MZAKR v Minister for Immigration
[2016] FCCA 1649
•15 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAKR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1649 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause procedure. JURISDICTIONAL ERROR – Extensive review of authorities. |
| Legislation: Commonwealth of Australia Constitution Act (Cth), s.75 Migration Act 1958 (Cth), ss.36, 474, 476 Migration Regulations 1994 (Cth), Sch.2, subcl.866.221 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559 |
| Applicant: | MZAKR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1845 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 8 March 2016 |
| Date of Last Submission: | 8 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Applicant in person |
| Solicitor-Advocate for the First Respondent: | Mr B. Hornsby |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
The application filed by the applicant on 11 September 2014 is dismissed.
The applicant pay the first respondent’s costs of and incidental to this application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1845 of 2014
| MZAKR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 11 September 2014, the applicant sought an order calling upon the Minister for Immigration and Border Protection (“the first respondent”) to show cause why a remedy should not be granted under s.476 of the Migration Act1958 (Cth) (“the Act”).
On 15 August 2014, the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) affirmed the decision of the delegate (“the delegate”) of the first respondent not to grant the applicant a Protection (Class XA) visa (“the visa”).[1]
[1] Court Book filed 19 January 2015 at pp.145-167.
The applicant sought judicial review of the Tribunal’s decision, contending that the Tribunal fell into jurisdictional error when refusing to set aside the decision of the delegate.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error with the consequence that this application must be dismissed.
Relevant chronological background
The applicant was born in Tehran on 2 July 1985. He applied for a protection visa on 26 June 2013.
The applicant arrived in Australia on 1 November 2012. On the date of his arrival, he held a prospective marriage visa on account of his intended marriage to Mojegan Ibrahim Nejad (“Ms Nejad”). That visa expired on 11 June 2013. On that day, the applicant lodged an application for a Protection (Class XA) visa. However, he did
not pay the prescribed fee for it so his first visa application lapsed.
On 26 June 2013, the applicant lodged the operative visa application for the purposes of this litigation.[2]
[2] Court Book filed 19 January 2015 at pp.18-32.
The applicant and Ms Nejad separated soon after the applicant arrived in Australia in February 2013.
On the visa application, the applicant did not complete question 13 (the ethnic group to which he belonged) or question 14 (his religion).
He completed question 34 by recording that he lived in the
United Kingdom while studying between January and October 2011.
In answer to question 43 he stated that he left Iran “[t]o live in Australia and have religious freedom”.[3] In answer the question 45,
a question that asked him what he feared may happen to him if he went back to Iran, the applicant stated as follows –
[3] Court Book filed 19 January 2015 at p.24.
I’ve converted from Islam to Christianity in my home country.
I kept that as a secret for about 3 years. A few months ago,
the Religion-Police of Iran found out about my faith, and now I’m in a great danger if I return to my home country. According to Shari’a law, the punishment for apostasy is death by hanging.[4]
[4] Court Book filed 19 January 2015 at p.25.
The applicant used the same answer to questions 47 and 48.[5]
[5] Court Book filed 19 January 2015 at pp.26-27.
In an eight-page typed statement that accompanied his visa application, the applicant narrated the background that led to his making the visa application.[6] In that statement, the applicant addressed -
[6] Court Book filed 19 January 2015 at pp.67-74.
a)his enthusiasm for Christianity since the age of 18;
b)his relationship with a Christian girl;
c)his military service and the orders given by the authorities that the girlfriend not contact the applicant;
d)his baptism into the Christian faith and official change of religion on 5 April 2010;
e)his study in the UK where he met a Christian woman called Marjan;
f)his internet meeting of Ms Nejad and how the two discussed marrying; and
g)
the fact that he was interrogated at the office of the
Revolutionary Guard Intelligence Service, and by religious police.
The applicant stated that he and Ms Nejad decided to become engaged and to live in Australia but that she was unable to fall pregnant so the applicant and Ms Nejad separated.
