DYQ16 v Minister for Immigration

[2019] FCCA 166

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYQ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 166

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal drew an adverse inference – whether ground two sought impermissible merits review – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.430, 476

Cases cited:

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516;

(2016) 69 AAR 210

Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010)

187 FCR 362; (2010) 272 ALR 115; (2010) 117 ALD 259

Applicant: DYQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3604 OF 2016

Judgment of: Judge Nicholls

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Sydney

Delivered on: 31 January 2019

REPRESENTATION

Solicitors for the Applicant: Newman & Associates

Appearing for the Applicant: Mr M Newman

Solicitors for the First Respondent: Minter Ellison Lawyers

Appearing for the First Respondent: Mr J Pinder

ORDERS

1. The application made on 19 December 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3604 OF 2016

DYQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 December 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 November 2016 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB”, “RE1”).

Background

1. The factual background to this matter is conveniently set out in the Minister’s written submissions at [4] – [9].  In my view, having regard to the evidence before the Court, it is a fair and accurate summary. Nor did the applicant dispute any part of this summary, set out at [4] – [9] of the Minister’s written submissions:

   “4. The applicant is a citizen of Nepal, who arrived in Australia on 30 May 2009 on a student visa.

   5. On 3 September 2014 the applicant applied for a protection visa (CB1–30).

   6. On 14 April 2015 a delegate of the first respondent (the delegate) refused to grant the applicant a protection visa (CB52–72; esp. CB63–72).

   7. On 1 May 2015 the applicant lodged an application to the Tribunal for review of the delegate's decision (CB73–79).

   8. On 23 September 2016 the applicant appeared before the Tribunal to give evidence and present arguments (CB113–115).

   9. On 18 November 2016 the Tribunal affirmed the delegate's decision (CB118–137; esp. CB124–137).”

The Applicant’s Claims to Protection

1. On the evidence before the Court, the applicant presented various iterations of his claims to fear harm, commencing with a statutory declaration, which accompanied his protection visa application, through to what he told the Tribunal at the hearing before it.

2. The Minister’s submissions concisely, and fairly, summarise these claims [10]:

   “The applicant claimed that, in Nepal, he opposed the Maoists, and was extorted by them, but he could not meet their extortion demands. As a result, he was forced to leave his village and relocate to Kathmandu, where he continued to experience extortion demands that he could not meet. He claimed to fear the following harm were he to return to Nepal:

   (a) that he will be extorted and killed by the Maoists because he supports the monarchy;

   (b) that he will not be able to practise his religion (Christianity), to which he had converted;

   (c) that he will not be able to live peacefully and freely because he belongs to the Tamang ethnic group which is suppressed by higher caste people; and

   (d) that his former wife's mother will arrange to have his hands cut off because he divorced her daughter.”

The Tribunal

1. The key finding made by the Tribunal in affirming the delegate’s decision, was that the applicant was not a credible witness ([16] at CB 128):

   “I did not find the applicant to be a credible witness. He was at times evasive, he made a number of significant claims at the hearing which were not mentioned in his statutory declaration, and there were some substantial inconsistencies between his testimony and statutory declaration. Further, the credibility of his claims is undermined by his significant delay in applying for the protection visa. I elaborate below.”

1. The Tribunal then set out its reasons for that finding with specific emphasis on the applicant’s evidence given at the hearing and the circumstances presented in, and by, his application for the protection visa (including the statutory declaration, and the five year delay in applying for the protection visa after arrival in Australia) ([17] – [23] at CB 128 – CB 130).

2. The Tribunal then set out its findings in relation to each of the set of claims made by the applicant as to why he feared harm if he were to return to Nepal:

   i.Pro-monarchy, Maoist and extortion claims.  ([25] – [30] at CB 130 – CB132).

   ii.Religious claims.  ([31] – [32] at CB 132).

   iii.Tamang ethnicity. ([33] – [36] at CB 132 – CB 133).

   iv.Harm due to divorce.  ([37] at CB 133).

3. The Tribunal found that: “[o]n the basis of the above findings”, the applicant did not satisfy either of the criteria for the grant of the protection visa.

