MZZLY v Minister for Immigration & Anor
[2015] FCCA 133
•23 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZLY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 133 |
| Catchwords: MIGRATION – Claimed failure on part of the Refugee Review Tribunal to consider an integer of the Applicant’s claim – consideration of the Applicant’s religious practices in Australia in context of s.91R(3) of the Migration Act 1958 and complementary protection claims – satisfied Refugee Review Tribunal did consider if the Applicant was a genuine convert and was likely to practice Christianity if returned to Iran – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3) |
| Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts and Anor [2011] FCAFC 59 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | MZZLY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 802 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 11 December 2014 |
| Date of Last Submission: | 11 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Townsend |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Application filed 5 June 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 802 of 2013
| MZZLY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the
Refugee Review Tribunal (“the Tribunal”) of 1 May 2013.[1] The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa.
[1] Court Book filed 3 September 2013 at pp.225-248.
Background
The Applicant is an Iranian citizen who entered Australia in
January 2012. On 14 April 2012, he made an application for a protection visa.[2] On 14 April 2012, the Applicant was interviewed by a delegate of the Minister and, on 25 May 2012, the delegate issued a decision refusing to grant the visa.[3]
[2] Ibid at pp.30-59.
[3] Ibid at pp.137-149.
On 1 June 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision.[4] On 6 July 2012, the Applicant’s representative lodged with the Tribunal submissions and other documents.[5] On
5 September 2012, the Applicant appeared before the Tribunal to give evidence and was assisted by his representative. On 18 September 2012, the Applicant’s representative lodged further submissions and documents with the Tribunal on his behalf. [6]
[4] Court Book filed 3 September 2013 at pp.151-156.
[5] Ibid at pp.162-206.
[6] Ibid at pp.218-221.
The Tribunal handed down its decision on 1 May 2013[7] and the Applicant lodged this application for review on 5 June 2013.
[7] Ibid at pp.225-248.
The Applicant’s claims
The Applicant claimed to fear persecution on:
·First, the grounds of his religion – he claimed to have been a Muslim who had converted to Christianity – and;
·Second, on the grounds of imputed political opinion – as a failed asylum-seeker.
The Applicant’s claims with respect to the first of these may be summarised as follows. The Applicant first began to question Islam after the reaction by the government to protests following the 2009 presidential elections. In early summer 2011, his son was suffering from health problems which doctors could not diagnose. The Applicant went past a church and asked Christ to treat his son. He was approached by a Christian who gave him the address of a secret Christian church. The Applicant’s son recovered.
The Applicant claimed that he and his wife attended meetings at the church and, in September 2011, invited church members to their home. After they left, the Basij raided his house and detained him overnight. He was told not to hold any more meetings at his home with Christians. After this he received threatening phone calls and his car was damaged.
The Applicant claimed that he returned to the Church where he was asked to take books to another secret church. While he was there he was caught by five Basij who accused him of distributing Christian materials. The Applicant managed to escape and fled on foot. He visited a friend who helped him fly to Indonesia via Dubai from where he came to Australia.
The Applicant claimed to have attended Christian meetings, bible classes and discussion groups while in detention. Since his release he had attended church services and bible classes and was baptised[8] on
13 June 2012.
[8] Court Book filed 3 September 2013 at p.170.
The Tribunal’s decision
The Tribunal considered that the Applicant’s claims in relation to his Christian conversion “lack credibility, and are not based on truth at all”.[9] The Tribunal set out its reasons for reaching that conclusion at paragraphs 88-91 of its decision.[10] The Tribunal rejected the Applicant’s claims to have:
·Rejected Islam;
·Converted to Christianity after the recovery of his son from an illness;
·Attended an underground house church;
·Hosted a Christian meeting at his home;
·Associated with Christians distributing bibles illegally in Iran; or
·Had any other involvement with Christian groups in Iran.[11]
[9] Ibid, p.241 at para.87.
[10] Ibid at pp.242-244.
[11] Ibid pp.244-245 at para.92.
