CCJ17 v Minister for Immigration

[2018] FCCA 2723

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2723

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to take into account corroborative evidence – whether the Tribunal’s credibility findings were such that the Tribunal could reject corroborative evidence out of hand.

Cases cited:
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; [2003] HCA 30
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74

Applicant: CCJ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 996 of 2017

Judgment of: Judge Riley

Hearing date: 20 June 2018

Date of last submission: 20 June 2018

Delivered at: Melbourne

Delivered on: 24 September 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Laura Groves
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The decision of the Administrative Appeals Tribunal made on 27 April 2017 in matter number 1505471 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 996 of 2017

CCJ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa.

2. The applicant is a citizen of Bangladesh.  He arrived in Australia on 20 July 2007 on a student visa.  Later, he was granted a skilled graduate visa. In May 2013, he was married in a traditional Islamic ceremony in Bangladesh.  He claimed that he later converted to Christianity.  He was baptised in December 2013. On 2 January 2014, the applicant applied for a protection visa on the grounds that he faced a real chance of persecution as a Christian in a Muslim country.  The applicant’s skilled graduate visa ceased on 5 March 2014. 

The applicant’s claims

1. The Tribunal summarised the applicant’s written claims at paragraph 6 of its reasons for decision, which is as follows:

   The applicant’s written reasons for claiming protection are contained in his visa application forms and written statement attached to those forms. In summary the applicant states he left Bangladesh to pursue his studies in Australia, and while in Australia he has converted from Islam to the Christian religion. Many Muslims in Bangladeshi (sic) who convert to Christianity suffer abuse, persecution, threats and death in Bangladesh at the hands of Muslim extremists. The applicant fears that if he returns to Bangladesh, now that he is a Christian, it is inevitable that he will suffer significant harm. The applicant refers to a number of country information sources which indicate converts to Christianity suffer from various forms of harm, persecution and death at the hands of extremists in Bangladesh. Government authorities and law enforcement are not in a position to protect individuals, and can be bribed and biased. If returned to Bangladesh the applicant states his family will not accept it and there will be no acceptance or respect for him and he will be living in fear. Islam is the State religion, and religious minorities live in fear of attack, threat, mistreatment and persecution. Religious minorities often suffer land fraud, rape, threat of death and kidnapping and forced conversions and marriages. The applicant fears he will be harassed, hated, oppressed, discriminated [against], criticised, persecuted or get (sic) killed if he returns to Bangladesh.

The Tribunal’s reasons

1. The Minister summarised the Tribunal’s reasons for decision in his written submissions filed on 30 May 2018 as follows:

   11.The Tribunal had significant concerns in relation to the applicant’s credibility and found him not to be a witness of truth: CB 265, [33]. This was due to differences between the applicant’s oral evidence and both information provided in his visa application and in his written submissions. For example, the Tribunal considered that the applicant had given differing versions of how he came to be interested in converting to Christianity.  The applicant gave evidence that no one in Bangladesh knew about his conversion to Christianity: CB 268, [56]. This differed from the applicant’s pre−hearing submission which stated that people from his wife’s village community knew he was a Christian convert: CB 268, [57].

   12. The Tribunal was not convinced about the applicant’s explanations for his ‘mistakes’ in both his visa application and the pre−hearing submission: CB 265, [34]−[44]; CB 268  [58]−[62]. The Tribunal considered that these inconsistencies reflected poorly on his credibility: CB 267, [47].

   13. The Tribunal was also concerned that the applicant had decided to convert to Christianity only a few months before the expiration of his Skilled visa, and that the applicant was married in an Islamic ceremony in May 2013 (only months before his  conversion): CB 267, [48]–[53].

   14. The Tribunal placed little weight on the statutory declarations provided by the applicant’s associates: CB 269, [65]−[66].

   15. The Tribunal accepted that the applicant had some knowledge of the Christian faith and accepted that he attended some religious study in December 2013. However, the Tribunal considered the applicant’s evidence of his interest in Christianity and his conversion to be exaggerated. The Tribunal did not accept that the applicant had a genuine religious belief in the Christian faith and did not accept that he would practice as a Christian if he returned to Bangladesh: CB 269, [68]−[69].

   16. The Tribunal therefore did not accept that the applicant would either be known to be, or perceived to be, a Christian convert if he returned to Bangladesh: CB 269, [70]−[71].

   17. The Tribunal noted that the applicant had withdrawn his claim to fear harm from his ex-wife’s family. However, it still considered that claim and found that while the ex-wife’s family may be upset with the applicant because his marriage did not work, the  applicant does not face a real chance of serious harm on that basis: CB 270, [72]−[73].

