SZEBI v Minister for Immigration
[2005] FMCA 377
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEBI & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 377 |
| MIGRATION – RRT decision – Bangladeshi Christian claimed persecution for converting Muslims – disbelieved by Tribunal – no error in refusing applicant’s offer of more information – no error in use of knowledge of Roman Catholicism. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B(1), 424, 424(1), 424A , 424A(1), 424A(3)(b), 425, 427, 427(1)(b), 483A, Part 8
Ahmed v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 343
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 967
Li v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 179
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
| Applicants: | SZEBI, SZEBJ, SZEBK, SZEBL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2364 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 22 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr S Hegedus |
| Counsel for the Respondent: | Dr M Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
First and Second Applicants to pay the Respondent’s costs in the sum of $5000, in addition to the costs ordered on 11 November 2004.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2364 of 2004
| SZEBI & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 June 2004 and handed down on 20 July 2004. The Tribunal affirmed a decision of the delegate refusing a protection visa to a husband, his wife, and two children. As did the Tribunal, I shall refer to the husband as “the applicant”, since it was his claims upon which the other applicants relied.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In relation to a matter such as the present, that jurisdiction is conferred by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I must be satisfied that the Tribunal decision is affected by jurisdictional error before I can set it aside and order a further hearing into the matter.
The present applicant and his family arrived in Australia from Bangladesh in October 2002, and applied for protection visas on 7 November 2002. The application was accompanied by a statutory declaration in which the applicant described his involvement in the activities of the Roman Catholic Church in Bangladesh, and in particular in Dakar, and claimed to have been involved in the converting of young Muslims to Roman Catholicism. He claimed that this had given rise to adverse attention by neighbours and fanatic Muslims, which had caused him to flee the country.
His claims were elaborated in further documents provided to the Tribunal shortly before, and in the course of, a hearing conducted on 28 October 2003. The Tribunal sets out all this information and summarises it in its reasons in the following way, which counsel for the applicants accepted adequately described the substance of his claims:
He is a Roman Catholic. He was active in the affairs of his parish in Dhaka, St ZZ’s assisting the parish staff, distributing material and arranging meetings. He was a member of the parish council. He used to discuss religion with his friends and others, distributing bibles, tracts and other texts at meetings. The local community were aware of his activities. He decided to try to attract young Muslims. His activities increased and over the last 25 years [1974 to 2002] he was successful in converting many, some of whom became priests. He tried to keep his activities secret but conversions from prestigious families were viewed very seriously. His Muslim neighbours found out. They stopped talking to him and told others. In about 1998, those local fanatical Muslims stopped him going to church. They said that if he stayed in his house they would kill him. They threatened his family and tried to hit them. The threats included kidnapping his children unless he left his house. He left home and some influential bishops helped him to find safety. When he returned home, the threats continued and on the advice of his church he left Dhaka for another district where he converted some very poor Hindu people. He returned home in 2000 and until September 2001 continued his religious work with lower class people in various parts of the city. He was soon well known throughout the city. Fanatical Muslims heard. They attacked the church and his home with a bomb and tried to burn it down. He was not at home. They threatened the family and hurt his wife, who required medical treatment. They declared him a threat to Islam and tried to kidnap his children and issued a Fatwa against him, calling on true Muslims to kill him. He believed his enemies were like the Taliban in their extremist views and followers of Osama bin Laden. The police stood by and took no action. He had visited India to see if he could find safety. Attacks on Christians in India convinced him otherwise. He tried seeking refuge with the missions of other countries in Dhaka without success. To avoid the death threat, he left Bangladesh illegally, bribing immigration and police. In Australia he has also been threatened by telephone. He was told to leave Australia without delay or he will be killed.
No argument is made in the present proceedings that the Tribunal failed to address all or any of the claims made by the applicant. The challenge is based upon two aspects of the Tribunal’s reasoning by which it rejected those claims. It did so based on general findings that the applicant was not a credible witness. The Tribunal explained its approach at the start of its consideration:
As there were significant inconsistencies between his primary application, his statement in support and his later oral evidence, an early finding is required on his credibility.
The Tribunal then illustrated the inconsistencies that it found in relation to numerous aspects of the applicant’s detailed claims. It also pointed to further inconsistencies under several headings and in relation to several particular elements in the applicant’s claims. However, it is important to understand that the Tribunal’s ultimate conclusion, that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, was founded upon a cumulative and overall view of the applicant’s credibility.
The basis for that finding included its findings in relation to two affidavits which had been tendered by the applicant shortly before the hearing as corroboration of his conversion activities, and also upon a consideration of some discussion in the course of the hearing that the Tribunal had with the applicant concerning his knowledge of the tenets of his faith.