As a result of these findings, the Tribunal rejected the Applicant’s claims:
·Of past harm at the hands of the Basij;
·That his house had been raided by the Basij;
·That he had received threats or had his car vandalised;
·That he was present at a Basij raid but had escaped; or
·That the Applicant had left Iran to avoid further harm.[12]
[12] Court Book filed 3 September 2013, p.245 at para.93.
The Tribunal did not accept that the Applicant had an adverse profile in Iran. For this reason it did not accept that there was a real chance of him being persecuted for any reason associated with his having sought asylum in Australia.[13]
[13] Ibid at p.245 at para.94 and p.247 at para.104.
The Tribunal accepted that the Applicant had been baptised as a Christian in Western Australia but was not satisfied that he had engaged in any Christian activity in Australia other than for “the purpose of strengthening his claims to be a refugee”.[14]
[14] Ibid, p.246 at para.98.
Grounds for review
The Applicant raises two grounds for review in the amended application:
Ground 1: The decision of the Second Respondent was affected by legal error, in that the Second Respondent failed to properly consider a relevant consideration, being a claim or integer of a claim made by the Applicant.
…
Ground 2: The decision of the Second Respondent was affected by legal error, in that the Second Respondent failed to properly consider a relevant consideration, being evidence which was essential to the exercise of the Tribunal’s function of review under s414 of the Migration Act 1958 (Cth) (“the Act”).[15]
[15] Amended Application filed 13 November 2014 at p.3.
The Applicant’s contentions
The Applicant submitted that both grounds substantially turned on the same issues. The Tribunal failed to take into account, for the purposes of the complementary protection criteria, the participation by the Applicant in Christian activities in Australia. The Tribunal considered the Applicant’s participation in Christian activities, for the purpose of the application of the Refugee Convention criteria, and determined that s.91R(3) of the Migration Act 1958 (Cth) (“the Act”) applied.
Section 91R(3) of the Act has no application to determining whether the complementary protection criteria apply.
The Applicant put forward a number of propositions:
·The Applicant’s claims included that he “faced a real chance of persecution”[16] or significant harm as a Christian convert should he return to Iran;
·His claims were supported by his Christian conduct in Australia;[17]
·It was “mandatory for the Tribunal to consider that conduct”;[18]
·The standard for consideration required of the Tribunal was that it give the conduct “active intellectual consideration”;[19]
·The Tribunal “did not give the said conduct the requisite consideration”;[20] and
·Other findings of fact made by the Tribunal:
[D]id not subsume its obligations to make findings in relation to that conduct, that is, other credibility findings in relation to [the Applicant’s] conduct in Iran didn’t excuse the Tribunal from its obligation to properly intellectually engage with the conduct here.[21]
[16] Transcript of proceedings of 11 December 2014, p.3 at line 8.
[17] Ibid at lines 14-15.
[18] Ibid at lines 15-16.
[19] Ibid at lines 16-17.
[20] Ibid at lines 18-19.
[21] Ibid at lines 19-22.
The Applicant referred to the evidence of the Applicant’s Christian activities in Australia:
·At pages 131-132 of the Court Book where the Applicant’s representative put to the delegate that the Applicant was attending Christian classes and church and was contemplating being baptised;
·At page 146 of the Court Book where the delegate mentions the activity in the context of considering s.91R(3) of the Act;
·The certificate of baptism dated 13 June 2012;[22]
·The Tribunal’s summary of the Applicant’s actions in relation to his Christian faith at paragraphs 61-63 of its decision;[23] and
·
Material from the Dandenong Presbyterian Church provided
post-hearing.[24]
[22] Court Book filed 3 September 2013 at p.170.
[23] Ibid at p.237.
[24] Ibid at pp.216-217 and p.221.
The Applicant submits that there is “evidence of conduct in Australia which goes to the proposition that he was a genuine convert”.[25]
[25] Transcript of proceedings of 11 December 2014, p.4 at lines 28-29.
The Applicant submitted that the conduct in Australia “is capable of demonstrating a risk to the applicant on return to Iran”,[26] irrespective of what the Tribunal might say about the account of events he gave of his conversion in Iran. It may demonstrate that he had a genuine conversion to Christianity even if the Tribunal disbelieved that “that conversion predated his arrival in Australia”.[27] The question the Tribunal needed to answer was on the basis of his conduct in Australia would he go back and conduct himself as a Christian in Iran[28].