The applicant stated that in April 2013, while the applicant resided in Australia, religious police entered his family’s home without warrants. He stated that on two further occasions his family had received visits from the Revolutionary Court stating that the applicant was required to attend Court, in default of compliance with which the applicant could be arrested.
The applicant asserted that under Shari’a law, capital punishment would be applied to a Muslim who converted to any other religion.
He stated that “an apostasy case is now open against me back in Iran and I will be severely punished if I ever go back to Iran”.[7]
[7] Court Book filed 19 January 2015 at p.74.
Before the delegate
The applicant was unsuccessful before the delegate who, on
13 February 2014 and in reliance upon s.36 of the Act as well as subcl.866.221 of Sch.2 of the Migration Regulations 1994 (Cth)
(“the Regulations”), refused to grant the applicant the visa.
Before the Tribunal
On 21 February 2014, the applicant electronically filed an application in the Tribunal seeking a review of the determination of the delegate,[8] receipt of which the Tribunal acknowledged to the applicant and to the applicant’s migration agent.[9] By invitation dated 27 May 2014,[10]
the Tribunal invited the applicant to appear before the Tribunal at a hearing to be conducted on 8 July 2014. The applicant attended that hearing and his evidence was received through an interpreter.
The Tribunal also heard evidence from Marjaneh Marjani, a friend of the applicant’s mother. The Tribunal member commenced the hearing at 1.30 p.m. and concluded the hearing at 4.43 p.m.[11] The Tribunal gave the applicant 14 days within which to provide
additional information, which the applicant did on 18 July 2014.[12]
On 18 August 2014, the Tribunal decided to affirm the decision under review,[13] the effect of which was to refuse the applicant the protection visa he sought. On that day, the Tribunal published its reasons for its decision to affirm the decision of the delegate.[14]
[8] Court Book filed 19 January 2015 at pp.120-121.
[9] Court Book filed 19 January 2015 at pp.122-124.
[10] Court Book filed 19 January 2015 at pp.127-128.
[11] Court Book filed 19 January 2015 at pp.131-132.
[12] Court Book filed 19 January 2015 at pp.140-142.
[13] Court Book filed 19 January 2015 at p.144.
[14] Court Book filed 19 January 2015 at pp.145-167.
In the passages below I have addressed those portions of the Tribunal’s reasons relevant to the applicant’s grounds of review.
Grounds of review
In this Court, the applicant put forward four grounds of review.[15]
They are set out below. In considering them, I recognise that -
a)the applicant was not legally represented in this Court;
b)the applicant personally prepared the grounds of review; and
c)the English language may not have been the applicant’s first language when he completed the grounds of review.
[15] Application filed by the applicant on 11 September 2014 at p.3.
The grounds of review were –
1. Fear of persecuted (sic) for religion change.
2. Serious punishment from Iranian Law for people who changed their religion (Hanging – Death)
3. my Fear as the Iranian government Looking For me and my Family are under pressure (sic).
4. If I go back to Iran my life is at risk as the Iranian government know I changed my religion[16]
[16] Ibid.
The applicant did not file submissions to articulate his claims in this Court. However, through an interpreter the applicant addressed his issues in this case in the following terms –
HIS HONOUR: Well, this is the time of the case where you have the opportunity to tell me what you say the tribunal did wrong in reaching the decision that it did.
THE INTERPRETER: I think in the decision-making by tribunal, I was asked lots of questions and every time I was responding to the questions, they would either tell me that I wasn’t – sorry. I just – they would – because they would put me under pressure and as a result the answers I would provide were maybe a little bit of difference in the dates or the events or something like that.
HIS HONOUR: Okay. Thank you. So you felt under pressure when you were before the tribunal.
THE INTERPRETER: Yes. A lot. Very much.
HIS HONOUR: The tribunal has reached its conclusions and it has published 23 pages of reasons. What’s wrong with those reasons?
