CLQ16 v Minister for Immigration

[2018] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1722

Catchwords:
MIGRATION – Application for judicial review – protection visa –where Tribunal does not accept positive findings of the delegate – where applicant not on notice of issues before Tribunal until after he had given evidence – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.91R(3), 425

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
BMV16 v Minister for Home Affairs [2018] FCAFC 90
SZQPY v Minister for Immigration and Border Protection[2013] FCA 1133

Applicant: CLQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1894 of 2016

Judgment of: Judge Riethmuller

Hearing date: 6 February 2018

Date of Last Submission: 6 February 2018

Delivered at: Melbourne

Delivered on: 29 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Erskine Rodan & Associates

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 5 August 2016 (Case Number 1414547).

2. A writ of mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $7,328.00, together with the costs of obtaining the transcript of the Tribunal hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1894 of 2016

CLQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of India who arrived in Australia on a student visa in July 2009.  That student visa was cancelled in August 2010 following which the applicant sought a merits review and then judicial review of the cancellation decision.  The student visa challenges ultimately concluded in July 2012.

3. The applicant applied for the protection visa on 20 September 2012.  A delegate of the Minister refused the application on 24 December 2012.  The Tribunal affirmed the decision of the delegate on 19 December 2013.  The applicant applied for judicial review and the decision was quashed on 19 August 2014 (by consent orders made in this Court). 

4. The applicant appeared before a differently constituted Tribunal on

   
   

   13 March 2015 to give evidence and present arguments. The applicant was represented by a registered migration agent and assisted by an interpreter.  As the member was unable to finalise the decision prior to her appointment ceasing, a reconstituted Tribunal with a different member was formed.  The applicant again appeared before the Tribunal to present arguments and give evidence on 27 May 2016.  On 5 August 2016 the Tribunal again affirmed the decision of the delegate.

The Applicant’s Claims

1. The applicant’s claims largely relate to his conversion to the Jehovah’s Witness faith whilst in Australia, and harm he may face in India if he returns.  The delegate accepted that the applicant had a genuine fear of harm in India based upon his conversion to the Jehovah’s Witness faith, accepting that his family and community may persecute him as result of his apostasy, and that he would not be afforded effective state protection.  However, the delegate concluded that the applicant would be able to relocate within India: see delegate’s decision, Court Book pp.229 to 240.

2. After reviewing the evidence, the Tribunal member was not satisfied that the applicant’s conversion to the Jehovah’s Witness faith was genuine (see [119] as quoted below). The Tribunal said, that it therefore disregarded this evidence under s.91R(3) of the Migration Act 1958 (“the Act”).  That section (at the relevant time) provided:

   (3)  For the purposes of the application of this Act and the regulations to a particular person:

   (a)    in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

3. The Tribunal concluded that:

   119.  The tribunal has had regard to the evidence of Mr [S] including his evidence regarding what he describes as the applicant’s ‘transformation’ and his ‘outstanding’ level of activities. However, Mr [S]’s oral and written evidence does not overcome the significant concerns held by the tribunal regarding the applicant’s general credibility and motivations for converting to the Jehovah’s Witness faith, detailed above. The tribunal does not accept that the applicant’s professed belief in and conversion to the Jehovah’s Witness faith is genuine. The tribunal is not satisfied that the applicant converted to the Jehovah’s Witness faith, engaged in Kingdom Hall attendance and other Jehovah’s Witness-related activities including Bible study and door knocking or sent a letter to his village mosque otherwise than for the purpose of strengthening his claim to be a refugee. Accordingly, as required by s.91R(3), the tribunal has disregarded this conduct in considering the applicant’s protection claims.

   120.  Given the credibility concerns set out above, the tribunal does not accept that the applicant’s family or members of his community are strict or orthodox Muslims that follow an extremist version of Islam who have been taught that a worshipper who leaves the Islamic faith can be killed. Given its concerns, the tribunal does not accept that the applicant’s family are angry or upset at him or have limited their contact with him as a result of him having told them about his conversion nor does the tribunal accept that the applicant tries to speak to his family including his mother about the Jehovah’s Witness faith. Given its credibility concerns, the tribunal does not accept that the village imam has spoken to the applicant’s family or advised them to keep quiet about the conversion. The tribunal further does not accept that any rumours or word of mouth has spread about the applicant’s conversion. The tribunal does not accept on the evidence before it that the applicant has renounced his Muslim faith.

