BWD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 274
•25 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 274
File number: MLG 874 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 25 November 2021 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was required to obtain additional information – whether the Tribunal failed to ask a relevant question – whether the Tribunal’s decision was “illogical” or “irrational” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 359, 476 Cases cited: Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
MZAIB v Minister for Immigration & Border Protection [2015] FCA 139
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 8 November 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms L Mills Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 874 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWD17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 22, 46, 61). She arrived in Australia in December 2015 (CB 29, 61-62, 73 & 89) as the holder of a visitor visa.
On 28 January 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 10-45). Attached to that application was a copy of the applicant’s Malaysian passport (CB 46), various media articles and country information (CB 47-57). In her protection visa application, the applicant claimed to fear harm on the basis that she “was a lesbian in Malaysia” (which is “illegal according to Islamic law”). She claimed further that she was at risk of “the death penalty” and that she and her partner were “threatened with death” (CB 40-41). She also claimed that she would be “beaten by the surrounding communities” or “stoned” and stated that her “home may be burned” (CB 42).
On 29 February 2016, a delegate of the then Minister for Immigration and Border Protection (the “Minister”) refused to grant the applicant the visa (CB 61-72). The delegate was not satisfied that the applicant had “a well-founded fear of persecution due to her sexuality” (CB 70).
On 7 March 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 73-74).
On 28 February 2017, the Tribunal invited the applicant to attend a hearing scheduled to take place on 27 March 2017 (CB 79-80).
The applicant appeared before the Tribunal on 27 March 2017 with the assistance of an interpreter in the Malaysian and English languages. (CB 81-83). As discussed below, at that hearing, the applicant claimed that “she was not gay and had never been threatened for this reason”. Rather, she claimed to fear harm because, it appears, she had an interest in Christianity.
On 3 April 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 88-99). Relevantly, the Tribunal rejected the applicant’s claims to face a real risk of serious harm in Malaysia arising from her religious beliefs or because she will be perceived to be a Christian.
On 1 May 2017, the applicant lodged an application for judicial review in this Court (CB 1-6). That application was supported by an affidavit annexing a copy of the Tribunal’s decision (CB 7-9).
The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 12 pages long and spans 46 paragraphs. It also attaches three pages containing extracts from the Act.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) the applicant appeared before the Court without legal representation and had difficulty articulating her concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
In this matter, the Tribunal began by outlining the type of visa under review, the date that the applicant had applied for the visa, the applicant’s receiving country and the reason the delegate had refused to grant the applicant the protection visa she was seeking (at [1]-[2]). The Tribunal then outlined the relevant legislative criteria for the grant of the visa (at [3]-[7]), including any mandatory considerations (at [8]).
The Tribunal outlined the applicant’s protections claims and evidence before the Department, as follows:
9.The applicant made the following claims with her application. She is a lesbian which is not justified in Malaysia by law or religion. According to Islamic law the death penalty is imposed on homosexuals, she will be censured and threatened with death threats. People want to burn her rental property. The law is not in her favour. She would be beaten by surrounding communities, she would be stoned. Her home may be burned.
10.The applicant provided some country information about homosexuals in Malaysia. She detailed that she lived in the same location all her life in Malaysia and worked in the family business. She has never been in a relationship. She identified as a Muslim Malay.
The Tribunal then detailed the contrasting information provided by the applicant before the Tribunal, noting as follows:
11.The applicant's evidence at the hearing was very different. She stated that the information in the application was not correct, she had paid someone to complete the form. She was not gay and had never been threatened for this reason. The applicant stated that this claim had been falsely made on her behalf.
12.The applicant stated that since April 2016, after the refusal of her protection visa application by the Department, she had been attending a Christian church, on Sundays and sometimes on Friday nights. She had not converted but was attracted to Christianity. She stated that a video made of her in July 2016 addressing a Christian event had been published on a pastor's Facebook page, which a Malaysian friend had seen. In a telephone SMS conversation shown to the Tribunal from September 2016, he had asked if she was a Christian. The applicant had responded to say that she was a Muslim. The applicant has stayed in contact with her friend, who is currently seeking review of a decision to refuse his protection visa at the Federal Court. She stated that after this conversation she started thinking about Christianity more. She stated that her housemates were aware of her interest in Christianity because members of her church would come around and pick her up on Friday nights. She was concerned that her family would mock her if she returned to Malaysia as a Christian, that they were strict Muslims and may harm her.