…
THE INTERPRETER: I say then that even when I was telling them that although I became Christian now, but I have been a Christian a long time ago, and if I’m going to church now – but – and I didn’t go before, but still I was a Christian. And the reasons that I was providing them with they are constantly denying. And, unfortunately, I could see that I couldn’t convince them. And another – and it was unfortunate that my lawyer had to leave 45 – I had a lawyer, but the lawyer had to leave 45 minutes prior to conclusion of the tribunal.
HIS HONOUR: Well, let me just see if I understand what you’re saying there. Are you saying that you told the tribunal that you were, and had for a long time been, a practising Christian?
THE INTERPRETER: Yes.
HIS HONOUR: Do you complain that the tribunal did not believe you on that issue?
THE INTERPRETER: Yes. Yes. All the details. Yes. All the details. Whatever that I was telling them they very easily were denied. They would reject. I can remember that even I was talking, they neither listen or really pay attention. I would give my reasons, I would talk and then instead of commenting on that or going through that he would go to another subject. She would go to another subject. Another unfortunate situation was that – as I remember, was because it took two and a half, three hours, and the interpreter couldn’t stay overtime and she left as well. She left as well.
HIS HONOUR: So the interpreter couldn’t stay and the applicant’s legal representative left early as well. Is that right?
THE INTERPRETER: Yes. Because he had come from Sydney, so he said that he had a flight back to Sydney and he would be late for this flight. And after him the interpreter leave. And member very easily accepted and said, okay. So we shorten the time for this reason.
HIS HONOUR: Well, you don’t complain in this case that you weren’t given a fair hearing, do you?
THE INTERPRETER: Unfortunately, I have forgotten.
…
HIS HONOUR: You say most fundamentally that you’re not happy with the findings of the tribunal about the points you made concerning fear of prosecution. Is that right?
THE INTERPRETER: Yes.[17]
[17] Transcript of Proceedings, 8 March 2016 at pp.12-13.
Possibly because of the brevity of the applicant’s grounds of review, the written submissions filed by the first respondent on 1 March 2016 were broad and imprecise, contending in the main that the applicant did not identify jurisdictional error and instead embarked in this proceeding on an impermissible merits review.
The first respondent’s written submissions[18] advanced the point that this Court cannot review the merits of the Tribunal’s decision as that was a matter for the Tribunal and for the Tribunal alone.
Citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham,[19] (“Durairajasingham”) the first respondent contended that the Tribunal explored the applicant’s claims at the hearing and gave the applicant’s evidence “proper, genuine and realistic consideration” as it was required to do by operation of the High Court’s decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs.[20] The first respondent submitted that the Tribunal made permissible findings in relation to credibility. Citing Durairajasingham,[21] the first respondent submitted the Tribunal was placed “par excellence” to assess credit issues.[22]
[18] First Respondent’s written submissions filed 1 March 2016.
[19] (2000) 168 ALR 407.
[20] (2005) 228 CLR 470.
[21] (2000) 168 ALR 407.
[22] First Respondent’s written submissions filed 1 March 2016 at [35].
So far as the Tribunal’s findings of fact were concerned, the first respondent submitted that the Tribunal’s central finding of fact was reasonably open based on the evidence before it, namely, that the applicant did not have a well-founded fear of persecution for a Convention reason. The first respondent additionally submitted that in the circumstances, the Tribunal made no jurisdictional error.
The applicant’s real complaint
When properly understood, the applicant’s four stated grounds of review overlapped and can be better encapsulated in a single proposition. It is this - the applicant said he feared he would be killed, severely punished or persecuted by the Iranian government because he changed his religion.
It will be apparent from the foregoing that the applicant did not articulate the jurisdictional error he said the Tribunal made, beyond his contention that the Tribunal should have, but failed to, accept that his conversion to Christianity was a sufficient basis for the grant of a Protection (Class XA) visa.
Before analysing precisely what the Tribunal did in this case and assessing its sufficiency, it is necessary to say a little about relief available for jurisdictional error.
Jurisdictional error
Under the the Act, the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act,
and the Regulations made under it, specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error.