4. These conclusions are supported by extensive findings against the applicant with respect to credibility.  The specific findings are well summarised in the outline of counsel for the Minister as follows:

   14. At [91], the Tribunal identified that it had ‘significant concerns about the [Applicant’s] general credibility, including his motivations for his religious conversion, his evidence about his family’s reaction to his conversion and ongoing contact and his decision to inform his community about his conversion’, and at [92], the Tribunal observed that the Applicant’s evidence ‘as a whole ... tended towards generalisations and sweeping statements’, citing two examples, which led the Tribunal to ‘question his credibility’.

   15. Under the heading ‘Concerns regarding evidence about conversion and religious activities’, the Tribunal relevantly found:

   15.1. The Applicant’s ‘rather careless’ evidence concerning the different times as to when he intended to be baptised, and when he was actually baptised, gave the Tribunal concerns about the reliability of his evidence (at [93]).

   15.2. The Applicant’s ‘careless’ and ‘somewhat troubling’ evidence as to which days of the week he usually attended Kingdom Hall meetings led the Tribunal to have further concerns about his credibility and the reliability of his evidence holistically (at [94]).

   15.3. The Applicant had given inconsistent and incorrect evidence as to when he had commenced certain religious activities (namely Bible studies). Having regard to the Tribunal’s concerns about the credibility of his evidence generally (including his evidence about when he intended to be baptised), the Tribunal considered the Applicant’s evidence that he had commenced Bible studies in 2009 (and not 2012 as earlier claimed) was an attempt to ‘strengthen his religious profile’ (at [95]).

   15.4. The Tribunal considered the Applicant’s evidence about his faith to be ‘fairly generalised’, but that this was not determinative of whether or not he genuinely had decided to convert to become a Jehovah’s Witness (at [96]).

   15.5. Having regard to the consequences the Applicant claimed he (and his family) would face from his conversion, as well as the significance of the decision to so convert, the Tribunal found it ‘difficult to accept’ that he had converted simply because of the influence of the [S] family, and that his motivations regarding his conversion were ‘vague, generalised and of concern’ (at [97]). In this regard, the Tribunal’s concern was compounded by the suspect timing of the Applicant’s interest in the Jehovah’s Witness faith (and application for the Protection Visa) occurring only after the unsuccessful Student Visa challenge in 2012 (at [98]). The Tribunal also considered there to be an inconsistency as between the evidence of the Applicant and Mr [S] as to whether the Applicant was independently motivated to convert, or was so inspired by the [S] family to convert (at [99]).

   16.    Under the heading ‘Concerns regarding evidence about family’, the Tribunal found:

   16.1. Generally concerning his family, the Tribunal considered the Applicant’s evidence to be vague and lacking in detail (at [100]).

   16.2. Having regard to evidence given by the Applicant concerning his significant fear of harm because of informing his family and friends about his conversion, the Tribunal found it suspect that the Applicant informed his family, and the local mosque by letter, after the delegate’s decision (at [101]). The Tribunal also found the Applicant’s evidence given to the delegate inconsistent with the evidence given to the Tribunal about the nature of his relationship with his family (at [102]). Further, the Applicant’s evidence as to the timing of when he informed his family about his conversion appeared ‘inconsistent and therefore unreliable’ (at [103]).

   16.3. On the basis of the inconsistent presentation of the Applicant’s evidence about engagement with his family following his conversion, the Tribunal considered that the Applicant’s fear of harm arising from his family, and any strain in his relationship with family members, did not arise as claimed (at [104] - [106]).