The Tribunal confirmed that it had sighted the applicant’s Malaysian passport, determined that the applicant was a citizen of Malaysia and that her receiving country is Malaysia (at [13]). Further, the Tribunal noted that there was no evidence to suggest the applicant had any right to “enter or reside in any safe third country for the purposes of s.36(3) of the Act” (at [14]).
The Tribunal then considered the issue of credibility and outlined in detail the relevant authorities and the requirements imposed on the Tribunal when making adverse credibility findings against an applicant (at [15]-[19]).
The Tribunal determined that the applicant lacked credibility, summarising its concerns in this regard as follows:
20.The applicant was not a credible witness at the hearing, leading the Tribunal to have significant concerns about her claims to be a person interested in Christianity from Malaysia, having been a Muslim. The Tribunal considers that the applicant has concocted her claims that she is a now a practicing Christian in Australia.
21.The Tribunal identified that the applicant had deliberately lied in her application as to the fears she claimed she had in Malaysia. The applicant had paid someone to draft an application that she was a lesbian in Malaysia, and had been threatened because of her sexuality. She had provided supporting country information with her application about the treatment of gay people in Malaysia. The delegate refused the application on 29 February 2016, relying upon country information and the limited information provided by the applicant that she did not have a well-founded fear of persecution for this reason. The applicant provided this decision to the Tribunal with her application, and did not provide any new claims prior to the hearing itself. She continued to rely upon this claim until making her new claim at the Tribunal hearing itself. The Tribunal expressed its concern at the applicant deliberately lodging an application with a false claim.
The Tribunal then discussed the applicant’s evidence about her background and concluded that the information in her written application for the visa was not fully accurate. The Tribunal noted, however, that it “did have aspects of correct information”. The Tribunal then summarised the applicant’s evidence about her school, home and employment background. The Tribunal noted that the applicant’s evidence about the age at which she left boarding school (due to financial issues) “changed repeatedly, from 18, to 15 to 16”. Noting that the applicant had said she had left school at 16, the Tribunal determined that that would have been “in or around 2008”. Overall, the Tribunal considered the applicant’s evidence in this regard to be “vague and limited” (at [22]).
The Tribunal then discussed discrepancies in the applicant’s evidence regarding her living arrangements, as follows:
23.The Tribunal discussed the applicant's living arrangements. The applicant stated that since 2008 she had stayed at her mother's home in Ampang. The Tribunal confirmed this with the applicant a number of times, with the applicant giving details that accorded to the address information as found in the application. She stated that she had done some part time work with a supermarket, and then at a hotel.
24.The applicant then stated that she had lived in a rental property and had little to do with her family. The Tribunal noted that the applicant's evidence had changed since the commencement of the hearing, where she had said she lived with her mother after leaving her grandmother's. The applicant stated she lived with her mother for two years before moving out, she was not close to her mother because she had been brought up by her grandmother. The Tribunal asked why the applicant had not provided this information about different places she lived. The applicant said she had not understood the question. The Tribunal noted that the applicant had in fact answered the questions put to her at the time, and had left the information out. The Tribunal considers that the applicant was being evasive in her evidence in this regard.
In relation to the applicant’s new claim – ie, that she “now was identifying as a Christian” – the Tribunal noted:
25.The Tribunal discussed with the applicant her new claim, that being that she now was identifying as a Christian. She stated that she had not been religious in Malaysia, but over here she had found out about religion. The Tribunal asked what she liked about the Christian religion. The applicant stated that it said people should not hate each other. The Tribunal noted that most religions, including Islam, had tenets expressing this position. The applicant stated she liked the Christian way. The applicant she prayed to Jesus in her room, asking for a sign whether he wants her to remain on this path of return to her original path.
26.The applicant stated she started going to Church in April 2016, a Church of Christ group in Springvale. She stated that a group of people she stayed with invited her to go with them to church. The applicant stated that she was learning about Christianity. She had not been baptised.