   18. The Tribunal ultimately found that the applicant did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (the Act): CB 270, [74]–[77].

   19. The Tribunal relied upon its earlier credibility findings, and its findings against the refugee criterion, to conclude that the applicant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act: CB 270, [78]−[87].

Ground 1

1. The first ground of review in the application filed on 16 May 2017 (“the application”) is:

   The Tribunal erred in Paragraph 33 in finding the Applicant is not a truthful witness.

2. Paragraph 33 of the Tribunal’s reasons for decision is as follows:

   During the hearing the Tribunal raised a number of concerns in relation to the applicant’s credibility. The Tribunal raised concerns about differences between the applicant’s oral evidence and the information he provided in his visa application form, and the information in his representative’s written submissions. The Tribunal also raised concerns about the timing of the applicant’s claimed conversion and the lack of recent co-corroborative (sic) material indicating the applicant had continued to attend Church and practice Christianity as claimed. The Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the truth about critical aspects of his claims. The reasons for this finding are discussed below.

3. The reasons for the Tribunal’s credibility finding are set out in paragraphs 34 to 66 of the Tribunal’s reasons for decision. 

4. The applicant was unrepresented in the proceedings before this court.  He did not provide particulars of his grounds of review in his application and did not provide written submissions to the court.  In his oral submissions, the applicant challenged the Tribunal’s findings concerning his claims about when he converted to Christianity, particularly in relation to when he lived in Devonshire Street.  The Tribunal’s findings about this issue are contained at paragraphs 35 to 47 of its reasons for decision.  Those paragraphs are as follows:

   35.The Tribunal found the applicant’s oral evidence vague and confused when questioned about when he became interested in Christianity. He mentioned his brother’s death in 2008 was a catalyst, as well as moving into a house where most of his housemates were Christian, a house in Devonshire Street, amongst other reasons. The applicant stated he moved to the new house about a year after he returned from Bangladesh in 2008 where he had been attending his brother’s funeral.

   36.The Tribunal raised its concerns that the applicant had earlier provided different oral evidence in relation to when he moved into the house in Devonshire Street. The Tribunal noted the applicant had initially told the Tribunal he had moved to that house about three or four years after he arrived in Australia in 2007. The Tribunal also raised its concerns that the applicant had provided different information in his visa application forms, noting the information provided in those forms indicates the applicant moved to Devonshire Street in February 2012.

   37. In response the applicant told the Tribunal the information in his visa application form was a mistake. The Tribunal noted the applicant had earlier told the Tribunal he completed the forms himself, and asked the applicant why he stated in his forms he moved to the Devonshire Street house in February 2012 if that was not correct. In response the applicant told the Tribunal it was a mistake and he was not paying attention to the information at the time. When questioned why the applicant would give such a specific date of February 2012 in the visa application forms, the applicant was unable to explain why he wrote that date.

   38.The Tribunal also noted the applicant’s representative’s pre hearing written submission states that after returning back from Bangladesh in mid-2013 the applicant started associating and living with Christian friends…In response the applicant told the Tribunal that was an error in the submission, and although he had been provided a copy of the submission prior to the hearing he did not find this error.

   39.The representative also told the Tribunal that what she meant in that part of her submission was that the applicant’s instructions were that he became very seriously involved in the religion and making the decision to convert upon his return at this time.

   40.The Tribunal has also taken into consideration the applicant’s post hearing statutory declaration, which states that in the hearing he was embarrassed about the situation and lost a bit of control of his conversation and was therefore unable to recall every single reason why the information between his oral evidence and his visa application forms was different.

   41.The applicant refers to the effect his brother’s sudden death had on him, and provides details of his move from Creswick Street when he returned from Bangladesh in February 2009, into a house with people who were predominantly practising Muslim, where he thought he would be able to be in touch and practice more about his religion. The applicant outlines the problems and harsh treatment he received from his new housemates and his shock at their behaviour as they were claiming themselves to be good people and good Muslims, which was not true. The applicant states he left the house and move[d] back to Creswick Street again, and then moved to a house in Devonshire Street in February/April 2010, which he shared with different people overtime (sic), including Mr Paul Sabato, who also provided a statutory declaration in support.

   42.The Tribunal notes the applicant’s evidence about when he started living with Christian friends and became interested in Christianity has changed significantly over time. The information he provided in relation to this in his post hearing statutory declaration is different to the information he provided in his protection visa application forms, and different to the information he provided at the hearing.

   43.The Tribunal also notes the applicant’s oral evidence at the hearing about when he lived in a share house with people who were predominately Muslim, was different to the information in his post hearing statutory declaration.

