MZYRS v Minister for Immigration

[2013] FCCA 747

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYRS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 747

Catchwords:
MIGRATION – Application for judicial review of Independent Merits Reviewer decision – all grounds related to treatment of applicant’s alleged conversion to Christianity – whether Reviewer imposed arbitrary standard of knowledge – whether evidence on which Reviewer could make findings of fact.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
Re Minister for Immigration and Multicultural Affairs [2003] HCA 30

Applicant: MZYRS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1612 of 2012

Judgment of: Judge Burchardt

Hearing date: 26 April 2013

Date of Last Submission: 26 April 2013

Delivered at: Melbourne

Delivered on: 12 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Smallwood

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Horan

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1612 of 2012

MZYRS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of an Independent Merits Reviewer (“the Reviewer”) dated 15 May 2012.  The amended application filed on 5 April 2013 lists three grounds of application.  They all relate to the applicant’s claim to have adopted the Christian religion and the way in which the Reviewer dealt with this issue.

2. For the reasons that follow, I do not think, contrary to the applicant’s submissions, that the Reviewer fell into jurisdictional error and it follows that the application will be dismissed.

Background – uncontroversial facts

1. What follows is distilled from the written submissions of the parties and the materials in the Court Book (“CB”). 

2. The applicant is a citizen of Iran, who arrived in Australia as an offshore entry person on 3 September 2010.  His age is not known with certainty but all those who have examined his affairs accept that he was, at least at that time, legally not of age.

3. The applicant’s reasons given for leaving Iran at his unauthorised arrival interview are set out at CB20.  He claimed that he had left because his father was addicted to the drug Ice, and that his father beat him and otherwise mistreated him.

4. At CB28, the claims relating to his father are repeated.  The applicant also claimed that because he left Iran on a false passport he would be in trouble if he returned.

5. At CB51-53, the applicant’s statement is set out.  This repeats the assertions made about his father, but also adds assertions that his father had been politically active by distributing poems which spoke out against the government.  The applicant asserted that in about July 2010, he and his father were arrested by the Basij because the latter found a bundle of leaflets.  He asserted that he had been released the next day, but his father was in jail for approximately two and a half months.

6. The applicant claimed to face serious harm if returned to Iran because he had failed to attend a summons to attend court.  He also claimed harm because he used a false passport to leave the country.

7. Most tragically for the applicant, his father subsequently died and his death certificate is at CB92-93. 

8. The Refugee Status Assessment (“RSA”) Record decision runs from CB100 and following.  The officer who conducted the RSA did not accept the applicant’s claims because of various inconsistencies in his story from time to time.

9. Following the adverse RSA decision, the applicant applied for Independent Merits Review.  His agent’s submissions in support of that application are set out at CB134-139.  Relevantly, the submission said, at CB134:

   “The Case officer did not accept that the applicant’s fear was well-founded partly on the basis of concerns about the credibility of aspects of his claims.  It is our submission that the applicant’s claims are inherently plausible and that the applicant has a sufficient profile to face a real chance of serious harm if he is returned to Iran.  We will make oral submissions on the credibility issues at interview.”

10. The remainder of the submissions consisted of country information. 

11. A hearing was held before a Reviewer, which resulted in a decision on 31 August 2011.  The Reviewer did not accept any of the applicant’s claims to fear political prosecution, and the only matter of significance is that one matter not then asserted, but asserted at the hearing which has given rise to this application, was that of the applicant’s alleged conversion to Christianity.

12. On 27 March 2012, orders were made by consent remitting the matter for further hearing.  The Court noted that the first respondent accepted that the Reviewer failed to accord the applicant procedural fairness by failing to consider his claim to be subject to persecution on the grounds of his imputed political opinion.  Thereafter, in April 2012 the applicant’s representative forwarded two documents.  At CB183 there is set out the applicant’s Certificate of Baptism and at CB184 a letter from the Very Reverend Jeremy Greaves.  That letter, addressed “TO WHOM IT MAY CONCERN” and undated, asserts that the applicant had been a regular attendee at Christ Church Cathedral for the last few months, and that he had been baptised, following a preparation over a number of weeks, on 11 March 2012.  Mr Greaves asserted that he would not have baptised the applicant if he was not certain that he understood the significance of the ceremony and the promises involved. 

The Reviewer’s decision

1. The Reviewer set out an introduction as to the application and the relevant law.  No criticism has been advanced of those aspects of the decision. 

2. The Reviewer then set out the Claims and Evidence at CB191-193.  Once again, no criticism has been advanced of those aspects of the decision. 