   17.    Under the heading ‘Concerns regarding letter to mosque’, the Tribunal found:

   17.1. The Tribunal had significant concerns regarding the Applicant’s motivation in sending a letter to the local mosque, in part because of its timing (coming after the delegate’s decision) and because of the nature of his claimed fear of harm from revealing his conversion (at [107]). The Tribunal did not accept that the Applicant was motivated to send the letter because of any requirement or encouragement to do so as a Jehovah’s Witness (at [108]).

   17.2. The Tribunal rejected as unsatisfactory the Applicant’s explanations for sending the letter in English, rather than Malayalam. The Tribunal found that the Applicant’s decision to send the letter in English, as well as by using registered post, were strongly indicative of a purpose to strengthen his protection claims, rather than as the Applicant claimed to inform the local imam, and to encourage others to potentially convert from Islam to Christianity. The Tribunal also found the Applicant’s evidence about why he wanted the Imam to know he had converted to be ‘generalised’ (at [109]).

   17.3. Having regard to the ‘rather convoluted’ terms of the letter, and the Applicant’s ‘rather baffling’ evidence as to why he did not more simply state that he converted given what was at stake for him, the Tribunal was further concerned about the Applicant’s general credibility and motivations (at [110]).

   18.    Under the heading ‘Changes in and vague evidence regarding actors of harm’, the Tribunal found:

   18.1. The Applicant’s evidence as to from whom he specifically feared harm in India to be ‘vague, generalised and shifting’, and this again diminished his credibility generally (at [111]).

   18.2. The Tribunal evaluated the Applicant’s ‘conflicting’ evidence about the fear he would face from his family from having converted undermined his claim in this regard (at [112], cf [100] to [106]).

   18.3. The Tribunal considered evidence presented by Mr [S] and by the Applicant concerning the actions of the local imam following his learning of the Applicant’s conversion (on Mr [S]’s evidence, a harmful role, and on the Applicant’s evidence, a helpful role) to be ‘significantly inconsistent’ (at [113]).

   18.4. The Applicant’s evidence about what harm might befall his family was ‘vague’, and appeared upon the Tribunal’s views to answers given by the Applicant at hearing, more limited to discrete concerns for his sister — the Tribunal considered this to be inconsistent with broader concerns for his family as claimed and therefore undermining his general credibility (at [114]).

   18.5. The Applicant’s evidence about who other than his immediate family know about his conversion was ‘vague and confusing’ and ‘generalised’ (at [115]).

   18.6. The Tribunal considered the Applicant’s general claim to fear harm from a number of different religious adherents were ‘vague and sweeping assertions’ and the Applicant had not ‘seriously considered’ how he would be able to practice his faith upon return to India, The Tribunal also rejected the Applicant’s evidence about certain contact he had made with the Jehovah’s Witnesses in India as ‘vague and lacking in detail’ (at [116]).

Grounds of Application

1. The applicant, in his amended grounds of application, relied upon two grounds, numbered 2 and 3.

Ground 2.

1. Ground 2 of the amended application was framed as:

   2. The Tribunal fell into jurisdictional error in that it did not afford the Applicant procedural fairness.

   Particulars

   (a)    The Tribunal did not give the Applicant an opportunity to understand, and thereby to give evidence and present arguments about, the following issues on the review, namely:

   (i)      The date of his baptism; (Decision record [93], Court Book (“CB”) 483);

   (ii)    The days of the week on which he attended meetings; (Decision record [94], CB 483)

   (iii)   The motivation for his conversion from Islam to the faith of the Jehovah’s Witnesses; (Decision record [97], CB 484; [117]-[119], CB 487-488)

   (iv)    When he told his family about his conversion; (Decision record [101], [103], CB 484-485)

   (b) By reason of the matters set out in particular (a), the Tribunal was in breach of its obligations under section 425 of the Migration Act 1958.

2. There is no doubt that the Tribunal must determine the issues afresh, and is not bound by any finding of fact by the delegate or a previous Tribunal whose decision is quashed by the court.  However, if a hearing is conducted on the basis of an assumption that the findings in favour of an applicant by the delegate are no longer in dispute, this may result in error.  That is, if a hearing is conducted upon the basis that favourable findings by the delegate are not being reconsidered by the Tribunal, an applicant may not address those issues before the Tribunal (in keeping with a general obligation to focus upon the real issues in a hearing).