In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).
Judicial review under s.474 of the Migration Act 1958
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474,
a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v The Commonwealthof Australia[23] (“Plaintiff S157/2002”).
[23] (2003) 211 CLR 476 at [72].
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded in law as being no decision at all.
So much was held by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[24]
[24] (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
The majority in Plaintiff S157/2002[25] held to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
[25] (2003) 211 CLR 476 at [76].
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[26] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[27] In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[28]
[26] (1995) 184 CLR 163.
[27] Craig v State of South Australia (1995) 184 CLR 163 at 177.
[28] Ibid.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the Tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[29]
[29] Ibid.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[30]
[30] Craig v State of South Australia (1995) 184 CLR 163 at 177.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.[31]
The majority (McHugh Gummow and Hayne JJ) applied that test in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.[32] That form of jurisdictional error is to be contrasted with the wrongful failure or refusal to exercise jurisdiction, of which Brennan J spoke in Public Service Association (SA) v Federated Clerks Union South Australian Branch and Anor[33] where Brennan J held that an administrative body misconceives its jurisdiction (and thereby engages in jurisdictional error) where it fails to consider the true question it has to decide.
[31] Craig v State of South Australia (1995) 184 CLR 163 at 178.
[32] (2001) 206 CLR 323, 351 at [82].
[33] (1991) 173 CLR 132.
These are illustrations only of the ambit of jurisdictional error.[34] As the High Court in Kirk v Industrial Relations Commission (NSW)[35] held,
it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig[36] does not provide a rigid taxonomy of jurisdictional error. For that matter, as the High Court held in Minister for Immigration and Citizenship v Li and Anor[37] every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.[38] That concept was recently applied by the Full Court of the Federal Court of Australia in NBMZ v Minister for Immigration and Border Protection[39] (“NBMZ”).
[34] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[35] (2010) 239 CLR 531 at [71] and [73].
[36] (1995) 184 CLR 163.
[37] (2013) 249 CLR 332.
[38] (2013) 249 CLR 332, 348 at [23].
[39] (2014) 220 FCR 1, 33 at [149].
So far as the onus of proving jurisdictional error is concerned,
an applicant seeking judicial review must show that the approach adopted below involved a legally erroneous view as to what it was about which the Tribunal below needed to be satisfied. The High Court made that observation in Minister for Immigration and Multicultural Affairs v Eshetu.[40]
[40] (1999) 197 CLR 611, 629 at [55].
It has been held that judicial review is concerned with whether the relevant decision was one authorised to be made rather than providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[41] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal affairs v
Peko-Wallsend Ltd[42] (“Peko-Wallsend”) and Attorney-General (NSW)v Quin[43] (“Quin”).[41] [2015] HCA 50 at [23].
[42] (1986) 162 CLR 24 at 41-42.
[43] (1990) 170 CLR 1 at 45-46.
In the context of administrative decision making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be, a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v Wu Shan Liang[44] as well as Plaintiff M64/2015.[45]
[44] (1996) 185 CLR 259.
[45] [2015] HCA 50.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[46] (“Pozzolanic”) that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
[46] (1993) 43 FCR 280 at 287.
More recently, in Minister for Immigration and Citizenshipv SZMDS[47] the High Court of Australia affirmed the observations of Brennan J in Quin[48] when it held that the merits of administrative action, as distinct from the legality of administrative action, are matters for the holder of the relevant power and for that holder alone.
[47] (2010) 240 CLR 611, 619 at [19].
[48] (1990) 170 CLR 1.
Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.[49] That said, relatively recently the Full Court of the Federal Court of Australia (Allsop CJ, Buchanan and Katzman JJ) in NBMZ[50] held that courts exercising jurisdiction under the Act need to give proper attention to the merits of the application under consideration. That means the court must “give proper, genuine and realistic consideration to the merits of the case” according to the observations of the High Court in Minister for Immigration and Citizenship v SZJSS.[51] It seems to me that a court such as this Court can give “proper, genuine and realistic consideration to the merits of the case”[52] without thereby engaging in a merits review.