   44. While the Tribunal accepts nerves and embarrassment can effect a person’s ability to recall detail, and the Tribunal has taken into consideration the applicant’s explanation that he did not pay sufficient attention to the information he provided in his visa application forms and the pre hearing submission, the Tribunal is not persuaded that this explains the changes in the applicant’s evidence about when he was living with people who were predominately Muslim, and when he started living with Christian friends.

   45. The Tribunal also notes the documents the applicant provided in support of his application, including the bank account statement and PAYG summary and the License and Registration Searches document, also provide different dates for his residence at Devonshire Street to the applicant’s oral [evidence].

   46. The Tribunal has taken into consideration the statutory declaration from Mr Sabato which states he moved into the Devonshire Street address in August 2010 and helped facilitate the applicant’s change in religion. The statutory declaration from Mr Frank Earney (sic), the landlord of Devonshire Street, states the applicant moved in in 2010 and states Mr Earney (sic) knows the applicant converted to Christianity. The statutory declaration from Mr Gaurav Batra details his knowledge of the applicant’s conversion.

   47.The Tribunal finds the applicant has provided significantly different and changing evidence about when he lived with Christian friends and when he started to consider conversion to Christianity. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

5. In paragraph 66 of its reasons for decision, the Tribunal accepted that the applicant had first approached Father John O’Connor in August 2013 and accepted that the applicant was baptised in December 2013.  The Tribunal also accepted in that paragraph that the applicant had attended Mass from late 2013 onwards and had been involved in a particular parish church.  However, for reasons which it gave in the preceding paragraphs of its reasons for decision, the Tribunal did not accept that the applicant was a genuine convert to Christianity. 

6. In particular, the Tribunal said at paragraphs 50 to 52 of its reasons for decision:

   50.… the applicant told the Tribunal his decision to convert did not happen over a few months, it was from the beginning and was a very slow process since the day he came until the day he got converted. He told the Tribunal he was interested in Christianity for a long time and got more interested when he began living with Christians and slowly got involved and it was never in his head he would convert until later, as things inspired and affected the way he was thinking, including the death of his brother.

   51. The Tribunal notes the differences in the dates provided by the applicant in relation to when he began living with Christians. The Tribunal also notes the applicant’s evidence that his brother died in 2008.

   52.While the Tribunal accepts a person’s interest in a different religion and conversion can grow over time and can be effected (sic) by the company of other people and personal circumstances and the environment, the Tribunal does not accept the applicant’s actions reflect his claims to have a growing interest in Christianity over a long period of time. The Tribunal notes the applicant returned to Bangladesh and continued to attend mosque and was married in an Islamic ceremony in May 2013. The Tribunal considers the applicant’s Islamic marriage in May 2013 does not support his claims to have a growing interest in Christianity over time.

7. As can be seen, the question of when the applicant began sharing a house with Christians was only one part of the Tribunal’s reasons for rejecting the applicant’s claim to be a genuine convert to Christianity.

8. Nevertheless, the applicant’s basic point was that he began to be interested in Christianity when he moved into a house in Devonshire Street, where most of his housemates were Christian. In his protection visa application form, the applicant said that he moved into the house in Devonshire Street in February 2012: CB31. He said in his oral evidence to the Tribunal that he moved into a house where most of his housemates were Christian, being the Devonshire Street house, in 2009: [35]. In a post-Tribunal hearing statutory declaration, the applicant said that he moved into the house in Devonshire Street in February to April 2010: CB215. In his oral submissions to the court, the applicant said that the Tribunal’s error was not accepting that he moved into the house in Devonshire Street before 2012: Tr. p.11, l.1-2.

9. Before this court, the applicant relied on a number of documents that he had submitted to the Tribunal.  The first was a pay as you go (“PAYG”) payment summary dated 30 June 2010, which gave the applicant’s address as the Devonshire Street address and indicated that the period of payment was 3 May 2010 to 30 June 2010: CB214.  The second was a bank statement for the period 24 January 2011 to 11 May 2011, which gave the applicant’s address as the Devonshire Street address: CB212.  The third was a message dated 17 December 2010 from Australia Post to the applicant thanking him for lodging an application to redirect mail: CB217.  The message does not indicate the addresses from which or to which mail was being redirected.  The fourth is a statement from VicRoads recording the changes of address of which the applicant had notified them.  It notes that a Creswick Street address was recorded until 9 February 2012 and the Devonshire Street address was recorded until 9 February 2012 and again until 21 April 2016: CB218.

