CPK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1100
•24 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CPK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1100
File number(s): SYG 1637 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the finding of the Tribunal was infected by jurisdictional error – apprehended bias – whether there was a logical, probative and evidentiary basis for the decision of the Tribunal – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 420, 422B, 430 Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Ministerfor Immigration and Citizenship v SZQHH [2012] FCAFC 45
Maxwell v Minister for Immigration and Border Protection [2016] FCA 47
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Muin v Refugee Review Tribunal; and Lie v Refugee Review Tribunal (2002) 76 ALJR 966
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347
Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379
SZFWB v Minister for Immigration and Citizenship [2007] FCA 167
Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 74 ALJR 405
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Number of paragraphs: 63 Date of last submission/s: 29 April 2021 Date of hearing: 29 April 2021 Place: Parramatta Solicitor for the Applicant: Mr Arch Counsel for the Respondents: Ms Hooper ORDERS
SYG 1637 of 2019 BETWEEN: CPK19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
24 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $7467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Iran. The applicant arrived in Australia in late 2014 as the holder of a student visa. On 20 July 2015, the applicant applied for a protection visa. On 19 July 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 3 June 2019, the Tribunal affirmed the decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the relevant law and mandatory considerations at paragraphs 9 to 13 of its decision, the Tribunal outlined the applicant’s claims in his protection visa application. This included the applicant being born into a strict Muslim family and also having to follow religious observances at school. The applicant claimed that he hated pretending to be Muslim and his disgust towards the religion worsened.
At university, it was recommended that the applicant study in a new environment, so he chose Malaysia as a developing country, with a suitable level of liberty and lower living costs comparatively to elsewhere. The applicant moved to Kuala Lumpur in 2010 and claimed that he established a friendship with a Christian student AL. The applicant was invited by AL to go to church and found a serenity he had never felt before.
The applicant claims that he began to research and study Christianity and enthusiastically follow it. The applicant did not tell his family. The applicant sought a majority Christian country to undertake his study after he finished his studies in Malaysia and applied for positions in Australian universities. The applicant returned to Iran for a short time in March 2014. During this time, the applicant claims that he was forced into an arranged marriage with the daughter of an extremist Muslim. The applicant got his student visa and left, which caused his parents to be angry with him.
The applicant came to Australia in November 2014. The applicant attended a church full of Iranians which he really enjoyed. The applicant revealed his Christianity to his parents in a telephone call. The applicant’s parents were angry and his father said he would stop supporting him financially. The applicant was baptised on 21 June 2015 at the Liberty Baptist Church.
The applicant claimed that if he returned to Iran, he could not practice his new faith and that he could not share the word of God. The applicant also claimed that because he had converted to Christianity, he would be in danger.
Paragraphs 14 through to 50 of the Tribunal’s decision deal with the applicant’s clams and evidence at the Tribunal hearing. At paragraph 14 of its decision, the Tribunal noted that the applicant claimed that if he returned to Iran, he would be detained because he had converted to Christianity and would be obliged to proselytise.
At paragraph 16 of its decision, the Tribunal noted that the applicant stated that he was unable to produce any evidence as to his treatment by a psychiatrist for a period of about a month until just before he left Iran. The applicant stated that he only saw a medical practitioner in Malaysia for about two months. In relation to his choice of Malaysia to study, it was put to the applicant that it was a majority Muslim country that discriminated against non-Muslims. The applicant was asked about non-Muslim universities in a cheaper country such as Armenia, Georgia or Eastern Europe. The applicant claimed that entering Malaysia was easier and he wanted to use it as a bridge to another country.
In Malaysia, the applicant stated that he formed a friendship with AL over the three years that they were doing assignments and projects together. The applicant claimed that he had lost contact with AL and did not have his phone number and that AL was not on Facebook.
It was put to the applicant that if AL was very sociable and spoke English, it was strange that he would not have an English-language social media account to keep in touch. The applicant stated that he had no other means of keeping in contact with AL such as a private email address.