3. The substance of the ground, as argued, is that the Tribunal did not put the applicant on notice that the genuineness of his conversion (and reasons for conversion) were in issue, in circumstances where the delegate and previous Tribunal had accepted this part of his claims.  In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the High Court explained that:

   35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.” That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. (emphasis added)

4. Counsel argued that the Tribunal member was obliged to specifically put to the applicant that his religious conversion was not genuine. I do not accept that the Tribunal had to specifically put such a proposition to the applicant, primarily because the Tribunal member may not have formed a clear view at that point of the hearing: a Tribunal member is not a contradictor. Rather, the Tribunal was obliged to ensure that the applicant was on notice as to the relevant issues. There is no specific form of words that must be used – a consideration of the hearing as a whole is required. Ultimately the question is framed by s.425 of the Act, which requires the Tribunal to provide an applicant with a real opportunity ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’.

5. In this case, the Tribunal member had not specifically stated at the commencement of the hearing that favourable findings by the delegate or a previous Tribunal member may not be accepted.  Nor did the member state that such findings were in issue.  Thus, whilst the Tribunal was considering the matter afresh, in light of SZBEL, the reasons for refusal by the delegate framed the issues until the member stated otherwise.  This principle meets not only the pragmatic requirements for procedural fairness, but it also makes hearings more efficient as the parties can focus upon the real issues rather than traversing matters that are not in dispute.

6. Although the member had not stated at the start of the hearing that the genuineness of the applicant’s conversion was at issue. During the hearing the member questioned the applicant about his reasons for converting, for example asking at p.75 of the hearing transcript:

   MEMBER: I just want to … go back to why you decided to convert ... What was it that motivated you to do that? What in particular … I’d just like to hear it from your perspective because it is a very personal and a very serious and important decision to make.

1. Thereafter the member asked many detailed questions about the applicant’s claim to have converted.  These exchanges indicated that his evidence about conversion was relevant in the case.  In retrospect, reading the transcript, it becomes apparent that the member did not consider that the case was limited to the issue of relocation within India.

2. At p.84 (and following) of the hearing transcript there are a number of exchanges between the applicant’s advisor and the member, which appear terse, if not a little heated.  The issue is apparent: the applicant’s advisor was concerned that the member had, late in the hearing process, expressed reservations about the applicant’s evidence and made clear that she was not bound by the fact findings of the delegate or previous member.  It is apparent from reading those exchanges that the advisor realised that the member was considering those issues afresh.  It is apparent that the advisor had not approached the hearing on this basis, no doubt in reliance on the principle from SZBEL referred to above.

3. The exchange clearly placed the advisor on notice that the favourable findings of the delegate and previous Tribunal were in issue in the current hearing.  Whilst the member, quite properly, refrained from forming a concluded view at that point, the member clearly expressed that she had reservations.  The difficulty confronted by the applicant and his advisor is that this exchange occurred at the end of the hearing, after he had given evidence and presented his case. 

4. Counsel for the applicant also developed an argument that the nature of the exchanges through the hearing resulted in the impression that the favourable findings of the delegate were not in issue and that a failure to identify the significance of the evidence on the topics particularised, resulted in a failure to provide an appropriate hearing to the applicant.

5. Counsel for the applicant argued that:

   24. While the topics of the date of the Applicant’s baptism (CB 33-34; Transcript 24-25), the days of the week of meetings (CB 14-15; Transcript 5-6), and when he told his family (CB 25-26; Transcript 16-17) were canvassed at the hearing, they were topics about which the Tribunal asked or the Applicant volunteered evidence without it being made apparent that these could affect his general credibility and the ultimate decision. There was no doubt that the Applicant was baptised on the date he said, as it was confirmed by the witness, an elder and the person responsible for the Applicant’s conversion. Similarly, there was no doubt that the Applicant had attended meetings at the Kingdom Hall.