[49] See Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559 at 585; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36;[50] (2014) 220 FCR 1, 33 at [151].
[51] (2010) 243 CLR 164, 174 at [26].
[52] Ibid.
Bearing in mind that this Court must not construe the Tribunal’s reasons minutely or finely with an eye keenly attuned to the perception of error[53] and also bearing in mind that this Court must give “proper, genuine and realistic consideration to the merits of the case”[54] and having regard to what I have called the proper encapsulation of the applicant’s grounds of review in this case, it seems to me I must examine the sufficiency of the Tribunal’s treatment of the applicant’s claim to persecution.
[53] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[54] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174 at [26].
How the Tribunal analysed the case
The Tribunal posed the issues for its determination in the following terms –
[W]hether the applicant has genuinely converted to Christianity and whether as a consequence there is a real chance that he would be persecuted on return to Iran or a real risk he would be significantly harmed.
[W]hether his Christian activities in Australia have become known by those in Iran and whether that would have any ramifications on his return to Iran[55]
[55] Court Book filed 19 January 2015, pp.148-149 at [22].
In using the phrase “there is a real chance that he would be persecuted on return to Iran or a real risk he would be significantly harmed”,[56]
the Tribunal applied the correct test. The “real chance” test, appropriate under s.36(2)(a) of the Act can be traced to the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs.[57] The “real risk” of significant harm appropriate under s.36(2)(aa) of the Act was considered by a five-member Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZQRB[58] (“SZQRB”) a decision of particular relevance in the factual circumstances of this case. The Tribunal recorded at [103] of its reasons that the “real risk” test imposed the same standard as the
“real chance”test.[59] That accords with the observations of Lander and Gordon JJ in SZQRB.[60]
[56] Court Book filed 19 January 2015, p.148 at [22].
[57] (1989) 169 CLR 379, 389.
[58] [2013] FCAFC 33.
[59] Court Book filed 19 January 2015 at p.166.
[60] [2013] FCAFC 33 at [246].
The Tribunal in fact addressed the applicant’s application for a protection visa under and by reference to s.36(2)(a) as well as s.36(2)(aa) of the Act. The relevant passages appeared between [107] and [111] of the Tribunal’s reasons.[61]
[61] Court Book filed 19 January 2015 at p.167.
The Tribunal devoted a significant portion of its reasons to the subject of the applicant’s alleged conversion to Christianity. That was pivotal to the Tribunal’s factual finding in relation to the applicant having a well-founded fear of persecution or a real risk of significant harm.
The relevant Tribunal findings were these –
a)the applicant’s activities in Australia associated with Christian study/worship were solely to enhance his claim for refugee status;
b)the applicant was not a genuine convert to Christianity and as such would not or would not want to practice Christianity on his return to Iran;
c)the applicant would not be considered an apostate or be at risk of being killed by any Muslim person;
d)there was no real chance the applicant would be severely harmed as a Christian convert in Iran; and
e)any fear of persecution was not well founded.[62]
[62] Court Book filed 19 January 2015, p.165-166 at [101]-[102].
The Tribunal held that there was no real chance of the applicant would be persecuted for a Convention reason in the reasonably foreseeable future and that his fear of persecution was not well founded in circumstances where –
a)he was born Muslim;
b)he lived in Germany as a child;
c)he attended church in the UK and in Australia;
d)he had been punished for holding a party at which alcohol was served;
e)he had been questioned upon returning to the UK from Iran; and
f)his Christian activities in Australia may have appeared on social media.[63]
[63] Court Book filed 19 January 2015, p.167 at [107].
Embedded in those findings was an acceptance by the Tribunal that those facts had been established in favour of the applicant. The issue thereafter became whether, in the aggregate, those facts amounted to a real chance that the applicant would be persecuted for a Convention reason and whether his fear of persecution was well-founded.