3. At CB193-196, the Reviewer set out the record of the interview that took place by video conference with the applicant on 27 April 2012.  Although the grounds of this application criticise a number of things which it is asserted that the Reviewer did, there has been no suggestion that the record of events reported by the Reviewer is in any way inaccurate.  I note that the Reviewer and the applicant had apparently traversed all the previous matters advanced as grounding a fear of persecution before.  At paragraph 36 (CB195) the applicant revealed that he had changed his religion and become a Christian and would face death as a result. 

4. At CB195-196, the Reviewer records the questions he put to the applicant about his knowledge of Christianity, a matter to which it will be necessary to return.  The matters put to the applicant included an express notification that the Reviewer had concerns that he had only undertaken his Christian activities with a view to strengthening his refugee claims.

5. Indeed, I note that it was only 10 May 2012 that the Certificate of Baptism dated 11 March 2012 and the letter from the Very Reverend Greaves were forwarded to the Reviewer.

6. The Reviewer then set out country information at CB197-198. 

7. It should be noted that the grounds of review now advanced deal only with the way in which the Reviewer dealt with the issue of the applicant’s alleged conversion to Christianity.  The matters raised about the violence by his drug-addicted father, the imputed political opinion arising from his father’s political activities, the risk of having left Iran on a false passport, and the risk of persecution as a returnee asylum seeker from a western country are not now pressed in any way.

Ground one of the amended application - The Second Respondent imposed an arbitrary standard of knowledge in assessing the Applicant’s knowledge of Christianity by requiring the claimant to have a minimum level of doctrinal knowledge to be regarded as a Christian.

1. Although the parties disagree as to what should be made of the Reviewer’s reasons for decision, there is little dispute between them as to the applicable law.  Both parties referred me to the decision of Kenny, Rares and Buchanan JJ in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362.

2. In that case, as the headnote accurately records, the applicant professed to be a member of the Falun Gong.  The Tribunal questioned the applicant about the tenets of Falun Gong and used his answers as the basis for a finding that he had not practised Falun Gong as he claimed.  It found that his answers were concocted and said that they showed he knew almost nothing about Falun Gong.  The Tribunal did not cite any sources or material against which the respondent’s knowledge of Falun Gong was assessed, nor did it list the particular questions asked or the answers given.

3. Kenny J pointed out, at [50]:

   “The fundamental difficulty in this case is that there is no reference in the tribunal’s reasons to any material on which it based its finding that none of the first respondent’s answers were “correct” and the first respondent therefore knew “almost nothing” about Falun Gong belief. Taking the tribunal’s reasons on their face, it appears that the tribunal arbitrarily decided the first respondent’s answers were “wrong” without any logical basis to do so. Had there been any “evidence or … other material” on which the tribunal’s finding regarding the first respondent’s knowledge was based, the tribunal, aware of its obligations under s 430(1)(d), would presumably have referred to it. The inference arises that the tribunal’s decision was not based on findings or inferences of fact grounded upon probative material and logical grounds.”

4. Her Honour went on at [72] to find that:

   “… it is appropriate to infer that the tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error.”

5. Rares J reached a similar conclusion.  See his Honour’s judgment at [87] and [94] - [98]. 

6. In Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577, Jacobson J distilled four principles set out in paragraph [18] of the first respondent’s written submissions as follows:

   “(a)Where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion;

   (b)If the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion;

   (c)Where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know; and

   (d)Where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself or herself, on matters of emphasis or detail of a particular religion…the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.”

7. In SZLSP, Kenny J said at [37]:

   “I accept that a tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion …”

8. What the applicant submits here is that although the Reviewer expressly referred to the case of Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 and expressly said at paragraph [59], CB202:

   “I am conscious that it would be an error to approach the issue of professed adherence and practise by requiring the claimant to have a minimum level of doctrinal knowledge to be regarded as a Christian.”

   that, in fact, is exactly what the Reviewer did.

9. Put equally shortly, the submissions of the first respondent are that the Reviewer did what he said he did.

10. The Reviewer’s reasons in relation to the religion issue are set out at CB202-203.  The Reviewer relevantly said:

    “... However, the claimant displayed a rudimentary knowledge of Christianity at the IMR interview that was inconsistent with his particular circumstances.  Despite claiming to read the Bible in his own language and to have attended religious services and to have had theological discussions with the clergy in Australia over a fair amount of time he displayed a fundamental lack of knowledge of key aspects of the Christian and Anglican faith.  For example, he was not able to state what any of the books of the Bible were called and he had no understanding of the Holy Trinity.  When asked about his favourite Bible stories he was only able to speak in very basic terms about stories of the virgin birth, last supper and resurrection.