6. The evidence concerning the date of the applicant’s baptism did not lead the Tribunal to find that the date given was wrong, but the nature of the evidence was important to the Tribunal in assessing the genuineness of the applicant’s conversion.  At the hearing the applicant was vague about the sequence of when he was baptised, when he told his parents and when he said he wrote to his mosque to tell the Imam of his conversion: see transcript T24-25.  The Tribunal member explained in the reasons for decision that it was the way the evidence was given on this topic that was of concern, saying:

   93. The applicant has stated several times throughout his protection process that he was to be imminently baptised. In his original statement to the department (dated September 2012), he expected to be baptised in two to three months’ time. As at the time of the departmental interview in December 2012 (according to the delegate’s decision provided to the tribunal) he had not yet done so. In a statement dated November 2013, he referred to intending to be baptised in January 2014 and (in his hearing before the first tribunal) referred to feeling already baptised ‘in his mind’. In his hearing before the second tribunal (in March 2015) he referred to having been baptised nine months ago (ie around June/July 2014). It appears, from Mr [S]’s evidence, that the applicant was actually baptised in February 2014. The tribunal accepts that this is the case and has taken into account Mr [S]’s evidence that the conversion process procedure is a process (including the applicant becoming an ‘unbaptised publisher and changing certain habits). However, it is not the length of time the applicant has taken to become baptised that is of concern. Rather, it is the applicant’s rather careless evidence at various times about his baptism date that has given rise to concerns about the reliability of his evidence and his general credibility. (emphasis added)

7. The evidence about when the applicant commenced attending Kingdom Hall was also significant on the issue of credit.  At the hearing before the Tribunal member the relevant date was said to be 2012, which was accepted by the Tribunal.  However, the applicant had previously said he started attending the Hall in 2009.  The member said, during the hearing:

   MEMBER. Because being - not remembering dates and you seem to be a bit hazy about a lot of dates that we’ve talked about about when things happened, 2009 and 2012 is a big difference of dates. So I’m just not sure if I would accept that you just forgot.

8. The Tribunal canvased the applicant’s motivations for converting at some length in the hearing (see T26 to T32).  In particular the member raised concerns about a letter the applicant said he had sent to the Imam advising of his conversion (which, remarkably, was in English rather than the local language), at one point asking ‘Did you write it in English because you thought it might help your case in Australia, your protection claims?’: see T31.27.

9. Counsel for the applicant argued that the topic of the letter was all that the member did to identify concerns as to the genuineness of conversion, however, as counsel for the Minister identifies the member went further:

   27.3.2. The Tribunal variously engag[ed] with the Applicant about his history of involvement in various religious activities: at [73] — [76] (cf Transcript of hearing on 27 May 2016 at p 12 (CB 21), line 37 to p 16 (CB 25), line 35; p 32 (CB 41), line 14 to p 34 (CB 43), line 25; p 82 (CB 91), line 10 to p 83 (CB 92), line 32).

   27.3.3. The Tribunal also questioned Mr [S] about his impressions about how the Applicant’s faith had developed: at [86] (Transcript of hearing on 27 May 2016, p 69 (CB 78), lines 4 - 43).

10. It was accepted that the member canvassed with the applicant the issue of when he told his family of his conversion, but it was argued this was done in a way that did not adequately identify that the matters were relevant to credit.  The discussions were lengthy, and are well summarised by counsel for the Minister who submitted:

    27.4. Engagement with his family about his conversion: the Applicant was given sufficient opportunity to outline how he informed his family about his conversion, what concerns his family had, and what concerns he had about his family as a result of having informed them: see [38] - [44] (cf Transcript of hearing on 27 May 2016 p 8 (CB 17), line 31 to p 11 (CB 20), line 42; p 16 (CB 25), line 37 to p 24 (CB 33), (line 27)). The Tribunal also sought to raise potential inconsistencies with the Applicant about his evidence: at [66], [76], and [78] (cf Transcript of hearing on 27 May 2016, p41 (CB 50) line 8 - 18; p49 (CB 58) lines 1 - 44).