At paragraph 24 of its decision, the Tribunal noted that AL introduced the applicant to the KLBC Church in Kuala Lumpur. Once the applicant had agreed to attend the church, he liked the environment and the people in the church invited him to return. The applicant became interested in Christianity and the community as a result. The applicant left Malaysia in 2014. The applicant agreed that he had been involved with Christianity for about three years in Malaysia. The applicant stated that he did not attend any Bible studies or formal Christian education in the three years that he went to the church. The applicant claimed that he was careful as there were people attached to the Iranian Embassy who could report back on activities of Iranians in Malaysia. The applicant was asked if he had any photographic evidence of attending church in Malaysia. The applicant claimed that he did not as he was trying to keep a low profile and never thought he would need proof.
At paragraph 32 of the Tribunal’s decision, it was put to the applicant that emails he had sent to the church in Malaysia in response to request for information from the Tribunal appeared to indicate that they did not know him. At paragraph 33 of its decision, the Tribunal noted that the lack of detail given by the applicant and the lack of response from the church raised concerns in the Tribunal’s mind as to whether not his account was true.
The applicant arrived in Australia in November 2014. The applicant stated that he had no problems during the eight months in Iran prior to his arrival as he never mentioned his interest in Christianity. Once in Australia, the applicant searched for a Persian church and went to a church in Parramatta for two or three months. The applicant was told about a church at North Rocks that was bigger and had more Iranians in the congregation. The applicant stated that he completed around one and a half terms in a Masters of Marketing, but stopped attending university when his family stopped providing him with financial support. The applicant stopped studying around the time he applied for a protection visa. It was noted by the Tribunal that the application for a protection visa was signed five days before he was baptised.
The applicant stated that as soon as he entered the church at North Rocks he asked to be baptised. The applicant did not go to that church anymore because he lived in Granville and North Rocks was too far away. The applicant stated that he now goes to a St John’s Church in Granville and has done so from around May 2016. It was put to the applicant that the Pastor at the Liberty Baptist Church had previously told the Tribunal that he had baptised over 900 Iranians and had only ever refused one. At paragraph 44 the Tribunal said the following:
The Tribunal had a concern that this church (Liberty Baptist Church) was well-known as a place that would baptise Iranians without much effort, whereas St John’s was known as somewhere where the Anglican minister required more evidence of a commitment to Christianity before he baptised someone. The proximity between his protection visa application in his baptism raised concerns that he was selective and targeted in choosing a church that would baptise him with a few questions and quickly in order to support his protection claim.
At paragraph 46 of its decision, the Tribunal put to the applicant that it was difficult to measure what people truly felt, and that there was no evidence of anyone known as AL who he claimed introduced him into Christianity. The Tribunal put its concern that the applicant intended to go to Malaysia in order to get to Australia and migrate here. The Tribunal was concerned the applicant’s attendances at churches in Australia and his baptism were done solely to achieve a favourable migration outcome rather than any genuine attraction to Christianity. The applicant stated that he had undergone a lot of hardship because of his Christianity, including having no relationship with his family any longer and the loss of financial support.
At paragraph 49 of its decision, the Tribunal recounted that a witness who gave evidence before the Tribunal stated that he believed that the applicant was a committed Christian and had learned more at Bible classes. The witness was asked if he knew of the applicant’s journey of faith in Malaysia and whether the applicant’s claims were true. The witness stated that he took the applicant at face value and used his own personal experience of people. The witness stated that he had nothing to do with the Pastor from the Liberty Baptist Church and that he had not spoken to him about the applicant.
At paragraph 55 of its decision, the Tribunal stated that it did not accept that the applicant was genuinely converted to Christianity. The Tribunal was satisfied that there was a lack of truth in the applicant’s recount of an alleged prior interest in Christianity in Malaysia, and a deliberate and targeted approach to becoming baptised in Australia indicates that the applicant’s claim to have converted to Christianity was contrived.
At paragraphs 58 through to 64 of its decision, the Tribunal did not accept that the applicant attended Baptist churches while studying in Malaysia, noting that he was unable to provide any photographic evidence of him at church. The Tribunal thought it strange that the applicant would attend a church in Malaysia twice a month for three years but never attempt to undertake any formal education in the Christian faith. The Tribunal took account of the fact that there was no evidence that someone called AL interacted with the applicant on a personal basis. In so finding, the Tribunal noted the complete lack of any correspondence between the applicant and AL. The Tribunal did not accept that AL did not have an English language social media account because people from China would use their own Chinese language social media pages.