10. The Tribunal referred to those documents in paragraph 45 of its reasons for decision, which is as follows:

    The Tribunal also notes the documents the applicant provided in support of his application, including the bank account statement and PAYG summary and the License and Registration Searches document, also provide different dates for his residence at Devonshire Street to the applicant’s oral [evidence].

11. The PAYG statement squarely assists the applicant as it clearly gives the applicant’s address in June 2010 as the Devonshire Street address.  Contrary to the Tribunal’s findings, the PAYG statement was consistent with the applicant’s oral evidence, which was to the effect that he moved into the Devonshire Street house in 2009.  The PAYG statement was also consistent with the applicant’s post-Tribunal hearing statutory declaration, which said that he moved into the Devonshire Street house in February to April 2010.  Consequently, the PAYG statement was corroborative of the applicant’s claim to have lived in the Devonshire Street house with Christians for some years prior to his baptism in December 2013.  The PAYG statement was corroborative evidence that could not be discounted on the grounds that it was inconsistent with the applicant’s oral evidence, as the Tribunal purported to do.

1. The bank statement was also corroborative of the applicant’s claim to have moved into the Devonshire Street house prior to 2012, because it indicated that he lived there in 2011.  That was not inconsistent with the applicant’s oral evidence that he moved into the Devonshire Street house in 2009.  The bank statement was also corroborative evidence that could not be discounted on the grounds that it was inconsistent with the applicant’s oral evidence, as the Tribunal purported to do.

2. The message regarding mail redirection does not assist the applicant, because it does not state the addresses from which or to which mail was being redirected.  The VicRoads document does not assist the applicant because it does not clearly indicate that he moved to the Devonshire Street house significantly before February 2012.

3. However, in addition to the PAYG statement and the bank statement, there was more substantially corroborative evidence before the Tribunal in this case, consisting of statutory declarations. 

4. The applicant provided to the Tribunal a statutory declaration from Mr Paul Sabato (CB213) who said that he moved into the house in Devonshire Street in about August 2010.  Mr Sabato said that the applicant had been living in the house for a few months.  Mr Sabato said that he and the applicant had been friends since that time.  Mr Sabato said:

   I had been noticing a certain anguish, disillusionment and confusion over his Muslim faith, [through] both observation and conversations that we had. However, he realised that Christianity is the authentic religion over Islam as he always had a strong belief in God. Being raised a Catholic myself I was able to facilitate a change of faiths with a local parish priest. I accompanied him to the local church where he had a series of teaching sessions in order to change faiths.

   I can testify that [the applicant] was not only committed, but more importantly retained that commitment throughout the following years. This was not a cavalier decision on his behalf. There were significant and potentially hazardous consequences for this life changing, life affirming and courageous move. I had several conversations regarding the difficulty of this move and the reasons why he had been thinking of changing faiths.

   As stated previously, having a belief in a higher power was important to [the applicant]. He attended church weekly, initially with me, then by himself, which has been ongoing to this current day. I saw him reading the bible and he has remained consistent with his efforts. He now volunteers with a local parish. I have no doubt questioning the sincerity of his decision. I have witnessed it, first hand for the last few years.

5. The applicant also provided to the Tribunal a statutory declaration from Mr Frank Earey, who said that he managed the Devonshire Street house and that he knew that the applicant moved in there in 2010.  Mr Earey also said that he knew that the applicant had converted to Christianity in 2013 and continued to be a devoted Christian as at 28 November 2016.

6. The applicant also provided to the Tribunal a statutory declaration from Mr Gaurav Batra, who said that he had been a friend of the applicant since 2011, was present at his baptism and knows him to have a strong devotion to Christianity.

7. The Tribunal dealt with these statutory declarations as follows:

   46. The Tribunal has taken into consideration the statutory declaration from Mr Sabato which states he moved into the Devonshire Street address in August 2010 and helped facilitate the applicant’s change in religion. The statutory declaration from Mr Frank Earney (sic), the landlord of Devonshire Street, states the applicant moved in in 2010 and states Mr Earney (sic) knows the applicant converted to Christianity. The statutory declaration from Mr Gaurav Batra details his knowledge of the applicant’s conversion.

   …

   65.While the Tribunal has taken the statutory declarations subsequently provided after the hearing into account, the Tribunal notes the statutory declaration from Mr Batra indicates his knowledge of the applicant’s religious activity is drawn from information provided by the applicant, and the statutory declaration from Mr Earey does not provide any information in relation to the applicant’s current activity or how he knows the applicant is a devoted Christian. The Tribunal considers the statutory declaration from Mr Sabato reflects the applicant’s claims to have been interested in Christianity for a number of years prior to his Baptism in December 2013, which the Tribunal does not accept, therefore the Tribunal gives this statutory declaration little weight in relation the applicant’s subsequent activities.