11. It was also argued that the member did not put to the witness Mr S, an Elder of the Church, that the applicant’s conversion may not be genuine.  When considering this issue it must be remembered that the applicant’s conversion is entirely a matter within the applicant’s own knowledge.  Whilst church elders can give evidence of an applicant’s behaviour and engagement with the church, they can never say definitively what the inner thoughts or motivations are for a particular person.  This is not to say that their evidence is not helpful nor important in a case such as this – outward signs of religious convictions are usually important evidence.  In this case the member discussed what the Elder had observed of the applicant for some time, commencing with the question (at p.69 of the transcript) “Are you able to talk about your impressions about how you’ve seen [the applicant’s] I suppose faith grow or flourish - - -”. 

12. I am not persuaded that the member had to specifically put to the Elder that the applicant’s conversion may not have been genuine.  That was a question for the Tribunal – what the Elder could give evidence of was the applicant’s conduct and Mr S was asked to give such evidence.

13. When one steps back and looks at the transcript and decision as a whole it is apparent that the member engaged in a broad ranging review of the facts and issues in the hearing.  It is also clear from the transcript that the applicant’s solicitor only realised that the member was reconsidering the matters accepted by the delegate at the end of the hearing (from the exchange with the applicant’s representative at the end) that the applicant’s credit was in issue and that the member was not accepting the favourable findings of the delegate. 

14. One can well understand that the solicitor for the applicant would have a sense of being ambushed given that he went to present the applicant’s case on relocation but discovered only after the evidence had been taken that genuineness of conversion was an issue.  Even an adjournment presents difficulties in this situation as there has been evidence given in circumstances where there was no preparation on the particular issue.  A feature of this particular case is the credibility finding as a result of vagueness of the applicant on matters that neither he nor his solicitor knew would be issues until the end of the hearing. The question is not simply whether the applicant has had a hearing, but whether the applicant has had an opportunity ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’ at the time of evidence being given. 

15. Whilst it is tempting to use the analogy of a trial running and the pleadings being amended at the end, as the Full Court explained in BMV16 v Minister for Home Affairs [2018] FCAFC 90 that the “review was one being conducted in furtherance of Australia’s treaty obligations and as a genuine … review of the delegate’s decision in a manner which was, amongst other things, free of bias”: see [101]. Whilst BMV16 concerned a different administrative review provision under the legislation, the underlying principles remain grounded in the treaty obligations. If the applicant was on notice of the issue he “might have responded quite differently if he had been given a real opportunity to consider what was being put to him”: see [102].

16. This is clearly a case that turns on its own unusual facts. Ultimately I am persuaded that the applicant did not receive a real opportunity to be heard in the sense required by s.425 of the Act. I therefore find that the applicant has made out this ground of review.

Ground 3

1. The second ground argued by the applicant (numbered ground 3 in the amended application) is framed as:

   3. The Tribunal fell into jurisdictional error in that it acted unreasonably or without logically probative evidence.

   Particulars

   (a)     The Tribunal said,

   “The tribunal found the applicant’s evidence as a whole has tended towards generalisations and sweeping statements..... such sweeping and highly questionable generalisations lead the tribunal to question his credibility.” (Decision record [92], CB 482)

   This was not supported by the evidence and was not a reasonable finding.

   (b)     The Tribunal said,

   “Given the significance of his decision [to convert], the tribunal finds the applicant’s evidence regarding his motivations to be vague, generalised and of concern.” (Decision record [97], CB 484)

   This was not supported by the evidence and was not a reasonable finding. 

   (c)     The Tribunal said,

   “The combination of the above enumerated concerns leads the Tribunal to find that the applicant has not been truthful in his evidence concerning the reasons for his conversion to the Jehovah’s Witness faith and the reaction of his family and community to his alleged conversion.” (Decision record [117], CB 487)

   This finding was not reasonably supported by the evidence to which the Tribunal referred.