At paragraph 65 and 68, of the Tribunal’s decision, the following is said:
65. The tribunal is aware that (the) Liberty Baptist Church is well-known amongst the Iranian community as a place where the pastor will baptise them quickly without much by the way of verifying their level of genuine Christian faith, and that more than 900 Iranians had been baptised here. There also appears to be a degree of urgency in the applicant’s rush to faith once in Australia that was driven more by his desire to apply for a protection visa than by any commitment to that a Christian faith.
68. I have taken into account the letter of support provided by Pastor KP from the Liberty Baptist Church attesting to the applicant’s true Christian faith but I lend it little weight. Pastor P has accepted at face value the applicant’s claims of genuineness of faith which I have found to be fabricated. I have already noted the ease with which the pastor is willing to baptise Iranians at his church without doing any due diligence checks on their backgrounds, and the Tribunal has concerns that there may be a belief that joining this church and getting baptised is a means for establishing refugee claims for Iranian asylum seekers.
The Court notes that there is no footnote or other attributing notation as to the source of the information set out above, including the comment that “more than 900 Iranians had been baptised” at the church and that Pastor KP does little by way of “due diligence checks”.
At paragraph 72 of its decision, the Tribunal found that because the applicant was not a genuine Christian convert, it follows that he had not told his friends or relatives in Iran of his conversion, would not proselytise and therefore would not be imputed with a Christian religious identity upon return to Iran. Although no direct claim is made, the Tribunal did not consider that the applicant would be harmed upon his return to Iran as being a failed asylum seeker. At paragraphs 76 through to 79 and onwards of its decision, the Tribunal concludes that there is no other ground for the applicant having a well-founded fear of persecution for any convention reason, nor does he qualify for complimentary protection.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are set out in an Initiating Application filed with the Court on 2 July 2019. They are as follows:
Ground one
The Second Respondent, the Administrative Appeals Tribunal, committed jurisdictional error by making findings of fact for which there was no logical or probative basis.
Particulars
•The Tribunal’s finding, at paragraph 44 of the Tribunal’s Decision Record, that the church where the applicant was baptised into the Christian religion, the Liberty Baptist Church, was “well known as a place that would baptise Iranians without much effort” was made without any evidentiary support.
•The Tribunal’s finding at paragraph 68, that the pastor of the Liberty Baptist Church had “accepted at face value the applicant’s claims of genuineness of faith” was also made without any evidentiary support.
•The Tribunal’s finding, at paragraph 68 of the Decision Record that the pastor at the Liberty Baptist Church was “willing to baptise Iranians at his church without doing any due diligence checks on their backgrounds” was yet another factual finding that was made without any evidentiary support.
•The unsupported factual findings that were made by the Tribunal infected the Tribunal’s reasoning processes and led and/or contributed to the Tribunal’s conclusion that the applicant is not a genuine convert to Christianity (at paragraph 55 of the Tribunal’s decision).
•The unsupported factual findings that were made by the Tribunal caused the Tribunal to conclude erroneously that the applicant’s church attendance, attendance at religious education and activities and baptism had been “done deliberately and with the sole purpose of strengthening his refugee claim”, and thus to disregard that conduct when determining whether the applicant has a well-founded fear of persecution on religious grounds.
•The unsupported factual findings that were made by the Tribunal led the Tribunal to reject erroneously the applicant’s claims to have a well-founded fear of persecution on religious grounds.
Ground two
The Tribunal committed jurisdictional error by failing to consider and/or by failing to give genuine, proper and realistic consideration to evidence concerning the genuineness of the applicant’s conversion to Christianity.
Particulars
•The Tribunal failed to consider evidence that was given by the pastor of the Liberty Baptist Church to the effect that the pastor had spent many hours personally with the applicant and in group sessions with him that proved the genuineness of the applicant’s conversion to Christianity.
•The Tribunal’s failure to have regard to this evidence infected the Tribunal’s reasoning processes and caused the Tribunal to reject the applicant’s claims to have a well-founded fear of persecution on religious grounds.