[26] Ibid, p.4 at line 39.
[27] Ibid at line 42.
[28] Ibid, p.5 at lines 21-22.
The Applicant submitted that what the Tribunal was required to do for the purpose of s.91R(3) of the Act was not enough to discharge its obligation. It was required to engage in an active consideration of the issue before it could come to a concluded view on the complementary protection criteria.[29]
[29] Ibid, at lines 43-45.
The Applicant referred the Court to the following passage in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts and Anor [2011] FCAFC 59 (“Bat”) in support of the submission with respect to the obligations on the Tribunal:
The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]–[59]).[30]
[30] [2011] FCAFC 59, pp.16-17 at para.44.
The Applicant then turned to how the Tribunal dealt with the issue. At paragraph 107 of its decision, the Tribunal deals with s.36(2)(aa) of the Act.[31] The Tribunal draws the conclusion that the account of events that the Applicant gave of his conversion to Christianity in Iran is not true and for that reason he is not perceived by the Iranian authorities as being an apostate. The Tribunal then goes on to say:
Taking also into account the applicant’s baptism in Australia, his church attendance and his Bible study (conduct that the Tribunal disregarded in assessing his refugee claims), the Tribunal does not accept on the available evidence that these activities put him at risk of coming to the adverse attention of the Iranian authorities or the community at large, if he returns to Iran.[32]
[31] Court Book filed 3 September 2013 at p.247.
[32] Ibid.
The Applicant submits that the paragraph does not deal with the question of his likelihood of future Christian practice in Iran. Further, paragraph 107 of the Tribunal’s decision begins with the words “[f]or the reasons above”.[33] The Applicant took the Court to paragraph 87 of the decision where the Tribunal found that the Applicant’s claims with respect to his conversion were “not based on truth at all”.[34] The Tribunal states that the factors set out in paragraphs 88-91 of its decision[35] lead to that conclusion. Those paragraphs of the Tribunal’s decision do not deal with the Applicant’s Christian activities in Australia but only what occurred in Iran. It is really only in
paragraph 97 of its decision[36] that the Tribunal deals with the Applicant’s activity in Australia and then only in the context of s.91R(3) of the Act.
[33] Court Book filed 3 September 2013 at p.247.
[34] Ibid at p.241.
[35] Ibid at pp.242-244.
[36] Ibid at p.245.
The Applicant submits that the Tribunal has not actively considered the real risk that the Applicant might suffer significant harm should he return to Iran by considering if his activity in Australia demonstrated a genuine conversion and that he would continue to worship as a Christian in Iran.
The First Respondent’s contentions
The First Respondent submitted that the starting point was that the decision of the Tribunal which should be read “fairly and as a whole”.[37] Beginning at paragraph 87 of the Tribunal’s decision,[38] there is a general finding about conversion to Christianity where the Tribunal states that it has formed a view that the Applicant’s claims in relation to his religious conversion lack credibility and are not based on truth. The Tribunal then sets out at some length the concerns it has about the Applicant’s account.[39] Those concerns, and the Tribunal’s conclusions about them, taint other aspects of the evidence. That evidence is later weighed by the Tribunal against the Tribunal’s conclusion that the Applicant’s account about what happened in Iran was not based on truth.
[37] Transcript of proceedings of 11 December 2014, p.12 at line 34.
[38] Court Book filed 3 September 2013 at p.241.
[39] Ibid, pp.242-243 at para.88.
The credibility finding was a finding of fact. The Applicant’s whole case relied upon the Tribunal accepting the genuineness of his conversion. The finding was made up front that the religious conversion claim was not true. The Tribunal makes the finding at paragraph 92 of its decision, that it rejects the Applicant’s claims about his conversion in Iran. [40] At paragraph 93 of its decision, the Tribunal rejects all related claims with respect to past harm.[41]
[40] Court Book filed 3 September 2013 at pp.244-245.
[41] Ibid at p.245.