The Application to the Court

1. The grounds of the application to the Court are:

   “1. The tribunal erred in law in its jurisdiction when it drew an adverse inference from the applicant being unable to pinpoint the date when he considered himself to be a Christian as if the specific date of a specific event were critical, the tribunal saying the question ‘was a simple one’ when clearly the adoption of another faith may be more realistically seen as one of evolution.

   2. The tribunal erred in law in its jurisdiction when it accepted that although the applicant was a member of the Tamang minority ethnic community and had suffered discrimination thereby, he was not entitled to receive complementary protection provided for in the Migration Act 1958.”

1. Both parties filed written submissions, although the applicant did not comply with the timetable set out by the Court. The parties were represented before the Court by their respective solicitors (the applicant’s solicitor appeared by telephone).

Consideration

1. The essence of ground one is explained at [1] of the applicant’s written submissions:

   “1. It is almost a truism to say that on a certain bright sunny day or for that matter on a particularly black day one does not choose another religion in place of one’s own. Of course, the reverse does not follow: a particularly black day (a memorable event) could destroy one’s faith in one’s religion in an instant, searing the date into the memory of the person and if forgotten may be reasonably easily retrievable by association with some other event. But the acquisition of a new religion has an evolutionary quality about it and anyone who professes a new religion out of the blue may be assumed to be a false professor.”

1. Before the Court, the applicant’s submissions were that the Tribunal focused on the question as to precisely when the applicant became a Christian, and characterised this question as a “simple” question.  The applicant submitted that the determination as to when a person becomes a Christian, or for that matter adopts any religious conviction, is both a theological and sociological question.  The complaint was that the Tribunal did not ask questions about the religion, but rather, focused on what was said to be the unfair question of when the applicant became a Christian.

2. The nuanced explanation of the applicant’s submission, was that the Tribunal failed to “define” what it was seeking to ask the applicant.  That is, that it asked the applicant an unclear, and unfair question, and then unfairly relied on what it said was the applicant’s unsatisfactory answer to find adversely to his credit.

3. The applicant’s argument was that “conversion” is an evolutionary process. The argument was that in his statutory declaration, and in his evidence before the Tribunal, the applicant had made reference to Gurkhas who had served in the West, some of whom had converted to Christianity and had returned to Nepal. The applicant’s interest in Christianity thus arose when he looked at religious material that the Gurkhas distributed to people in his village.  Further, that after the applicant arrived in Australia he started going to church and commenced Bible study and that his commitment to Christianity was therefore evolutionary.

4. In short, therefore, the attack on the Tribunal’s approach was that the Tribunal wanted a “starting point”, that is, it wanted a date when the applicant became a Christian in the sense of a “particular event”, instead of seeking to understand the applicant’s evolutionary path to his religious conversion.

5. In his submissions, the applicant relied specifically on [21] (see CB 129 – CB 130) of the Tribunal’s decision record:

   “21. The applicant’s testimony about his religious claims was evasive and contradicted his statutory declaration. According to his statutory declaration he attended a church in Srathfield and hoped to be baptised soon. He said he was ‘fully in to (sic) Christianity and will not be able to live without Christianity’ and that ‘being a Christian and living in Nepal is just not possible’. At the hearing I noted that he claimed to be a Christian and could not live as a Christian in Nepal and asked him to be specific about the future serious or significant harm he would face as a Christian. His reply was very general. For example, he spoke about society looking at those who converted to Christianity with a different eye and of the Maoists being aware that he had converted which would create problems for him. He said he read about bomb blasts in churches and referred to making a comment online about religious freedom in which he referred to his conversion to Christianity. The rather rambling and general reply left the impression that the applicant was being intentionally evasive. When I questioned him about the newspaper comment he referred to, his response seemed rehearsed. Further, it took much questioning to elicit when he became a Christian. His initial response was that he became interested in Christianity in Nepal but it was not clear that he became a Christian in Nepal. Asked again, he said he was not baptised due to language difficulties and mentioned attending a church in Darlinghurst. Further attempts to elicit a clear answer, resulted in a long and convoluted response which did not clearly indicate when the applicant became a Christian. Eventually he indicated that he had believed in Christianity in Nepal. The question was a simple one yet I felt that the applicant avoided giving a clear and direct response.”