The Tribunal continued:
27.The Tribunal asked her some questions about her religious faith. The Tribunal notes that it acceptable to test information the veracity of an applicant's claim by reference to knowledge or attitudes which members of the relevant religion might be expected to possess. An evaluation of an internally held attribute such as religious belief is likely to involve questions about how the individual understands that belief, what it means to that individual and how they manifest that belief. However, the questioning needs to be rationally capable of assisting a decision as to whether the person's claim to hold the belief was genuine or not, and must involve questioning of that individual's belief rather than the application of some standardised or assumed level of knowledge. Degrees of understanding will vary from person to person and it may be erroneous to ascribe to all adherents of a particular religion, for example, a required and consistent minimum understanding of its tenets. There must be a logical connection, supported by probative evidence, between an applicant's failure to hold specific knowledge and the expectation that a follower of the particular belief would have that knowledge. Accordingly, testing of this kind would not be appropriate where there is no comparator against which a qualitative assessment of an applicant's knowledge about a particular belief can be rationally made, such as where the applicant claims to be agnostic. Where an assessment is made against the most basic tenets or features of a religion (or political tradition or belief), it is more likely to be such that all followers could be expected to have that particular knowledge.
28.The Tribunal noted its role, and asked the applicant some very basic questions about Christianity. The applicant was aware of one verse of the New Testament, Matthew Chapter 21, verse 5 and recited this to the Tribunal. The Tribunal asked the applicant some more basic questions about her knowledge and experience of Christianity. The Tribunal asked the applicant about what was important about the current religious calendar. The applicant could not mention what this was. The Tribunal noted the coming up of Easter as a highly important event in the Christian calendar. The applicant acknowledged Easter was a significant event coming up. The Tribunal asked what the Christian relevance was for Easter. The applicant stated that she had no idea, she had not yet learned about it. The Tribunal expressed its concern that the applicant had little to no knowledge of what was probably the most holy tenet in Christian belief, equal to the birth of Christ itself. The Tribunal asked what was important about the birth of Christ. The applicant did not respond to this question, however the applicant then said that Jesus died then he woke up after 3 days and went to heaven. The Tribunal again asked what the applicant understood by this in a Christian context. The applicant stated she did not know.
29.As noted above, there is a delicate balance in the role of the Tribunal to question the understanding of an individual about their beliefs or knowledge on a particular subject. As identified, it is permissible to ask for information about certain tenets of the faith that the applicant should reasonably be aware of if they had attended religious events, such as church on Sunday, as the applicant claimed to do, and Friday night prayer meetings. Making an assessment of the applicant's claims as to their practice and following of the religion can be made based on the information as provided by the applicant as to their understanding of fundamental tenets of that religion.
30.The applicant's knowledge of fundamental tenets of Christianity was very limited. She had memorised one verse of the New Testament. She was aware of Good Friday and that Christ died and 'woke up' after 3 days. However she could not explain what this meant for the Christian faith, why the resurrection of Christ has such importance to Christians. It was relevant to ask the applicant these questions at this time as it is March, with Easter only a few weeks away. Churches have established a number of rituals in the weeks leading up to Easter to emphasize certain aspects of Christ's teachings, and a regular attendee of a Church would be aware of such a lead up to Easter, culminating in the miracles that are said to have occurred at Easter. The applicant had stated that she was learning about Christianity, however demonstrated very little of that learning at a time when it could reasonably be expected that the applicant would be taught about such a significant event on the Christian calendar. The applicant demonstrated very little awareness of this, which causes the Tribunal significant concern as to the claims of the applicant that she has been attending a church on a regular basis and is interested in the Christian religion.
31.The information that she does have could be easily learnt from publically available sites, it does not mean that she has been attending church in the manner she has claimed. The Tribunal notes that the credibility of the applicant is already in question, as was discussed at the hearing. The applicant stated that she paid someone to prepare a protection application and lodge it, including false information. The applicant then provided this to the Tribunal with her application, continuing to rely upon it until questioned about it at the hearing. At the hearing itself the applicant's evidence about certain aspects of her background changed, with an alternating account about her residence and family connection. The Tribunal thus takes all of this into account in determining that the claim by the applicant that she is interested in pursuing the Christian faith, and would be harmed on return to Malaysia because of her interest in the Christian faith having been a Muslim, has been concocted by the applicant for the purpose of presenting a claim to the Tribunal for protection.