By leave, a third ground of judicial review was added at the hearing as follows:
Ground three
The Tribunal’s decision was tainted by apprehended bias, and for that reason was affected by jurisdictional error Particulars
•A fair-minded lay person might think that the Tribunal might not bring a fair and impartial mind to the making of the decision.
•The comments of the Tribunal member, outlined in Ground one of the Initiating Application, might cause a fair-minded lay person to think that the Tribunal approached the proceedings with a mind that was so committed to a conclusion already formed as to be incapable of persuasion, whatever the arguments presented.
•The comments of the Tribunal member demonstrate that the Tribunal member had formed a fixed and unchangeable opinion that all baptisms of Iranians carried out at the Liberty Baptist Church are fraudulent and are done solely for the purpose of achieving an immigration objective.
•The comments of the Tribunal member demonstrate that the Tribunal member had prejudged the issue of the genuineness of the applicant’s conversion to Christianity, and thus the question of whether the applicant would be subject to persecution on religious grounds if he were to be returned to Iran.
•The Tribunal member improperly relied on extraneous information that was prejudicial, specifically the supposed information referred to in Paragraph 43 of the Tribunal’s Decision Record to the effect that “Pastor K P at Liberty Baptist Church had previously told the Tribunal that he had baptised over 900 Iranians and had only ever refused one” and at Paragraph 44 to the effect that “this church was well known as a place that would baptise Iranians without much effort” and at Paragraph 65 to the effect that “Liberty Baptist Church is well-known amongst the Iranian community as a place where the pastor will baptise them quickly without much by the way of verifying their level of genuine Christian faith”.
THE APPLICANT’S SUBMISSIONS
The legal representative for the applicant noted that it was an established principle that the factual findings made by the Tribunal must be supported by probative material and made on logical grounds. Reliance was placed on WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 (“WAIJ”) at [20-22] where it was stated at [21]:
…to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act “judicially” and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at 366-367). That is to say, the Tribunal cannot determine the matter by a “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut-feeling”.
It was submitted that several of the Tribunal’s findings were either without foundation in the evidence that was before the Tribunal or were illogical. It was submitted that the passages in paragraphs 44 and 65 of the Tribunal’s decision, set out above, were without factual support. There was nothing in the Decision Record that establishes anything whatsoever as to the thoroughness by which the Liberty Baptist Church investigated the genuineness of faith of persons prior to performing baptisms, nor was there anything in the Decision Record that supports a finding as to the number of Iranians who had been baptised at that church.
Secondly, the applicant submits that there was no evidentiary basis to support the Tribunal’s finding at paragraph 68 of its decision that the Pastor at the Liberty Baptist Church had “accepted at face value the applicant’s claims of genuineness of faith which I have found to be fabricated”. It was submitted by the applicant that it was unclear if this referred to the Pastor at the Liberty Baptist Church, who did not give evidence, or another witness who did give evidence. There was no evidence to support the proposition that no due diligence checks were performed by the Liberty Baptist Church. The above findings were integral to the Tribunal’s reasoning process, and material to the overall conclusion that the applicant was not a genuine Christian.
In relation to Ground two, it was submitted that the Tribunal failed to consider, and/or failed to engage in an active intellectual process in relation to the contents of the letter that was furnished to the Tribunal on behalf of the applicant by Pastor KP, and, specifically, the portions of the letter where it is stated that the Pastor had spent “many hours with (the applicant) personally and in group sessions that prove his total genuineness in Jesus Christ”.
The Tribunal’s analysis of the Pastor’s letter fell short of the active intellectual engagement, or genuine, proper and realistic consideration, that is an essential element of a proper review process: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107. It was submitted that there is no evidence from the Decision Record that the Tribunal had any regard to this passage in the letter, that it ever turned its mind to the facts stated in this passage (that the Pastor had based his assessment of the genuineness of the applicant’s conversion on the basis of having spent many hours with the applicant), that the Tribunal made any assessment of the veracity of the Pastor’s account, or that the Tribunal weighed the Pastor’s evidence in making an assessment concerning the authenticity of the applicant’s religious conversion.