   [Emphasis added]

6. I agree with the applicant’s submission that the acquisition of a new religion, the process of accepting a religious faith, has an evolutionary quality.  But the applicant’s argument in explanation of ground one, and the terms of the ground itself, suffer from a mischaracterisation of the Tribunal’s reasoning and findings, and a failure to understand the Tribunal’s reasoning in a holistic, and fair, sense.

7. One, the applicant’s ground proceeds on the premise that the Tribunal drew an “adverse inference” from the applicant’s inability to “pinpoint the date” when he considered himself to be a Christian.

8. The argument is that asking the applicant to “pinpoint” a specific date was contrary to the appropriate, and fair, way to assess religious conviction given the “evolutionary” quality of such a process.

9. Paragraph 21 of the Tribunal’s decision record, and in particular, that part of it relied on by the applicant now, is a part of the Tribunal’s evaluation of the applicant’s evidence given at the hearing.

10. There is nothing in this part of this paragraph, nor the paragraph as a whole, or indeed elsewhere in the Tribunal’s analysis, to support the applicant’s contention now that the Tribunal asked him to “pinpoint” the exact date of his religious conversion.

11. The reference to “when he became a Christian”, in context, was not focused on “a certain bright sunny day”, or even a “particularly black day” (with reference to the applicant’s written submissions), but, in context, was an attempt to elicit from the applicant some detail as to his claimed religious conversion.

12. For example, in the very same paragraph the Tribunal reports the applicant to have given evidence that: “…being a Christian and living in Nepal is just not possible.” It was not clear from the applicant’s claims and evidence whether this statement was based on his own experience as a Christian in Nepal, or his assumption that that would be the case if he returned as a Christian.

13. In this light, the Tribunal was concerned, for example, amongst many other matters, to elicit evidence from the applicant as to whether he became a Christian in Nepal, or after he arrived in Australia.  (See also at [32] (CB 132): “I do not accept that the applicant became a Christian either in Nepal or in Australia”).

14. The Tribunal’s question was directed to an approximate, not a specific point in time, and was in response to the applicant’s own vague and unclear evidence.

15. In short, the issue for the Tribunal was not the exact date as to when the applicant became a Christian, but his demonstrated inability to provide a clear explanation of the very evolutionary process that the applicant now claims is a feature of religious conversion.

16. Two, the applicant’s ground, and submissions, appear to have overlooked that the issue identified by the Tribunal, and explained by it at the hearing, was the credibility of the applicant’s evidence and claims, relevantly, in relation to his claimed Christian conversion.

17. As the Minister submitted, the Tribunal’s questioning in this regard was a “legitimate exploration” of whether the claimed conversion was genuine or not.  The applicant himself claimed in his protection visa application to be a Hindu.  (See item 15 at CB 13).  In his accompanying statutory declaration he made claims of an emerging interest in Christianity while in Nepal.

18. In this light, the Tribunal was entitled to ask the applicant about not only the claimed conversion, but the circumstances that led to that conversion.  The Tribunal’s questions, when looked at in context, and holistically, reflect questions aimed at the very “evolutionary” path to religious conversion which the applicant’s submissions now say is the appropriate way to ascertain religious belief.

19. Three, the applicant’s submission that it was unfair of the Tribunal to decide: “…the whole application on one question” is, plainly, a serious factual misrepresentation of what the Tribunal has done.

20. The Tribunal’s decision record reveals that it found adversely to the applicant’s credit in relation to religion on a large number of factors, including that at the hearing he raised the matter of religious conversion only when prompted by the Tribunal, his general, and intentionally evasive evidence, and significant discrepancies between his oral and written claims.

21. Four, this was also in context where the Tribunal found adversely to the applicant’s credit on the large number of other matters which were reasonably open to it on what was before it.  The Tribunal found that, the credibility of the applicant’s claims was undermined, generally, by the “overall lack of credibility” arising from all of his evidence.  The matter of the general “timing” of the conversion was only one part of this comprehensive rejection of the applicant’s credibility.

22. As the Minister submitted, there were a number of other detailed reasons regarding the applicant’s credibility that provide an independent basis for the Tribunal’s conclusion as to the credibility of the religious claim  (Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [64] – [71]).