32.The Tribunal considers that the applicant has provided incorrect information about the nature of her interest and her attendance of Christian events on Sundays and Friday nights. Her knowledge of Christian tenets, which should reasonably be known for someone claiming to attend so frequently, is so limited that it contradicts her statement that she is an attendee at these religious events. The Tribunal does not accept that the applicant has been attending church on Sundays or Fridays as she has claimed. The Tribunal does not accept that the applicant is a Christian, has prayed to Jesus in her room, or has a genuine interest in Christianity. The Tribunal does not accept that the applicant would practice or be interested in Christianity on her return to Malaysia.
The Tribunal then noted as follows:
33.The Tribunal notes that the applicant has provided evidence that she was filmed by a pastor at an event, which she stated was a Christian event, and that this was shared by the pastor on his Facebook account. A mutual friend of the pastor and applicant, who is Malay, saw this video and asked the applicant about it, noting that there were problems for Malay Muslims going to Christian events. The Tribunal noted that the applicant in response to his questions responded that she was a Muslim. This exchange took place in September 2016, 5 months after she stated she had gone to Church and 3 months after this video was taken. The applicant continued to converse with this acquaintance, including asking about his own protection visa application in Australia. The applicant stated she was not aware of any other person who has seen this video, her friend was aware of it only because of the mutual acquaintance, and she is not aware that he has shared the information with anyone else.
The Tribunal questioned the applicant about this event. The applicant explained that she was asked to make a presentation at a Christian event, with others, in July 2016 and did so. The applicant claimed to be unaware that this event was being recorded or that it had been uploaded to Facebook until asked about it later by her friend (at [34]).
The Tribunal assessed this evidence as follows:
35.The Tribunal considers that the applicant has attended an event that was organised by Christians, and was filmed at this event. The excerpt of the event that the applicant showed the Tribunal did not show Christian symbols, but the Tribunal accepts that the fuller version may have some Christian religion content. However the Tribunal does not accept that the applicant’s attendance and involvement in this event means that she will be seen as a Christian by other people who may see the video. The applicant herself did not see herself as a Christian for being involved in this event, three months after she was identifying herself as a Muslim when asked about it by the friend. The Tribunal considers that the applicant’s response to her friend is the accurate response, and that her response satisfied her friend who asked no further questions about this event. The Tribunal consider that the prospect of the applicant being identified in the video by other people who know her is remote, something that does not equate to a real chance or real risk of occurring. The Tribunal further does not accept that the appearance of the applicant in the video means that the applicant will be harmed because of her involvement in this event. As shown, when asked about it, the applicant gave an honest answer about her faith. The Tribunal considers that, in the remote event that she was asked about it again, the applicant would again truthfully answer that she is a Muslim, and that she will not be harmed because of her appearance in this video at the Christian event. The Tribunal find that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal continued:
36.The Tribunal questioned the applicant about her return to Malaysia. The applicant stated that she would be harmed because she was a Christian, that she would be mocked by her family. The applicant claimed that her family were strict Muslims. The Tribunal questioned this information, given her statement that she herself was not a strict follower of Islam, and that she was not close to her family. The Tribunal noted the contradiction in her evidence regarding her residence in the past few years in Malaysia, where she had said she was living with her mother, and then said she had not been. The applicant also stated her family never took care of her. The Tribunal has concerns with the evidence that her family is a strict Muslim family, given the contradictory nature of the applicant's evidence about her interaction with them. The Tribunal find that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.
37.The Tribunal further notes that the issue as to the strictness or otherwise of her family in Malaysia is not relevant, due to its finding that the applicant is not a Christian, and will not pursue being a Christian on her return to Malaysia, including attending any Christian event. The Tribunal does not accept that the information of the applicant attending an event with Christians will lead to the applicant to be harmed by her family on return to Malaysia, because they will not be made aware of this event, and because the applicant's attending of such an event does not mean that she is a Christian. The Tribunal further considers that the applicant will not be perceived to be a Christian because of any events that she has been involved in in Australia. The Tribunal find that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal further noted that the applicant claimed that the people she lived with in Australia also believe she is a Christian because people have come past to pick her up for the Friday night events. She believes these people might be concerned about “this practice of hers” (at [38]).