8. It is true that Mr Batra’s statutory declaration mentioned things that the applicant had told him about his religious activities, and may be discounted as hearsay.  However, Mr Batra’s statutory declaration also said that he often discussed religion with the applicant and believed him to hold a very strong inside about Christianity.  This is some corroboration, although relatively minor, because it is somewhat garbled.

9. It is true that Mr Earey’s statutory declaration did not refer to the applicant’s current Christian activity.  However, it did state that Mr Earey knew the applicant remained a devoted Christian three years after his conversion.  That statement does lack detail, but again constitutes corroboration to a minor degree. 

10. The more significant aspect of Mr Earey’s statutory declaration is that it stated categorically that the applicant moved into the Devonshire Street house in 2010.  The Tribunal did not deal with that aspect of Mr Earey’s statutory declaration at all.  It is third-party evidence that corroborates the applicant’s evidence, albeit variable, that he moved into the Devonshire Street house in or around 2010.  The Tribunal gave no particular reason for rejecting Mr Earey’s evidence on that point.

11. The Tribunal gave little weight to Mr Sabato’s statutory declaration, which corroborated the applicant’s claim to have been interested in Christianity for a number of years prior to his baptism in 2013, precisely because Mr Sabato’s statutory declaration corroborated a claim that the Tribunal had already rejected.

12. The Minister argued that the Tribunal could take that approach based on the decision of the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74, where Lee and Moore JJ relevantly stated:

    26.The tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”. 

    27.Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness.  Necessarily, such findings are likely to negate allegedly corroborative material: see:  S20/2002 at [49] per McHugh, Gummow JJ.  Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied.  Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the tribunal in assessing the credibility of an applicant’s claims.  However, it will not be open to the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred.  In such a circumstance the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility.  Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]-[85] per McHugh, Gummow, Hayne JJ.

13. The passage referred to in WAIJ from Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; [2003] HCA 30 is as follows:

    In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

14. In the present case, as in WAIJ, the Tribunal did not make comprehensive findings of dishonesty or untruthfulness. The Tribunal said at paragraph 33 of its reasons for decision that it found that the applicant was not a witness of truth and said at paragraph 66 of its reasons for decision that it was not satisfied that the applicant had told the truth about his interest in Christianity. However, those statements were by way of summary. In the intervening paragraphs the Tribunal did not find that the applicant had lied or been dishonest.

15. Rather, the Tribunal said at paragraph 35 of its reasons for decision that the applicant’s oral evidence was vague and confused about when he became interested in Christianity.  At paragraph 42 of its reasons for decision, the Tribunal said that the applicant’s evidence about when he had become interested in Christianity has changed significantly over time.  The Tribunal said at paragraph 44 of its reasons for decision that it was not persuaded that nerves and embarrassment explained the changes in the applicant’s evidence about when he started living with Christian people.  At paragraph 47 of its reasons for decision, the Tribunal said the changes in the applicant’s evidence about when he started living with Christian friends reflects poorly on his credibility and the reliability of his evidence.  At paragraph 52 of its reasons for decision, the Tribunal said that the applicant’s Islamic marriage in May 2013 did not support the applicant’s claims to have a growing interest in Christianity over time.  In paragraph 53 of its reasons for decision, the Tribunal said that the applicant being baptised in December 2013, only seven months after his Islamic marriage, and only four months before his skills visa expired, reflects poorly on his credibility and the reliability of his evidence.  In paragraph 63 of its reasons for decision, the Tribunal said that differences between the applicant’s oral and written claims about his ex-wife’s family and whether the people in Bangladesh knew about his conversion to Christianity reflects poorly on the applicant’s credibility and the reliability of his evidence.  At paragraph 69 of its reasons for decision, the Tribunal found that the applicant had exaggerated his interest in Christianity.

16. In my view, the findings that certain matters reflected poorly on the applicant’s credibility, and noting that the applicant’s evidence has changed over time, and was vague and confused on a particular point, and was exaggerated, falls well short of the comprehensive findings of dishonesty or untruthfulness that WAIJ held to be sufficient to discount corroborative evidence out of hand.  Saying that the applicant was not a witness of truth, without giving cogent reasons for that conclusion, does not bring this case into the territory described by WAIJ at [27].

17. In the present case, I accept that there were reasons to doubt the applicant’s credibility.  However, the particular path of reasoning followed by the Tribunal in this case was not sufficient to enable it to reject out of hand the corroborative evidence outlined above.  The Tribunal should have weighed the corroborative evidence in the balance in deciding whether the applicant’s claims were credible or not.  In failing to do so, the Tribunal fell into jurisdictional error.  Ground 1 is made out.