23. Five, the applicant did not refer to any authority in his submissions to support his argument in relation to ground one. However, I note, and agree, with the Minister’s reference to Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [38] - [39] for the proposition that the Tribunal did not, by its questioning, impose its own standard of religious observance, or otherwise act as an arbiter of religious doctrine.

24. Six, in the current case, the applicant has not provided any evidence by way of a transcript of the Tribunal hearing.  His ground, and argument, depend entirely on the Tribunal’s decision record, and the Tribunal’s account of what occurred at the hearing.  It is clear that the applicant’s ground, and argument, derives from what he says was the Tribunal’s questioning of him at the hearing. On what is before the Court, that questioning was directed to the question as to how the applicant came to his claimed “new” religious faith.

25. In that light, I agree with the Minister that the applicant’s challenge to the Tribunal’s questions said to have been put at the Tribunal hearing requires actual evidence of those questions. The absence of relevant evidence from the applicant as to actually what was said at the hearing by the Tribunal in its questions is a deficiency in the applicant’s case. This is particularly so in circumstances where the applicant’s complaint now is founded on what he says was a “specific” question asked by the Tribunal.

26. Seven, in essence, the applicant’s ground, albeit with a narrow focus on what it says is the Tribunal’s narrow, and specific, focus, is really a challenge to the Tribunal’s adverse credit finding, which underpinned its conclusion that the applicant was not a Christian.  The applicant’s attempt before the Court to characterise what he says was the evolutionary path to his conversion is really an attempt now to articulate the applicant’s claims to religious conversion in a way that he could have, but on the evidence did not, articulate to the Tribunal at the hearing.

27. The Tribunal’s finding at [21] (CB 129) that the applicant’s testimony about his religious claims was evasive, and contradicted what was in his statutory declaration, is a finding made by the Tribunal with reference to what is in that statutory declaration, and what the applicant is reported by the Tribunal to have said at the hearing. 

28. The Tribunal explained this finding in the remainder of [21], which includes that part impugned now by the applicant.  In context, the Tribunal’s finding that it: “…took much questioning to elicit when he became a Christian” is again a finding, and conclusion, which the Tribunal derived from the hearing. 

29. The Tribunal is not required in its decision record to set out a transcript of the hearing it conducted with the applicant. The Tribunal’s obligation, pursuant to s.430 of the Act, is to relevantly set out its “findings on any material questions of fact”, and refer to the evidence on which the findings of fact were based. That is precisely what the Tribunal has done in the current case. The relevant finding of fact was that the applicant was found not to be a credible witness. What is set out at [21] is but one part of a number of elements to explain that finding.

30. It is of note that the evidence to which the Tribunal referred was the applicant’s own evidence given at the hearing. Specifically, in that context, the Tribunal’s report that he: “…took much questioning to elicit when he became a Christian” is followed by the explanation of the Tribunal for the basis for that finding. 

1. The Tribunal did not find adversely to the applicant’s credit because he was unable to “pinpoint” the time of his religious conversion.  But rather found adversely to him because his evidence about his religious conversion (in context the entirety of its claimed evolutionary development) was his “rather rambling and general” replies, giving rise to an impression that he was being intentionally evasive and that he had seemingly rehearsed his answers coupled with “long and convoluted response[s]”.

2. Specifically, the Tribunal’s finding that the applicant “did not clearly indicate when [he] became a Christian” (the specific part impugned now by the applicant’s submission is not a finding which resulted from a specific question from the Tribunal as to when the applicant became a Christian. Rather, it is a finding arising from the applicant’s own evidence otherwise described as “long and convoluted” where he was unable to provide the Tribunal with an indication as to when he considered himself to be a Christian.

3. This was an entirely appropriate approach for the Tribunal to take.  It is an approach consistent with the very evolutionary nature of religious conversion for which the applicant otherwise now contends.  The Tribunal’s reasoning is that if the applicant had genuinely converted to Christianity he would have been able to have provided far more specific, and detailed, answers, than the general, evasive, and convoluted answers which he did provide.

4. In essence, the applicant’s complaint is an attack on the Tribunal’s adverse credibility finding. When proper regard is had to the entirety of the Tribunal’s reasoning, that is on a fair and holistic reading of its decision record, rather than a narrow focus on one part of it, it is clear that the Tribunal asked the applicant a “general” question about when he converted which does not reveal that the Tribunal harboured any theological or sociological expectations as to what the applicant’s answer should be. 

