactly like a Muslim Koranist.

    Member: No it depends on the circumstances. It depends on the person. It depends on their faith. In fact I think it would be or it could be perceived as being inappropriate too well in some cases I think it would be inappropriate to ask somebody are you a Catholic Christian. It depends on the circumstance but in any event I ask a very clear question which was are you a Koranist and you said no.

    Applicant: Yes I am a Koranist and I do believe on the Koran but I am it is supposed to be said like this a Muslim Koranist.”

18. Those questions and answers make clear that the applicant was given every opportunity to explain the difference between a Koranist and a Muslim Koranist. It also makes clear that the applicant’s answers were inconsistent. The AAT made the following finding in relation to the applicant’s claim to be a Koranist:

    “24. The Tribunal appreciates that Koranists identify themselves as Muslims, not a particular sect. However, the applicant himself has claimed to be a Koranist. He has identified himself as being so. He continued to make a distinction between Koranist and a Muslim Koranist, yet asserting that they are “connected” and could not identify the alleged difference. The Tribunal is satisfied that the applicant has provided inconsistent and confused accounts of his faith.”

19. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). The relevant findings, particularly at the paragraph quoted above, were open to the Tribunal on the material and evidence before it, and for the reasons it gave.

20. The adverse credibility findings made by the Tribunal were made in the context of country information that was identified by the Tribunal. In the circumstances, the Tribunal finding that the applicant is not a genuine Koranist, and for that reason was not at risk, was open to it on the evidence and material before it, and for the reasons it gave.

21. The applicant’s unspecific complaint that the Tribunal member was listening in a different way is not, without particulars, capable of identifying any jurisdictional error on the part of the AAT in circumstances where neither the transcript nor the decision record bear out such a complaint.

22. A bundle of documents identified as ‘Court Book’, filed on 12 October 2015, was tendered by the first respondent and marked Exhibit 1R. In relation to the applicant’s complaint that the hearing lasted only half an hour, Exhibit 1R contains the hearing record, which discloses that the hearing commenced at 1:36pm and concluded at 3:30pm. The applicant, in reply, said that the Tribunal hearing did not commence until 2 o’clock. In any event, in his principal submissions to the Court the applicant said he was given only half an hour and talked for only 10 minutes. The evidence provided by the applicant by way of the transcript, and by way of the applicant’s own evidence, makes clear that the Tribunal hearing went for at least an hour and a half.

23. Ground 1 asserts that the Tribunal misunderstood the applicant’s evidence and the difference between following the Koran and being a Koranist; and, the difference between those terms as they appear in the Koran and Hadith. However, I accept the submissions of the solicitor for the first respondent that the applicant sought to clarify his evidence about the claimed distinction between being a Koranist and a Muslim Koranist, in accordance with the exchanges cited above.

1. Otherwise, the applicant’s complaints appear to be more in the nature of disagreement with the Tribunal’s findings. Such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

2. In the circumstances, none of the applicant’s complaints would appear to be made out. Plainly, Ground 2 does not identify any error on the part of the Tribunal. It simply states that the applicant will provide a transcript in support of his application.

3. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record.

4. The Tribunal’s decision record makes clear that the Tribunal identified the relevant law in considering whether Australia owed protection obligations to the applicant either under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

5. The Tribunal accurately summarised the applicant’s claims for protection, and provided a brief summary of the applicant’s interview with the Department of Immigration and Border Protection on 2 June 2014.

6. The AAT then set out its findings and reasons by considering who are Koranists; the applicant’s religious practices in Egypt; the applicant’s religious practices in Australia; and, the applicant’s delay in making his protection claims.

7. In relation to the applicant’s delay in seeking protection, the Tribunal noted that the applicant confirmed that he came to Australia in September 2006 as the holder of a student visa to study information technology; and, that he was granted a second student visa. However, when he applied for a third student visa, it was refused for breach of the attendance condition.

8. That refusal was affirmed by the Migration Review Tribunal. The Tribunal summarised the applicant’s migration history in its decision record as follows:

   “28. The Tribunal referred to the applicant's migration history, in particular the fact that he had arrived in Australia in 2006 yet he had applied for a protection visa in January 2014, a number of years subsequent to his arrival. The Tribunal indicated to the applicant that the delay in lodging the application for a protection visa could raise doubts about his claims. The applicant stated when he came here, his true intention was to study and religion was out of his mind. He said he came here to study IT and business management. He said his partner came into his life and it was then when he started to think again about religious matters.”

9. The AAT noted that it carefully considered the applicant’s explanation but was not persuaded by it. The AAT then considered whether there was a real chance that the applicant would suffer serious harm if he were to return to Egypt and whether he was a refugee under s.36(2)(a) of the Act and concluded that he was not.

10. The AAT then considered whether there was a real risk of significant harm to the applicant if he was to return to Egypt and considered whether he would suffer significant harm on any basis.

11. The AAT acknowledged that there were security issues in Egypt but, based on the whole of the evidence before it, was not satisfied that there was a real risk that the applicant would suffer significant harm if returned to Egypt. Accordingly, the AAT concluded that the applicant’s claim did not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there was a real risk that he would suffer significant harm as contemplated in s.36(2)(aa) of the Act. The Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (CITATION FROM TEMPLATE).

12. While I make no final decision as to whether or not the AAT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the AAT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The AAT referred to the relevant law in affirming the decision under review.

13. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 28 August 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 17 December 2015