In relation to ground three, it was submitted that the relevant test in relation to apprehended bias is conveniently set out in Ministerfor Immigration and Citizenship v SZQHH [2012] FCAFC 45 (“SZQHH”) at [37]-[38]:
[37] An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of.
[38] The mere fact that a decision-maker has previously expressed a view on the same or a similar subject does not, of itself, give rise to an apprehension that he or she will not bring a fair and impartial mind to the new decision to be made: see for example in relation to judges Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. After all, decision-makers can be expected to apply the law and relevant policies in a consistent and predictable way. Likewise, decision-makers in the position of a reviewer or administrative official frequently will have to decide the same issues raised by different persons in separate applications including when a number of persons make generic claims. A decision-maker must have a fair and unprejudiced mind when he or she comes to decide a question including one concerning a generic claim that he or she has addressed on another occasion. However, that does not mean that he or she must have a blank or empty mind on the topic.
It was submitted that the comments of the Tribunal member plainly indicated that he approached the matter with a mind that was not open to persuasion. The Tribunal member reviewed the applicant’s case on the basis that all baptisms of Iranians carried out at the Liberty Baptist Church were performed without proper examination of the applicant’s faith, and were therefore fraudulent, and that consequently, any claim in relation to a genuine conversion to Christianity made by an Iranian person who is baptised at the Liberty Baptist Church must be, of necessity, fabricated.
It was submitted that the Tribunal member’s comments indicated first that he held an opinion on the matter in issue (the genuineness of the conversion of Christianity of Iranians baptised at the Liberty Baptist Church). Secondly, that the Tribunal member evidently applied that opinion to the matter in issue (as the member concluded that the applicant’s conversion was not genuine). Thirdly, there is nothing in the Decision Record that remotely suggests that the Tribunal member gave any fresh consideration to the applicant’s particular case. Fourthly, the applicant’s case was prejudged. The applicant submitted that the genuineness of the applicant’s conversion was clearly the kind of matter that needed to be assessed on a case-by-case basis.
It was submitted that a fair-minded person might reasonably think that the Tribunal did not bring a fair and impartial mind to the matter, and that the member’s comments were indicative of the fact that the member approached the matter with a mind that was committed to the conclusion that all conversions based on baptism in the Liberty Baptist Church were fabricated.
In oral submissions for the applicant, it was submitted that the reference to Muin v Refugee Review Tribunal; and Lie v Refugee Review Tribunal (2002) 76 ALJR 966 (“Muin”) as set out below by the first respondent, should be distinguished as it is obita dicta and referred to country information. That is not the situation in this case.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one alleges that the Tribunal’s factual findings bearing on the weight it gave to Pastor KP’s evidence were made in the absence of evidence.
A “no evidence” ground of review is not establish merely by pointing to an insufficiency of evidence; there must be no evidence at all upon which the impugned finding could have been based: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19], and Maxwell v Minister for Immigration and Border Protection [2016] FCA 47 at [54].
A no evidence ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight: see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31]. Furthermore, a decision-maker is entitled to act upon both direct evidence as well as draw inferences of fact: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at
[39]-[41].
As the Tribunal is not bound by the rules of evidence pursuant to s 420(a) of the
Migration Act 1958(Cth) (“the Act”), it is entitled to inform itself in such matters it thinks appropriate. This includes by reference to the body of specialised knowledge the Tribunal has developed. In Muin, Hayne J stated at [263]:
Unlike a court, the Tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual Tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.
Similar comments were made by Callin J in Muin at [291]. Taking such information into account will not amount to a want of procedural fairness by reason of prejudgement: see SZQHH at [40] and [43]-[44]. It is apparent that the Tribunal drew on its accumulated store of knowledge as a specialist decision-maker in the findings it made at paragraphs 65 and 68 of its decision.
The Tribunal was drawing upon its own store of relevant knowledge and expertise about Pastor KP when it put matters to the applicant at the hearing and, critically, when it made the findings sought to be impugned by ground one of the application to the Court. The Tribunal’s findings were also supported by the applicant’s evidence set out at paragraph 42 of its decision, that the applicant had undertaken no formal Bible studies or undertaken any extended period of instruction.