The Tribunal considered that “the applicant ha[d] concocted this aspect of her claim”, noting (at [39]):
The applicant stated that she was introduced to Christianity by the people she lived with, so why they would they be concerned about this practice. However even more fundamentally, the Tribunal does not accept that the applicant has attended Friday night Christian events, so the Tribunal does not accept that the applicant has associated with people who would raise this question for her non-Christian housemates. …
The Tribunal concluded as follows:
40.The applicant is not a witness of truth. She has demonstrated that she has been prepared to provide a fraudulent application with claims and supporting documentation regarding her sexual identity, and rely on this claim at both the Department and Tribunal stage. She then proceeded to provide contradictory evidence at the Tribunal hearing itself. She introduced a new claim to the Tribunal about being interested in Christianity and attending Church, but demonstrated such a limited knowledge of Christian tenets that would reasonably be expected to be known by someone attending church in the manner that she claimed. The Tribunal does not accept that the applicant has attended church in the manner she has claimed, is a Christian or is interested in being a Christian, or would be a Christian be interested in being a Christian or be perceived to be a Christian on her return to Malaysia.
Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal determined that the applicant would not face a real chance of serious harm on return to Malaysia arising from her sexual identity, her religious beliefs, or association with Christians in Australia (at [41]).
Ultimately, the Tribunal found that there were no substantial grounds to believe that the applicant would suffer significant harm if removed to Malaysia (at [42]). The Tribunal was not satisfied the applicant was a person to who Australia had protection obligations and, further, having assessed the relevant refugee criterion in detail, the Tribunal determined that the applicant also did not meet the criteria set out in s 36(2)(aa) of the Act (at [43]-[44]).
The Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (at [46]).
PROCEEDINGS IN THIS COURT
In her application for judicial review filed in this Court on 1 May 2017, the applicant provides two particularised grounds of review as follows:
The Tribunal did not make its decision of 03 April 2017 according to law, in that:
Ground 1
The Tribunal failed to exercise its statutory power under section 359 of the Migration Act 1958 (‘the Act’) to seek information from the Applicant’s church members and/or her friends and/or the pastor as to whether the Applicant has been attending church.
Particulars
1.In paragraph 12 of the Tribunal’s Decision Record (‘the Decision’) the Applicant stated that her housemates were aware of her interest in Christianity because members of her church would come around and pick her up on Friday nights. The Applicant also stated that a video was made of her in July 2016 addressing a Christian event had been published on a pastor’s Facebook page.
2.In paragraph 26 of the Decision the Applicant stated she started going to Church of Christ group in Springvale. The Applicant has also stated that a group of people she stayed with invited her to go with them to church.
3.In paragraph 33 of the Decision the Tribunal noted that the Applicant has provided evidence that she was filmed by a pastor for an event and was shared by the pastor on his Facebook’s account.
Ground 2
The Tribunal failed to consider a relevant consideration and/or constructively failed to exercise its jurisdiction in that it failed to ask the Applicant whether the church service was conducted in English and whether she has able to follow the service in the language it was conducted.
Particulars
1.In paragraph 22 of the Decision the Tribunal noted that the Applicant had left school at 16. The Tribunal had failed to ask and consider whether the medium of instruction was in Malay or in English.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions.
An affidavit dated 21 September 2021 was filed by the applicant on 6 October 2021. The affidavit annexes the following documents:
(a)Attachment A: Certificate of Baptism of the applicant dated 23 April 2017;
(b)Attachment B: Birth Certificate for the applicant’s son dated 30 January 2019;
(c)Attachment C: Letter from Froline Anak Matthew, Licensed Church Minister, Church of the Foursquare Gospel Australia dated 29 September 2021 regarding the applicant’s Church attendance and baptism; and
(d)Attachment D: Information about a third party who converted from Islam to Christianity and information regarding laws and religion in Malaysia.