At paragraph 95 of its decision, the Tribunal refers to the Applicant’s familiarity with Christian beliefs but then states:
Nonetheless, taking his evidence as a whole, the Tribunal does not accept that the applicant has any genuine religious conviction.[42]
[42] Ibid.
The First Respondent submits that this is a crucial finding because it flows from the previous findings and is an “overarching finding based on the Tribunal’s serious concerns about the applicant’s credibility”,[43] taking into account his activities in Iran and Australia.
[43] Transcript of proceedings of 11 December 2014, p. 12 at lines 3-5.
The Tribunal does not accept the Applicant’s evidence about his expressed interest in Christianity in Indonesia but accepts that he may have had some discussions about Christianity in the context of preparing to present his claims to be a refugee in Australia.
At paragraph 97 of its decision, the Tribunal considers the evidence concerning the Applicant’s activities in Australia. It makes findings of fact that these events, such as his baptism and attendance at classes while in detention did occur and that he had attended a church in Dandenong since moving to Victoria.[44] The Tribunal goes on then at paragraph 98 of its decision to find that, due to its adverse view of the Applicant’s credibility, it is not satisfied that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.[45] It therefore disregards that evidence for the purpose of determining whether the Applicant has a well-founded fear of persecution for the purposes of the Refugee Convention.
[44] Court Book filed 3 September 2013 at pp.245-246.
[45] Ibid at p.246.
While the finding that the Tribunal was not satisfied that the Applicant had engaged in religious activities in Australian other than for the purpose of strengthening his claims to be a refugee has certain legal consequences in the refugee context, it is also a finding that is relevant to the determination of the complementary protections claims. It is part of the reasons, referred to in paragraph 107 of the Tribunal’s decision as “the reasons above”[46] why the Tribunal does not accept that the Applicant has rejected Islam or converted to Christianity. Those reasons include:
·The factual findings made in paragraph 98 of the Tribunal’s decision[47] and everything that went before that including at paragraph 87 that the claims to religious conversion are not based on truth; [48] and
·At paragraph 95 of its decision, that the Tribunal did not accept that the Applicant had any genuine religious conviction.[49]
[46] Court Book filed 3 September 2014 at p.247.
[47] Ibid at p.246.
[48] Ibid at p.241.
[49] Ibid at p.245.
At paragraph 99 of its decision, the Tribunal makes the finding that in light of its view that the Applicant is not a genuine Christian and has not rejected Islam the Applicant will not be motivated to follow any religious practice that is, or would be perceived to be, Christian or
anti-Islamic. [50] While that finding is made with respect to the refugee claim, and without regard to the Applicant’s activity in Australia, it nevertheless forms part of the reasons referred to in paragraph 107 of the Tribunal’s decision even if it is not expressly stated as such. [51]
[50] Ibid at p.246.
[51] Ibid at p.247.
The First Respondent submitted that the Tribunal clearly gave detailed consideration to the claims made by the Applicant about the genuineness of his conversion. Those claims were rejected and they were rejected in both the context of the refugee claim and the complementary protections claim. The First Respondent submits that there is no certain standard to be met as to the requisite level of intellectual engagement by the Tribunal. If there is clearly some assessment of the matters and they were taken into account in a real way that is sufficient.
Conclusions
Stripped to its barest, the contention of the Applicant in this matter is that, having set aside evidence of his religious activity in Australia in accordance with the requirements of s.91R(3) of the Act for the purpose of determining his status as a refugee, the Tribunal was required to demonstrate that, in considering the complementary protections criteria, it engaged in an active intellectual process when it turned to consider if the Applicant’s engagement in religious activity in Australia might lead to a real risk that he would suffer significant harm should he return to Iran.
The Tribunal, on the Applicant’s contention, dealt with only one aspect of that consideration, being whether his activity in Australia would result in him coming to the adverse attention of the Iranian authorities; it did not consider whether his activity in Australia was evidence of a genuine conversion and that therefore there was a real risk that the Applicant would continue to worship as a Christian in Iran exposing himself to serious harm.