   (d)     The Tribunal said,

   “The tribunal has no reason to doubt (the witness’s] evidence regarding the applicant’s religious activities .... However, due to the concerns in significant aspects of the evidence before it as discussed above, the tribunal doubts his religious beliefs and alleged motivations to convert and to undertake these Jehovah’s Witness religious activities.” (Decision record [118], CB 487-488)

   The Tribunal, however, gave the applicant no opportunity to know or to respond to the critical issue that “the tribunal doubts his religious beliefs and alleged motivations to convert and to undertake these Jehovah’s Witness religious activities.”

   (e)     The Tribunal said,

   “The tribunal does not accept that the applicant’s professed belief in and conversion to the Jehovah’s Witness faith is genuine. The tribunal is not satisfied that the applicant converted to the Jehovah’s Witness faith ... otherwise than for the purpose of strengthening his claim to be a refugee. Accordingly, as required by s.91R(3), the tribunal has disregarded this conduct in considering the applicant’s protection claims.” (Decision record [119], CB 488)

   This finding of the Tribunal that the applicant converted to the Jehovah’s Witness faith ...  “Otherwise than for the purpose of strengthening his claim to be a refugee” was not reasonably supported by the evidence to which the Tribunal referred.

2. Little detail was placed around these submissions.  Counsel for the Minister submitted that this ground was no more than ‘emphatic disagreement’ with the determination of the Tribunal on the merits.  This is a ground that is difficult to sustain as it appears to be seeking merits review.  It is perhaps more telling from the perspective that it reflects the sense of grievance with the outcome borne of the applicant’s experience of only discovering that the genuineness of his conversion was at issue at the end of his hearing.

3. In substance the claim of the applicant is that it was legally unreasonable for the Tribunal to conclude his evidence was vague, generalised or sweeping, and then reject his evidence as not credible.  Having rejected his claims, the findings particularised in paragraphs (c) to (e) of this ground effectively flow from the findings rejecting his credibility. 

4. The findings identified in particulars (a) and (b) were not bare conclusions unsupported by explanation or analysis.  This is apparent form the extensive analysis undertaken by the Tribunal member, as recounted in the reasons for the decision.  In this respect, the references given by Counsel for the Minister set out the various passages and transcript references, demonstrate that it was not only open to the member to make these findings, but also that the member carefully analysed the evidence in this regard.

5. During the course of argument a further argument that emerged was a claim that if the decision maker intends to rely upon s.91R(3) it must give specific notice to the applicant. Applying SZBEL to circumstances where relocation to avoid harm is being considered, but has not been raised with the applicant as an issue, Kenny J, in SZQPY v Minister for Immigration and Border Protection[2013] FCA 1133, concluded that such circumstances would ground a finding of error on the part of the review. Her Honour said:

   75. Plainly enough, the delegate did not address the issue whether “relocation” was reasonable in making the primary decision. The answer to the first question is therefore ‘no’. In consequence, if the Tribunal were to decide the appellant’s visa application by reference to relocation, then it had first to comply with its obligation under s 425 of the Migration Act. This meant that it had first to provide the appellant with a sufficient opportunity to give evidence and present arguments relating to relocation, including the reasonableness of relocation. Absent an independent basis for its decision affirming the delegate’s decision, a failure on the Tribunal’s part to do so would amount to jurisdictional error.

6. Whether or not s.91R(3) precludes the grant of a protection visa raises a specific issue that may need to be addressed separately by an applicant. This issue had not been raised by the delegate: the delegate accepted that the applicant faced a real risk of serious harm, but rejected the claim on the basis that he could relocate within India. The applicant was entitled to assume that relocation was the key issue at commencement of the hearing before the Tribunal. However, as is apparent from the above discussions, there was extensive consideration of the applicant’s claims of conversion, and a terse exchange between the member and the applicant’s solicitor at the end of the oral hearing highlighting the member’s concerns.

7. Ultimately this is not a case where the conclusions, based upon the actual material before the member, could be said to be illogical or legally unreasonable, rather a case where the hearing process was imperfect (as discussed in ground 1) leading to a situation where the applicant may not have presented his case on the key issue very well as he did not realise that was an issue until after his evidence was given. 

8. I therefore find that the applicant has not established a ground for judicial review on this ground, rather on ground 1

9. I therefore make orders accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 29 June 2018