The Minister objected to the tender of the materials in this affidavit. Despite that objection, the affidavit was taken as read and in evidence. Unfortunately, the material annexed to that affidavit is irrelevant in the judicial review proceedings before this Court. Attachments A to C post-date the Tribunal’s decision and there is no evidence before the Court to suggest that the information contained in Attachment D (which is undated) was before the Tribunal. It is generally not open to the Court, on a judicial review application, to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. That principle apples here.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 1 May 2017, a Court Book numbering 99 pages (marked as Exhibit 1), the applicant’s affidavit dated 21 September 2021 and filed on 6 October 2021 and written submissions filed by the Minister on 22 October 2021. For completeness, the Court also notes that the Minister filed two affidavits confirming service of the Court Book and the Minister’s submissions on the applicant.
Shortly before the hearing before this Court, the applicant contacted chambers via email and sought to have a witness (a Pastor from a church the applicant claims she now attends) “give evidence at the hearing”. Further, she asked that her ex-partner (her son’s biological father) “speak on her behalf at the hearing”. The email correspondence between the applicant and the Court in this regard was tendered at the hearing (marked as Exhibit 2).
The applicant appeared before the Court without legal representation. She was assisted by an interpreter in the Malaysian and English languages. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
The applicant’s ex-partner attended and the Court agreed to allow him assist the applicant in a support capacity. He did address the Court during the hearing and the Court thanks him for his assistance. However, the Court did not allow him to speak on the applicant’s behalf as he was not legally trained and the issues raised by him were not issues which were before the Tribunal and not issues that this Court can consider on review.
The pastor referred to above (at [37]) also attended the hearing. The Court did not allow the Pastor to “give evidence”. She did not attend at the Tribunal hearing and, when asked, it became clear that the she sought only “to clarify the situation in Malaysia” and give evidence which was not before the Tribunal. The applicant asked that the Pastor be allowed to “give evidence” about the applicant’s baptism, an event which post-dated the Tribunal’s decision. The Court rejected that request.
Noting that the applicant was unrepresented, the Court gave her (with the assistance of her ex-partner) an opportunity to elaborate on, and further particularise, the grounds of review in her application and to outline any other concerns she might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal did not believe what she said and that the Tribunal member thought she was lying. She stressed that the Tribunal had also wanted evidence from her that she had embraced the Christian faith and, when the applicant had shown the Tribunal a video that was taken by another Malaysian person at a Christian event, the Tribunal simply decided that she had only been there to celebrate. The applicant rejects that conclusion. She advised the Court she was at “the event” to learn about the Christian faith. Further, the applicant queried why, if the Tribunal thought she was not a credible witness, the Tribunal didn’t invite her to a further Tribunal hearing so that she “could present more evidence”.
The issues raised by the applicant at the hearing will be addressed below.
CONSIDERATION
In its duty to assist self-represented litigants, the Court has addressed all grounds as articulated and interpreted them broadly to ensure that, to the extent that possible legal error is identified, it can be scrutinised: MZAIB.
Ground 1
For ease of reference, ground 1 provides:
Ground 1
The Tribunal failed to exercise its statutory power under section 359 of the Migration Act 1958 (‘the Act’) to seek information from the Applicant’s church members and/or her friends and/or the pastor as to whether the Applicant has been attending church.
Particulars
1.In paragraph 12 of the Tribunal’s Decision Record (‘the Decision’) the Applicant stated that her housemates were aware of her interest in Christianity because members of her church would come around and pick her up on Friday nights. The Applicant also stated that a video was made of her in July 2016 addressing a Christian event had been published on a pastor’s Facebook page.
2.In paragraph 26 of the Decision the Applicant stated she started going to Church of Christ group in Springvale. The Applicant has also stated that a group of people she stayed with invited her to go with them to church.
3.In paragraph 33 of the Decision the Tribunal noted that the Applicant has provided evidence that she was filmed by a pastor for an event and was shared by the pastor on his Facebook’s account.
The Tribunal’s power to seek information is outlined in s 359 of the Act. That sections provides:
359 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Relevantly, s 359 of the Act provides that the Tribunal may obtain information it considers relevant. Further, the Tribunal may also invite a person to provide information, either orally or in writing. Although the Tribunal has the power to obtain information, it does not have a duty to do so. Further, there is no duty to make the applicant’s case for her or to further investigate any of the applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (“SGLB”) at [43].
The Tribunal is also under no obligation to investigate or conduct any inquiry to discover whether an applicant’s case could be better articulated or supported by additional or alternate evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
The particulars in relation to ground 1 specifically refer to the applicant’s attendance at church and a video of the applicant attending a Christian event (which was posted on Facebook).