Ground 2

1. The second ground of review in the application is:

   The Tribunal erred in Paragraph 35 as no vagueness or confusion can be located.

2. Paragraph 35 of the Tribunal’s reasons for decision is as follows:

   The Tribunal found the applicant’s oral evidence vague and confused when questioned about when he became interested in Christianity. He mentioned his brother’s death in 2008 was a catalyst, as well as moving into a house where most of his housemates were Christian, a house in Devonshire Street, amongst other reasons. The applicant stated he moved to the new house about a year after he returned from Bangladesh in 2008 where he had been attending his brother’s funeral.

3. The applicant’s oral evidence on this issue was not discussed by the Tribunal only in paragraph 35 of its reasons for decision.  In paragraph 36 of its reasons for decision, the Tribunal noted that the applicant earlier in the hearing had said that he moved into Devonshire Street three or four years after he arrived in Australia in 2007.  That would have meant he moved into Devonshire Street in about 2010 or 2011.  The Tribunal noted in paragraphs 36 and 37 of its reasons for decision that, when confronted with the inconsistent information in his protection visa application form that he had moved into Devonshire Street in February 2012, the applicant said he was not paying attention when he completed the form.  In paragraph 38 of its reasons for decision, the Tribunal noted that the applicant’s pre-hearing written submissions stated that the applicant started living with Christian friends after he returned from Bangladesh in mid-2013, which the applicant said in oral evidence was a mistake.

4. The applicant’s oral evidence on this point does not strike me as being particularly vague or confused.  Saying that he moved into Devonshire Street about a year after returning from Bangladesh in 2008 puts the move fairly close to 2010.  Saying that he moved into Devonshire Street three or four years after arriving in Australia in 2007 puts the move in 2010 or 2011.

5. The statement in the applicant’s protection visa form that he moved to Devonshire Street in February 2012 is written evidence rather than oral evidence.  In the applicant’s oral evidence he resiled from the statement in the protection visa application form.  Similarly, the applicant resiled from the written statement in his agent’s pre-hearing written submissions.

6. While there were differences in the applicant’s oral and written evidence about when he moved to Devonshire Street, there were not significant differences in his oral evidence on this point.  The differences in his oral evidence cannot fairly be described as amounting to vagueness or confusion.

7. However, it does not seem to me that this amounts to a jurisdictional error.  It seems to me that the Tribunal simply meant that there were differences in the applicant’s oral and written evidence, which it thought detracted from his credibility.  That finding was open to the Tribunal.  That is not to say that the finding that a particular matter detracted from the applicant’s credibility amounts to a finding that the particular matter destroyed the applicant’s credibility. This ground is not made out.

Ground 3

1. The third ground of review in the application is:

   The Tribunal erred in Paragraph 36-38 in placing too much and irrelevant emphasis on the Applicant’s recollection of the date of his residential address. This was an irrelevant consideration.

2. Paragraphs 36 to 38 of the Tribunal’s reasons for decision state:

   36.The Tribunal raised its concerns that the applicant had earlier provided different oral evidence in relation to when he moved into the house in Devonshire Street. The Tribunal noted the applicant had initially told the Tribunal he had moved to that house about three or four years after he arrived in Australia in 2007. The Tribunal also raised its concerns that the applicant had provided different information in his visa application forms, noting the information provided in those forms indicates the applicant moved to Devonshire Street in February 2012.

   37. In response the applicant told the Tribunal the information in his visa application form was a mistake. The Tribunal noted the applicant had earlier told the Tribunal he completed the forms himself, and asked the applicant why he stated in his forms he moved to the Devonshire Street house in February 2012 if that was not correct. In response the applicant told the Tribunal it was a mistake and he was not paying attention to the information at the time. When questioned why the applicant would give such a specific date of February 2012 in the visa application forms, the applicant was unable to explain why he wrote that date.

   38.The Tribunal also noted the applicant’s representative’s pre hearing written submission states that after returning back from Bangladesh in mid-2013 the applicant started associating and living with Christian friends…In response the applicant told the Tribunal that was an error in the submission, and although he had been provided a copy of the submission prior to the hearing he did not find this error.

3. Discrepancies in oral and written evidence are not irrelevant considerations and can properly be relied upon by the Tribunal to doubt an applicant’s credibility. The weight to be given to particular facts is largely a matter for the Tribunal.  In the present case, the Tribunal’s failure to weigh in the balance the corroborative evidence discussed above may have led to it giving inappropriate weight to the differences in the applicant’s written and oral evidence about when he moved to Devonshire Street.  However, the jurisdictional error consists of failing to take into account the corroborative evidence, rather than failing to give the correct weight to the differences in the applicant’s written and oral evidence.  This ground is not made out.