In finding that those matters did not amount to a real chance that the applicant would be persecuted for a Convention reason and in finding that the applicant’s fear of persecution was not well-founded,
the Tribunal applied the correct legal test and gave “proper, genuine and realistic consideration to the merits of the [applicant’s] case”.[64]
[64] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.
The Tribunal specifically addressed the applicant’s alternative claim under s.36(2)(aa) and found that it was not satisfied that the applicant was a person in respect of whom Australian had protection obligations under s.36(2)(aa) of the Act.
Credibility findings
The Tribunal made an array of credibility findings adverse to the applicant. As was mentioned above, this Court does not engage in a merits review. Findings of credit are matters properly for the Tribunal.[65] Those credit findings reflected the Tribunal’s views of the applicant’s veracity and whether the version of events he gave was believable in the overall. Some of the more important findings by the Tribunal bearing upon the applicant’s credibility were these -
[65] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
a)the Tribunal said that the applicant could not explain in any more detail why he was attracted to the Christian religion and appeared to know very little about the Christian faith;
b)the Tribunal said that it did not accept that the applicant’s confusion in respect of a particular issue arose from the fact that he had taken medication before the hearing;
c)the Tribunal did not accept that the applicant converted to Christianity whilst attending a house church;
d)the Tribunal did not accept that the applicant was interrogated and detained for three months or that his military service was increased by a month and that he had to do menial tasks for other soldiers because he was in a relationship with a Christian woman;
e)the Tribunal said that after the applicant claimed to have been baptised, but did not provide information on Saint Therese of the Orthodox Church;
f)the Tribunal said that the baptism certificate provided by the applicant had an orthodox cross on it which seemed unusual if the applicant had been baptised in a Protestant church;
g)the Tribunal said that it raised with the applicant the fact that it was unusual that two pastors mentioned by the applicant were Smith and Jones at a Turkish church;
h)the Tribunal said that the applicant on his own evidence had not really converted before he travelled to Turkey;
i)the Tribunal did not accept that the baptism certificate provided by the applicant was genuine with the consequence that the Tribunal placed no weight upon it;
j)the Tribunal said that the applicant, when pressed on certain inconsistencies in his evidence, avoided the questions, claiming to be insulted by them;
k)the Tribunal scrutinised the applicant’s evidence in relation to:
i)the applicant’s assertions that he had been summoned to attend the Revolutionary Court;
ii)his fiancée;
iii)his attendance at church in Australia; and
iv)his assertions of his fear upon his return to Iran.
l)the Tribunal specifically addressed the applicant’s assertion that the concept of “serious harm” was broad enough to encompass the applicant’s position of not being permitted to hold parties with music, dancing and drinking alcohol;
m)the Tribunal held that it did not accept such a proposition; and
n)the Tribunal so held that the punishment for breach of laws relating to alcohol consumption and dancing to music was “the implementation of a law of general application and the punishment (was) not persecution within the meaning of the Convention”.[66] Nor was it “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” as those terms are defined.[67]
[66] Court Book filed 19 January 2015, p.161 at [71].
[67] Court Book filed 19 January 2015, p.161 at [75].
Before me, the applicant asserted that the Tribunal did not “listen or really pay attention”.[68] The Tribunal’s reasons revealed the polar opposite. Those reasons were detailed. They addressed the important propositions advanced by the applicant. I do not accept that the Tribunal did not pay attention to the applicant. To the contrary, the Tribunal revealed in its reasons that it gave the applicant a very fair hearing. The applicant’s real grievance seems to be that he did not achieve the outcome he wanted by acquiring a protection visa.
That does not equate to jurisdictional error.
[68] Transcript of Proceedings, 8 March 2016, p.13 at line 12.
In my judgment the applicant failed to establish jurisdictional error. The burden of establishing jurisdictional error was upon him.[69]
[69] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
I dismiss the application to this Court for review and order the applicant to pay the first respondent’s costs of and incidental to this application for review.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 15 July 2016
Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 372 at [153]; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 254 at [105]; SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176 at [20]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 1005 at [73].
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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