The Tribunal considered the applicant’s claim to be a Christian or to fear harm as someone who might be identified as a Christian from [26]-[35] of its reasons.
The Tribunal forensically considered each aspect of the applicant’s “new claim” relating to her conversion from Islam to Christianity but ultimately found as follows (at [32]):
…The Tribunal does not accept that the applicant has been attending church on Sundays or Fridays as she has claimed. The Tribunal does not accept that the applicant is a Christian, has prayed to Jesus in her room, or has a genuine interest in Christianity. The Tribunal does not accept that the applicant would practice or be interested in Christianity on her return to Malaysia.
Further, the applicant was not found to be a credible witness. In that regard, the Tribunal determined as follows (at [40]):
The applicant is not a witness of truth. She has demonstrated that she has been prepared to provide a fraudulent application with claims and supporting documentation regarding her sexual identity, and rely on this claim at both the Department and Tribunal stage. She then proceeded to provide contradictory evidence at the Tribunal hearing itself. She introduced a new claim to the Tribunal about being interested in Christianity and attending Church, but demonstrated such a limited knowledge of Christian tenets that would reasonably be expected to be known by someone attending church in the manner that she claimed. The Tribunal does not accept that the applicant has attended church in the manner she has claimed, is a Christian or is interested in being a Christian, or would be a Christian be interested in being a Christian or be perceived to be a Christian on her return to Malaysia
The Tribunal considered all of the claims and all of the information which was put to it by the applicant. The applicant was advised prior to the hearing that the Tribunal was “unable to make a favourable decision” on the material it had before it and the applicant was given the opportunity to provide any further information and evidence to the Tribunal prior to the hearing. This was done through the hearing invitation letter dated 28 February 2017 (CB 79-80). That letter stated:
What you should do within 7 days of receipt of this letter
Please read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a NAATI accredited translator.
Despite this, the applicant did not provide any new information prior to the hearing. Notably, the applicant did not raise the “new claim” regarding her interest in Christianity or divulge to the Tribunal that her original claims were fraudulent until the commencement of the Tribunal hearing.
Further, the applicant had the opportunity to call witnesses before the Tribunal or provide statements from any friends or the pastor regarding her attendance at church but did not avail herself of that opportunity.
As outlined above, the Tribunal has no duty to obtain further information to assist the applicant or to make the applicant’s case for her. The Tribunal assessed the evidence before it and made findings based on that evidence. Further, the Tribunal questioned the applicant extensively throughout the hearing, noting its concerns in relation to the fraudulent application made by the applicant, as well as the contradictory evidence given by the applicant. The applicant responded and the Tribunal assessed her evidence critically and with an open mind. No adjournment was requested by the applicant to allow her to “get more evidence” and there was nothing before the Tribunal to suggest that “more time” was required.
In the circumstances, the findings made by the Tribunal were open to it. No error arises in this regard.
Ground 2
For ease of reference, ground 2 provides:
Ground 2
The Tribunal failed to consider a relevant consideration and/or constructively failed to exercise its jurisdiction in that it failed to ask the Applicant whether the church service was conducted in English and whether she has able to follow the service in the language it was conducted.
Particulars
1.In paragraph 22 of the Decision the Tribunal noted that the Applicant had left school at 16. The Tribunal had failed to ask and consider whether the medium of instruction was in Malay or in English.
The applicant alleges that the Tribunal failed to ask whether church services were conducted in the English or Malay language. The Tribunal considered that the applicant’s knowledge of the Christian faith was limited. Although not entirely clear, it appears the applicant may be suggesting that her limited knowledge of Christianity stemmed from an inability to understand what was being said.
The Court notes that the applicant’s evidence before the Tribunal in this regard was summarised by the Tribunal as follows:
26.The applicant stated she started going to Church in April 2016, a Church of Christ group in [omitted]. She stated that a group of people she stayed with invited her to go with them to church. The applicant stated that she was learning about Christianity. She had not been baptised.
When asked questions about the Christian faith by the Tribunal, including questions about Easter and events in the Christian calendar, the applicant was unable to answer. Specifically, when asked what the “Christian relevance was for Easter”, the applicant “stated that she had no idea, she had not yet learned about it” (at [28]).