The applicant relies on the case of WAIJ. This case concerned a finding by the Federal Court of a denial of procedural fairness, where the matter was remitted to the then Refugee Review Tribunal (“RRT”) to give due consideration to certain documents. The RRT was found to have effectively disregard the documents, noting that this was not a “poisoned well” case in which the appellant’s credit had been destroyed by stark findings of untruthfulness.
Counsel for the first respondent submitted that WAIJ was a case to which s 422B of the Act (the exhaustive statement of natural justice hearing section) did not apply, noting its commencement date of 3 July 2002 and that the visa application in WAIJ was made in 2001.The assertion by the applicant that the Tribunal attributed something that Pastor C had said to Pastor KP is incorrect. Pastor C gave oral evidence whereas Pastor KP provided a letter. Only Pastor C told the Tribunal that he “took the applicant at face value”.
The Tribunal’s findings at paragraph 68 of its decision necessarily entailed a rejection of Pastor KP’s contrary written evidence being that he “tested the genuineness of (the applicant’s) salvation by making eight observations” and that he had spent many hours with the applicant individually and in group sessions “that prove his total genuineness”. The Tribunal impliedly rejected those statements, preferring to rely upon its own body of knowledge, as put to the applicant at the hearing concerning Pastor KP’s “reputation”. The weight that the Tribunal gives to a particular competing body or item of evidence is a factual matter for it.
Ground two alleges that the Tribunal failed to consider evidence given by Pastor KP “to the effect that the Pastor spent many hours personally with the applicant and in group sessions with him that proved the genuineness of the applicant’s conversion to Christianity”.
Counsel for the first respondent acknowledged that the Tribunal will potentially fall into jurisdictional error for failure to consider an item of evidence where it is demonstrated both that the evidence in question was overlooked and that the evidence was of some import when regard is had to its cogency and potential relevance to the Tribunal’s reasons: see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [54].
The ground fails as the Tribunal expressly considered Pastor KP’s evidence. Counsel for the first respondent submited that the Tribunal is not under an obligation to refer to every item of evidence or material before it: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. The Tribunal was not bound to accept Pastor KP’s assessment of the genuineness of the applicant’s conversion. That was a factual matter for the Tribunal. In the context of Tribunal’s s obligations, to prepare a statement of reasons, pursuant to s 430 of the Act, the Tribunal has no obligation to “set out the evidence which is contrary to the findings of the Tribunal on any material questions of fact where such evidence is not evidence upon which a positive or negative finding is based”: see Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379 at [4]-[5]. Counsel for the first respondent ultimately submitted that the applicant has not shown that the Tribunal overlooked Pastor KP’s evidence.
In relation to the claim of apprehended bias, the first respondent notes that the applicant did not ask the Tribunal member to disqualify themselves during the course of the hearing. Unlike a Court, a Tribunal is not restricted to acting only on material that was expressly referred to in the course of a particular review: see Muin at [263].
In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [187 Hayne J the following was said:
In the case of a court, it will usually be self‑evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision‑makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an "expert" tribunal assumes that this will be done. Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision‑maker. The application of the rules requires consideration of how the decision‑maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision‑maker.
In these circumstances, the comments of the Tribunal member did not give rise to reasonable apprehension of bias, rather, they were an expression of his expert opinion formed from sitting in other matters and other evidence being given.
CONSIDERATION
Consideration of claims of conversion to Christianity made in the context of a claim for refugee protection are inherently difficult given the intensely personal nature of adherence to faith and how this may manifest itself from individual to individual. Even amongst Christian faiths, there are vast differences on how one manifests belief and practices the religion.
Each of the grounds of judicial review to a large extent overlaps as they centre on the weight attributed by the Tribunal to the views of Pastor KP and his evidence contained in a letter to the Tribunal that the applicant had genuinely converted to Christianity.
Ground one alleges the Tribunal fell into jurisdictional error by making findings of fact for which there was no logical or probative evidence. The particulars relied upon centre upon the findings in relation paragraphs 44 and 68 of the Tribunal’s Decision Record that are extracted above. The applicant claims that the unsupported factual findings have, in turn, infected the Tribunal’s reasoning process subsequently.