The Tribunal on more than one occasion in the decision makes statements that:
·The Applicant’s claims in relation to his religious conversion are not based on truth;
·His claims about his religious conversion are untruthful;
·It does not accept that the Applicant has any genuine religious conviction;
·The Applicant is not a genuine Christian; and
·The Applicant has not rejected Islam or converted to Christianity.
The Tribunal gives consideration to the Applicant’s religious activities in Australia in two contexts. In the first context, it considers those activities and is “not satisfied that he engaged in the conduct in Australia otherwise than for the purpose of strengthening his claims to be a refugee”.[52] It is implicit in that finding that the Tribunal was not satisfied that those activities were indicative of a genuine conversion. Having applied s.91R(3) of the Act for the purposes of the Tribunal’s findings with respect to the Refugee Convention, the Tribunal then goes on to consider the complementary protections criteria. The Tribunal in doing so refers to “the reasons above”.[53] Those reasons include the Tribunal’s views that:
·The Applicant’s conversion was not genuine;
·His evidence about what happened in Iran was not true; and
·It was not satisfied that he had engaged in religious activity in Australia other than for the purpose of strengthening his claim to be a refugee.
[52] Court Book filed 3 September 2013, p.246 at para.98.
[53] Ibid, p.247 at para.107.
The Tribunal then expressly takes into account the Applicant’s activities in Australia and concludes that the Applicant was not at risk of coming to the adverse attention of the authorities if he returned to Iran.
It is well accepted that:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[54]
[54] Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at p.271.
The Applicant referred the Court to a passage from the decision of a Full Bench of the Federal Court in Bat on the obligations imposed on a decision-maker. The Tribunal was clearly obliged to consider the Applicant’s claims in the context of both the refugee criteria and the complimentary protections criteria.
As the Court noted in Bat, in the absence of any statutory or contextual indication of the weight to be given to factors to which a
decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. In this case, the Tribunal had to consider what weight should be given to certain activities of the Applicant in Australia in determining whether he had converted to Christianity and therefore had a genuine fear of persecution for a Convention reason or that there was a real risk that he would suffer significant harm if he returned to Iran. It is clear from the decision that the Tribunal did not accept that he was a genuine convert based on its assessment of his credibility and gave little weight to the evidence of his activities in Australia.
Having found that the Applicant was not a genuine Christian and that he would “not be motivated to follow any religious practice that is, or would be perceived as Christian, or anti-Islamic”[55] for the purposes of the refugee criteria, it is clear from paragraph 107 of its decision that the Tribunal relied on that finding and that evidence of the Applicant’s “baptism in Australia, his church attendance and his Bible study”[56] did not convince the Tribunal otherwise.
[55] Court Book filed 3 September 2013, p.246 at para.99.
[56] Ibid, p.247 at para.107.
As the Court commented in Bat:
While a failure to include a matter in a statement of reasons may justify a court inferring, as a matter of fact, that the matter was not taken into account, such an omission is not necessarily conclusive (see Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 485). Whether that inference will be drawn in a particular case will depend on all the circumstances (see ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 205).[57]
[57] [2011] FCAFC 59, pp.17-18 at para.47.
The claim here appears to be that because the Tribunal did not expressly state under the heading Complementary protection: s.36(2)(aa) that it did not accept that after arriving in Australia the Applicant had had a genuine conversion and would not, therefore, be motivated to follow any religious practice that is or would be perceived to be Christian if he returned to Iran, that the Tribunal did not turn its mind to that issue.
Taking the decision as a whole, I do not accept that that inference can be drawn in the context of the Tribunal’s express reference to the reasons it had already given including:
·Its lack of satisfaction that the Applicant had engaged in such activity other than for the purpose of strengthening his refugee claim;
·Its findings with respect to the lack of motivation to follow any Christian religious practice in Iran; and
·Its clear view that it did not accept that the Applicant had any genuine religious conviction.
For these reasons I am not satisfied that the Tribunal fell into error by failing to consider a claim or integer of the Applicant’s claim or failed to consider a relevant consideration when it addressed the complimentary protections criteria.
I am therefore satisfied that the application should be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 23 January 2015
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