The applicant did not, in any of her evidence to the Tribunal, indicate that she had ever had any difficulties understanding the church services or prayer meetings she claims she attended.
There is no evidence in the Court Book in relation to the language used in the Church services the applicant says she attended. Nor does it appear on the evidence before the Court that this issue was ever raised before the Tribunal. As is evident from the Tribunal’s reasons, the Tribunal questioned the applicant about “Christianity” generally and appears to have had detailed discussions with the applicant in this regard.
The Court does not have a transcript of the Tribunal hearing and there is no evidence in the Court Book which can in any way be read as suggesting that the applicant raised language comprehension as an issue or a barrier to her learning about Christianity.
The Court notes that in oral evidence before the Court, the applicant advised that the church services were conducted in Indonesian, which she largely understands, and that they were also translated into English.
The lack of knowledge about Christianity was also not the sole reason for the Tribunal’s findings that the applicant was not genuinely interested in the Christian religion. The Tribunal had significant credibility concerns about the applicant’s evidence more broadly, noting that the claims in her application were fraudulent and identifying multiple instances where the applicant had provided conflicting evidence.
As noted above in relation to ground 1, the Tribunal is not obliged to conduct investigations into the applicant’s claims or to make her case on her behalf: SGLB at [43]. The onus is on the applicant to put forward her case and to provide to the Tribunal any relevant evidence or information to support her claims. Here, the Tribunal’s findings were open to it on the evidence before it.
No error arises in relation to ground 2.
Otherwise
In its duty to assist self-represented litigants, the Court has remained astute and alert to the possibility of error on the part of the Tribunal: MZAIB.
To the extent that the applicant is saying that she believes the Tribunal’s decision was illogical or irrational (in light of the evidence before the Tribunal), the Court disagrees.
The test for irrationality or illogicality was summarised in SZMDS (per Crennan and Bell JJ), as follows:
131.…..[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135 …Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
It cannot be said here that the Tribunal’s ultimate findings (that the applicant was not a witness of truth and that the applicant was not genuinely interested in the Christian faith) were not open to it on the evidence before the Tribunal.
A close reading of the Tribunal’s decision shows that the Tribunal did look at the evidence provided by the applicant and that it did so in detail. This included the applicant’s evidence that she had paid someone to complete her protection visa application (which included fraudulent claims about her sexuality and claimed harms). It also included the applicant’s oral evidence about attendances at church services and prayer studies as well as discussions about the applicant’s knowledge of Christianity. The Tribunal also considered a video of the applicant at a Christian event and text messages between the applicant and a friend about her faith (at [33] & [35]).
The Tribunal analysed the evidence before it and determined as follows:
40.The applicant is not a witness of truth. She has demonstrated that she has been prepared to provide a fraudulent application with claims and supporting documentation regarding her sexual identity, and rely on this claim at both the Department and Tribunal stage. She then proceeded to provide contradictory evidence at the Tribunal hearing itself. She introduced a new claim to the Tribunal about being interested in Christianity and attending Church, but demonstrated such a limited knowledge of Christian tenets that would reasonably be expected to be known by someone attending church in the manner that she claimed. The Tribunal does not accept that the applicant has attended church in the manner she has claimed, is a Christian or is interested in being a Christian, or would be a Christian be interested in being a Christian or be perceived to be a Christian on her return to Malaysia.
On the basis of the evidence before it the Tribunal found that the applicant would not face harm on return to Malaysia for reasons “arising from her sexual identity, her religious beliefs, or association with Christians in Australia” (at [40]-[41]). As such, the Tribunal concluded, the applicant is not owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
It cannot be said here that the Tribunal’s findings in this regard were irrational or illogical. Rather, the conclusions drawn, based on the evidence before it, were entirely sound. While this Court might have come to a different conclusion, that is not the relevant test on review. Here, there is a logical connection between the evidence before the Tribunal and its core findings.
CONCLUSION
The application for judicial review filed by the applicant on 1 May 2017 and the applicant’s affidavit dated 21 September 2021 and filed on 6 October 2021 fail to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error on the part of the Tribunal.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 November 2021
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