Ground 4

1. The fourth ground of review in the application is:

   The Tribunal erred in Paragraph 42 in stating there were contradictions but not going into particulars and making a general conclusion unfounded in law.

2. Paragraph 42 of the Tribunal’s reasons for decision is as follows:

   42.The Tribunal notes the applicant’s evidence about when he started living with Christian friends and became interested in Christianity has changed significantly over time. The information he provided in relation to this in his post hearing statutory declaration is different to the information he provided in his protection visa application forms, and different to the information he provided at the hearing.

3. The Tribunal did provide particulars about the differences in the applicant’s oral and written evidence.  Those particulars are discussed above.  Paragraph 42 of the Tribunal’s reasons for decision sets out accurately, albeit in general terms, the various changes in the applicant’s evidence about when he moved to Devonshire Street.  The Tribunal’s only conclusion in paragraph 42 of its reasons for decision was that the applicant’s evidence had changed significantly over time.  That conclusion was open to it.  Whether the changes in the applicant’s evidence were adequately explained is a different question.  As it stands, ground 4 is not made out.

Ground 5

1. The fifth ground of review in the application is:

   The Tribunal erred in Paragraph 48-49 in merely raising issues but not drawing proper inferences or conclusions. The findings by the Tribunal are not supported.

2. Paragraphs 48 and 49 of the Tribunal’s reasons for decision are as follows:

   48. During the hearing the Tribunal also raised concerns about the timing of the applicant’s conversion to Christianity. At the hearing the applicant confirmed the information in the delegate’s decision record, that he had first arrived in Australia in 2007, and had continued to practice as a Muslim and had returned to Bangladesh in 2008, and in March 2013 and had attended mosque and was married in an Islamic wedding ceremony in May 2013. The Tribunal noted the applicant’s oral evidence, that about one month after his return to Australia in July 2013 he visited his first Christian Church and then undertook study with a priest and was baptised in December 2013. These dates are constituent with the letter from Fr John O’Connor.

   49. During the hearing the Tribunal noted the information in the delegate’s decision record indicated the applicant’s Skilled visa ceased in March 2014. The Tribunal raised its concerns that the applicant had been in Australia for a number of years, yet only months after he was married in a Islamic ceremony he decided to convert and was baptised into the Christian religion, four months before his Skilled visa expired.

3. In paragraphs 48 and 49 of its reasons for decision, the Tribunal was simply summarising what occurred at the Tribunal hearing.  The Tribunal was not making findings in these paragraphs.  This ground is without substance.

Ground 6

1. The sixth ground of review in the application is:

   The Tribunal erred in Paragraph 53 in stating that the applicant’s marriage and baptism shortly before his skilled visa expiring affects his credibility. There is no justification or proper basis for such a finding. The Applicant like any other non-citizen would be always on some sort of a visa which would have an expiry date. This in itself cannot be a reason to draw a negative inference.

2. Paragraph 53 of the Tribunal’s reasons for decision is as follows:

   The Tribunal also considers the applicant’s subsequent actions of attending a Christian Church and getting baptised so soon after his Islamic marriage, and only four months prior to his Skilled visa ceasing, reflects poorly on the applicant’s credibility and the reliability of his evidence.

3. In my view, it was open to the Tribunal to consider that timing issues reflected poorly on the applicant’s credibility.  That is not to say that timing issues would have been enough to reject the applicant’s claims in their entirety.  However, it was not a jurisdictional error to place some weight on such matters.  This ground is not made out.

Ground 7

1. The seventh ground of review in the application is:

   The Tribunal erred in Paragraph 61-63, 73-74 in taking into account that the Applicant’s marriage ended after a very short duration and his conversion to Christianity would be a serious shame on his ex-wife’s family in Bangladesh and they would be in a position to cause serious harm to the Applicant of such an act. This was a mandatory and relevant consideration which the Tribunal failed to turn their mind to.

2. Paragraphs 61 to 63 and 73 and 74 of the Tribunal’s reasons for decision are as follows:

   61.The Tribunal has taken the post hearing written submissions into account, that there was a miscommunication and that the applicant did not read the submission fully and merely went over it with a glance and now requests the Tribunal member disregard the statement that the applicant’s ex-wife’s family members may harm him upon his return to Bangladesh since they are extremely angry with the applicant. The applicant instructs that his ex-wife’s family members may be upset with him because he married their daughter/sister and things led to her getting a divorce from him, and therefore they may be upset with him, but he does not believe that may be extremely angry with him.