5. Simply, the Tribunal was seeking to elicit from the applicant his own account of the conversion. The applicant was unable to provide a satisfactory explanation, or account, to the Tribunal. The Tribunal’s reasoning was that if he had genuinely converted he would have been able to do so.

6. The Tribunal’s conclusion, and the findings that informed it, were all reasonably open to it and probative of the evidence before it. The Tribunal gave an intelligible explanation and justification for its ultimate conclusion that the applicant was not genuine in his conversion to Christianity (see [32] at CB 132).  The fact that the Tribunal was not persuaded by the applicant’s evidence does not mean that its conclusion was not reasonably open to it.

7. I do not accept the applicant’s submission that the Tribunal asked a specific question, let alone that it was unclear and unfair.  As set out above, the Tribunal did give the applicant (when its analysis is read in its totality) the opportunity to explain his religious conversion.  He did not do so to the Tribunal’s satisfaction. In all, therefore, ground one is not made out.

8. The applicant’s application to the Court also contained a second ground.  No reference was made to this in the applicant’s written submissions.  Nor did the applicant’s representative make any reference to ground two in his opening oral submissions. 

9. During his submissions, the Minister made specific reference to ground two, and the absence of any submissions by the applicant in explanation or support. In spite of this the applicant’s solicitor again made no reference to it in oral submissions in reply.

10. The applicant’s solicitor did not make any specific statement abandoning ground two.  However, in my view, the failure to explain, or prosecute, let alone make any reference to it, can only be understood as an abandonment of that ground. 

11. I take the view that if a legal practitioner, who has drafted a ground for an applicant in an application to the Court, is unable, or unwilling, to explain the ground at the hearing or indeed to make any attempt to prosecute that ground, then that is a sufficient basis to find that the ground is abandoned.

12. I note that in any event ground two asserts that the Tribunal fell into jurisdictional error because it accepted that the applicant was a member of the Tamang minority in Nepal, and had suffered discrimination for this reason, yet it found he was not entitled to receive complimentary protection under the Act.

13. On the evidence before the Court, the assertion in the ground is really in the circumstances, no more than an invitation to the Court to engage in impermissible merits review.

14. With reference to [33] – [36] (CB 132 to CB 133) of the decision record, the Tribunal did accept that the applicant belonged to the Tamang ethnic group.  The Tribunal also accepted that based on country information before it, it was plausible that the applicant would face some discrimination in the future.

15. However, the Tribunal also found that the specific instances of discrimination, as best as they could be understood from the applicant’s evidence, were either exaggerated or of a general nature.

16. The Tribunal did not accept that the claims “reflect the applicant’s particularly [sic] circumstances.”  The Tribunal found here ([36] at CB 133):

    “36. Given the information in the sources I have consulted about the societal discrimination against certain ethnic and caste groups; it is plausible that the applicant has in past and will in the future face some such discrimination. However, I find the claims he made in his statutory declaration and at the hearing were exaggerated or of a general nature. I do not accept that they reflect the applicant’s particularly circumstances. The applicant had 8 years of education, was able to move to Kathmandu and work there for several years in a job that was not farming or that of a porter. This does not indicate that he was like a slave or that he was suppressed in all aspects of life, or that he could not live peacefully or freely. On the evidence before me and based on the applicant’s particular circumstances, I find that there is not a real chance that he will suffer discrimination or harm in the reasonably foreseeable future for reasons of his ethnicity and/or caste which amounts to serious harm or significant harm.”

[Errors in the original]

1. Further, the Tribunal’s finding at [40] is as follows:

   “40. On the basis of the findings I have made above and having considered the risk of harm he faces cumulatively, I have concluded that there are not substantival grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

2. This was reasonably open to the Tribunal on what was before it.  The Tribunal’s analysis which underpinned its findings which in turn informed its conclusion, was logical and rational and probative of what was before it.  Even if the applicant had pressed ground two, as pleaded, without anything further ground two plainly lacks merit.

Conclusion

1. Ground one of the application is not made out. Ground two has either been abandoned, or even if remains for consideration by the Court, lacks merit.  It is appropriate to dismiss the application to the Court. I will make that order.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 31 January 2019