What is clear is that the comments about the Liberty Baptist Church and Pastor KP form only a part of the overall factual findings that form the basis of the conclusion by the Tribunal that the applicant is not a genuine convert to Christianity. Other findings include the complete inability of the applicant to provide any evidence from AL, the man who the applicant claims introduced the applicant to Christianity in Malaysia, the lack of any photographic evidence of the applicant attending church in Malaysia, his lack of attendance at bible study classes during the 3 years he was in Malaysia along with the timing of his baptism in relation to the submission of the refugee protection claim.
The Court is also mindful, not only from Muin, as quoted above, but also from Jia Legeng, that the Tribunal is entitled to draw upon its specialist knowledge when considering such matters and that it is not bound by the rules of evidence. The Court rejects the submission that Muin is distinguishable as it is obiter dicta and relates to country information. Jia Legeng, as quoted above, indicates the proposition is of general application.
In these circumstances, the Court is not satisfied that there was no evidence upon which the Tribunal could make the factual findings that it did. The Court is not satisfied that the findings of the Tribunal not to give any weight to Pastor KP’s letter infected the other factual findings made by the Tribunal that formed the basis of its ultimate finding that the applicant was not a genuine convert to Christianity. Those other findings, are, by themselves, capable of supporting the Tribunal’s ultimate finding. Accordingly, ground one fails.
Ground two alleges the Tribunal failed to give proper, genuine and realistic consideration to Pastor KP’s letter. That claim cannot succeed. The Tribunal clearly considered the material but rejected the views proffered by the Pastor for the reasons given. A Tribunal does not have to accept, uncritically, any and all claims made by an applicant, nor does it have to possess rebutting evidence before holding that a particular assertion is not made out: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at [348]. Further, the Tribunal is under no obligation to give a line by line refutation of every item of evidence: see Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 74 ALJR 405 at [65].
Ground three is more difficult. The test for both actual and apprehended bias is well known and understood. If this Court were to make the comments made by the Tribunal member in the course of a judgement, the Court accepts that this would give rise to a reasonable apprehension of bias. The difficulty in this case, however, is that the Tribunal member relied upon his specialist knowledge from having undertaken many matters involving claims of conversion to Christianity by Iranian citizens. It is clear that the Tribunal is at liberty to do so. This may well relate not only to country information, but other aspects of the Tribunal’s specialist practice.
In the Court’s view, the comments by the Tribunal member were clearly infelicitous. They indicate an unwillingness to accept any views by Pastor KP as to the genuineness of a conversion to Christianity by someone who attends the Liberty Baptist Church and has been baptised. The Tribunal member indicated that Pastor KP will “baptise them quickly without much by the way of verifying their level of genuine Christian faith”: see paragraph 65 of the Tribunal’s decision. Earlier, at paragraph 43 of its decision, the Tribunal member noted that he put to the applicant that “Pastor KP previously told the Tribunal that he had baptised over 900 Iranians and had only ever refused one”.
The Court is left to ponder whether the overall comments of the Tribunal member gives rise to an apprehension by a fair minded lay observer that the Tribunal member was not bringing a fair and impartial mind to the making of the decision. Using the four step process set out by Hayne J in Jia Legeng, first, it is clear that the Tribunal member had an opinion on the reliability of the evidence of Pastor KP. Second, it is clear that by placing no weight on the letter provided by Pastor KP, the Tribunal member applied that opinion to the matter in issue. The third issue is whether the Tribunal member did so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
The Tribunal member did not find against the applicant simply on the basis that he rejected the evidence of Pastor KP. There was a clear analysis of a number of other factual matters including the timing of the applicant’s baptism as well as the lack of objective evidence of his involvement with the Christian faith while in Malaysia. The Court is satisfied that it was these matters that ultimately led the Tribunal to the conclusion that it did, that the applicant was not a genuine convert to the Christian faith. In these circumstances, the Court is not satisfied that the reasonable lay observer would determine that the Tribunal member had prejudged the issue. Rather, the Tribunal member gave a basis for why he gave no weight to the evidence of Pastor KP and was able to provide a rational and logical basis for the conclusion that he did based on the totality of the evidence.
Accordingly, ground three is not made out.
CONCLUSION
The application is dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 24 May 2021
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