   62.As noted above, the Tribunal accepts the written submission provided to the Tribunal prior to the hearing was made on instructions from the applicant. The Tribunal does not accept miscommunication or mistakes translating instructions into a written submission explain the difference between the applicant’s oral evidence, that no one in Bangladesh knows about his conversion to Christianity, and the pre hearing submission that his wife’s family are extremely angry with the applicant and that the story of the applicant’s conversion to Christianity has already spread to the village and community, and that there is a real chance of harm, persecution, abuse and possible death in the event the applicant is to return to Bangladesh.

   63.The Tribunal considers this difference is significant and reflects poorly on the applicant’s credibility and the reliability of his evidence.

   …

   73.For completeness sake the Tribunal does not accept anyone in the applicant’s family or his ex-wife’s family or their community in Bangladesh is aware of his activities with Christianity in Australia. While the Tribunal accepts his ex-wife’s family maybe upset the marriage did not work, on the evidence before it, the Tribunal does [not] accept there is a real chance the applicant will suffer serious harm, or harm of any kind, for this reason, or for any other reason, if he returns to Bangladesh, now or in the reasonably foreseeable future.

   74.On the evidence before it, the Tribunal does not accept the applicant’s family or community will not accept him or that there will be no acceptance or respect for him or that he will be living in fear if he returns to Bangladesh, now or in the reasonably foreseeable future. The Tribunal does not accept there is a real chance the applicant will be harmed, harassed, hated or oppressed, discriminated against, criticised or persecuted, abused, beaten or killed, for any of the reasons he has claimed, or for any other reason, if he returns to Bangladesh, now or in the reasonably foreseeable future.

3. This ground is unclear.  The applicant resiled from his claim that his ex-wife’s family would harm him.  The Tribunal accepted that position.  However, the Tribunal considered that the change in the applicant’s case reflected poorly on his credibility.  Again, that conclusion was open to the Tribunal, although, again, that is not to say that such an issue would have been sufficient to reject the applicant’s claims overall.

Ground 8

1. The eighth ground of review in the application is:

   The Tribunal failed to accord weight and also failed to specify why it did not believe the sworn statement evidence of Father John O’Connor and Mr Sabato. There was no contradictory evidence against these persons.

2. Father O’Connor wrote a letter addressed to whom it may concern (CB255), rather than giving sworn evidence to the Tribunal.  Father O’Connor’s name also appears on a baptism certificate in respect of the applicant (CB44) and a certificate of confirmation in respect of the applicant (CB45). The Tribunal accepted Father O’Connor’s statements about the baptism, confirmation and attendance at a different parish church.  The Tribunal did not mention Father O’Connor’s statement in his letter, at CB255, that:

   Considering the ramifications for [the applicant] in converting from Islam to Christianity, as well as his ongoing commitment to the faith, I sincerely believe that [the applicant] becoming a Christian [was] a genuine response to God’s call. 

3. It was a matter for the Tribunal to weigh the ramifications for the applicant in converting from Islam to Christianity.  Father O’Connor’s reference to the ramifications was not evidence as such.

4. Father O’Connor’s statement about the applicant’s ongoing commitment to the faith, was undermined by Father O’Connor’s own evidence that the applicant had left Father O’Connor’s parish after he was confirmed and moved to a new parish.  As such, it was not apparent how Father O’Connor could give evidence from his own personal knowledge of the applicant’s ongoing commitment to the faith.  Consequently, the Tribunal’s apparent failure to take this aspect of the letter into account does not constitute jurisdictional error.

5. Given that the only reasons given by Father O’Connor for believing that the applicant’s conversion was genuine were the ramifications of the conversion and the applicant’s alleged ongoing commitment, it was not necessary for the Tribunal to give any weight to Father O’Connor’s professed belief that the applicant’s conversion was genuine.

6. However, for the reasons given above, the Tribunal’s failure to weigh in the balance the corroborative evidence of Mr Sabato, did constitute a jurisdictional error.  Ground 8 is made out.

Ground 9

1. The ninth ground of review in the application is:

   The Tribunal displayed bias overall.

2. It is well-established that an allegation of bias must be clearly proven: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17.  The applicant did not give any particulars of his allegation of bias.  It is not apparent whether he alleged actual bias or apprehended bias.  In all the circumstances of this case, I am not persuaded that the allegation of bias is substantiated.  This ground is not made out.

Conclusion

1. As two of the applicant’s grounds have been successful, and as there was no suggestion of any discretionary reasons to not remit this matter to the Tribunal, the decision will be set aside.  As the applicant was not represented, I will hear the parties on the question of costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 24 September 2018