    Despite claiming to have had an interest in Christianity whilst in Iran, the claimant made no efforts to pursue this for a long time whilst in Australia including a substantial period where he was in the community in Melbourne.  It was only after he had been rejected by the RSA officer and the first IMR interview that he allegedly turned to Christianity.  When I put this to him at interview he said he didn’t change his religion for this reason and he had asked the sister about it and she had given him answers that meant he believed in one God.  He said he wanted to be closer to God and that Islam pushed him away from God.  However, given his very basic knowledge of Christianity, I do not accept this explanation and find that the timing of his undertaking of Christian activities and alleged conversion indicates that he does not have any genuine interest in Christianity.”

11. It was submitted by counsel for the applicant that there was no evidence disclosed as to why it was that an understanding of the Holy Trinity was a matter that should have achieved the emphasis it did in the Reviewer’s thinking.  It was put that this brought the matter into the parameters of the observations of Kenny J in SZLSP.  It was submitted that the findings about the Holy Trinity infected all the other findings. 

12. In my view, a fair reading of the Reviewer’s decision does not produce this conclusion.  The Reviewer was faced with somebody who, as the record shows, had only a very rudimentary grasp about Christianity.  The answers given by the applicant at paragraphs [40] – [41] (CB196) seem to me to be consistent with such characterisation.  It is true, of course, that the Reviewer asked the applicant what he understood by the Holy Trinity “which was important to Anglicans.”  There was no objective evidence to support that finding, which appears to have had its origins in the Reviewer’s own perceptions.

13. Taken as a whole, however, and bearing in mind that the applicant’s alleged conversion in particular was being considered, the question about the Holy Trinity would not seem to me of itself to have been unreasonable.

14. I note further that the timing of the applicant’s alleged conversion to Christianity was entirely consistent with the findings that the Reviewer made.

15. I think that the submission of the first respondent should be accepted.  I think that the Reviewer did properly engage with the question as to whether the applicant was indeed Christian as he said he was.  A fair reading of the reasons does not suggest that the Reviewer imposed some minimum level of doctrinal awareness upon the applicant and did not require him to meet it.  Rather, as he said he did, the Reviewer assessed the applicant’s claims.  The ground is not made out.

Ground two of the amended application - The Second Respondent made a finding which was irrational, alternatively a finding for which there was no evidence.  The Second Respondent concluded that the Applicant did not have sufficient knowledge of Christian doctrine to be regarded as a credible witness in relation to his claims to be Christian, without establishing the premise that the doctrinal knowledge might reasonably be expected of the Applicant.

1. This ground raises, in many ways, very similar considerations to the first ground.  It was submitted that the findings that the Reviewer made about the Holy Trinity were to the effect that the Holy Trinity was a key aspect of Anglican faith.  These findings, it was submitted, were made on the basis of no material.  It was submitted that it was not self-evident that the Holy Trinity was a key aspect of Christian faith.

2. In my opinion, this ground takes the matter no further.  The reality is that the applicant does not appear to have heard of the Holy Trinity.  It was open to the Reviewer to find that this was a matter that could be taken into consideration.

Ground three of the amended application - The Second Respondent erred by failing to take into account evidence of the Applicant’s religious beliefs, in assessing the credibility of his religious claims.

1. Here what is said is that the Reviewer failed to consider the two documents to which I have already referred, set out at CB183 and 184, namely his Certificate of Baptism and a letter from the Very Reverend Greaves.

2. The applicant’s counsel submitted that this was a case of the sort criticised by Finkelstein J in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638, where at [27] having found that the Tribunal should have had regard to documents, his Honour said:

   “This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S 20/2002 category. It plainly did not fall into that category.”

3. The reference to Re Minister for Immigration and Multicultural Affairs [2003] HCA 30 is a reference to the observations of McHugh and Gummow JJ, where their Honours said at [49]:

   “… it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.”

4. Here what the applicant submitted was that the Reviewer made exactly the error identified by Finkelstein J in SZDGC.

5. In my view, this submission misconceives the matter.  The Reviewer did not suggest that the documentation of itself was in any way fraudulent.  The Reviewer accepted that these documents were provided.  The Reviewer said at paragraph 62 (CB202-203):

   “In making my findings, I have taken into account the baptism certificate provided and the comments of The Very Revd that he would not have baptised the claimant unless he understood the significance of the ceremony and the promises involved and unless the Very Revd was convinced about keeping his baptismal promises and embracing the Christian faith.  However, this evidence is outweighed by the above highly significant concerns that I have relating to the claimant’s credibility.”

1. This process of reasoning seems to me to be entirely open to the Reviewer.  He accepted the documents were before him, but he was not prepared to give them weight because of the findings that he made about the applicant’s conversion.  In my view, the approach of the Reviewer was well open to him.  It does not reveal jurisdictional error.

Conclusion

1. In these circumstances, the grounds of application are not made out and, as earlier indicated, the application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date:  12 July 2013