I shall return to these two aspects because they were the focus of the grounds of the present application. However, before doing that I should note that after dealing with those two matters, the Tribunal specifically addressed other major components of the applicant’s claims and, for example, rejected his claims to have been threatened and his family physically harmed, that his house and family had been attacked, and that there had been threats to kidnap his children because of his religious activities. On these matters the Tribunal pointed to various conflicts in terms of time and locality in the applicant’s evidence concerning this. The Tribunal also rejected the applicant’s claims in relation to his travel documentation and exit from Bangladesh, and addressed the claim made by the applicant that he had been threatened while in Australia. The Tribunal found that claim not to be credible. None of these other findings upon which the Tribunal’s view of the applicant’s credibility was based have been challenged in the grounds of appeal argued before me.
I shall deal first with the grounds for review concerning the Tribunal’s findings in relation to the two affidavits concerning his religious conversions.
The documents in question were two affidavits forwarded to the Tribunal by the applicant’s agent on 27 October 2003, the day before the hearing. The applicant had previously not put forward supportive information to the delegate, and had only put forward some other information two days earlier. The documents sent to the Tribunal were photocopies of translations of original documents in Bengali. The original documents, in both senses, were not before the Tribunal. In the first, the deponent says:
(1)That I was born in a Hindu family. Being attracted to Christian religion, after realising its essence, and leaving my Hindu religion, I have converted myself to Christianity on 01/01/2002 by following the customs and rules of Christian religion.
(2)That [the applicant] … is known to me for a long time. He helps me regularly in understanding Christianity.
I have been influenced by his detail explanation of Christianity, and as a result, I have converted myself to Christianity.
(3)That being a free citizen of an independent country I have taken my decision to convert myself from Hinduism to Christianity and in this regard there would not be any objection from any person, however, if any, it would be void in any court of the country.
Identical language is used in the second affidavit, which is expressed in the plural as a joint affidavit by a husband and wife. There is doubt whether it was made by both of them, since the declaration only identifies the husband, who is noted as signing with “thumb seal”.
The Tribunal questioned the applicant about these documents in the course of the hearing. It refers to this in its reasons:
The Tribunal commented that it had noted the two letters from purported converts, which were unusual. First because they used near identical terms and secondly, because they were signed on the same date, third because that was the same day (2 January 2002) as the day of conversion according to the text, and fourth because one from a Rickshaw driver, not an occupation known for its literacy. The applicant assured the Tribunal the letters were genuine.
The applicant has also filed an affidavit attaching an attempt to transcribe the tapes of the tape recording of the proceedings. It is plain from reading it that it is an imperfect transcription, and at many passages the transcriber found the tape inaudible. However, in relation to the present matter the transcript shows at p.11:
T: Translator
M: Member
T: There is no religious persecution. Because the people have converted, they’re happy, for example some people are very poor, they converted to Christian, they have good money, good job. They are poor, then they converted, then they become rich. They have enough money to survive. A lot of people in (inaudible) what a steady job, because they have converted.
M: In relation to that town, we’ve got some statement that people who were persuaded to convert as a result of that. I read the 2 statements. I’m not confident by the fact that the wording is identical.
T: The wording is identical?
M: The wording is identical.
T: Some wording maybe a little bit …
M: The first 3 paragraphs are exactly the same. It doesn’t give me any confidence that these are independent statements.
T: These are common, we raise an independent statement if you like, if you want to?
M: And one of them from a rickshaw driver, rickshaw driver I think (inaudible). Isn’t it? Se we have 2 people say that you converted them. One of them was a Hindu and the other one Muslim.
T: We can get some more evidence and other documents if you …
M: No, that will do me.
T: I can probably get some more (inaudible) it’s very hard to get a hold of it.
M: I know, because there’s not much evidence on it.
T:
M: I think we call this hearing to an end at this stage.
The Member then asked some further questions before saying at p.12:
M: My job however is to see whether he meets the refugee convention and he’s claiming persecution on other religion.
I accept your argument, I accept you (inaudible) requirement but that’s not what I’m doing. Okay, well, this is really the end of it now, I’ve got enough information. I think to make the decision. I’m a bit slow at making them, so it would probably be a month before I do it. The tribunal would like to invite you to a handing down of that decision. The handing down is a pretty, really a formal procedure, you don’t have to come, but for reason it will be posted to the reasons posted for my decision okay and I think that is probably it and I’ll see if I can make it?
Thank You.
In its reasons, the Tribunal says in relation to these documents:
Supporting Documents
The documentary evidence provided by the applicant on 25 October 2003 is summarised earlier and is on the Tribunal’s file. The Tribunal accepts the statement of the YY parish priest, that the applicant and his family are regular attendees. The Tribunal also accepts, from the statement of Father XX, that the applicant was an attender at that church and was involved in church activities at St ZZ’s in Dhaka.
The documentary evidence provided by the applicant on 27 October 2003 is summarised earlier and is on the Tribunal’s file. Commenting, the two statements from purported converts suffer from these defects. First, they use near identical words, second that they are signed and dated the same day on the same day – unusual but not necessary lethal, secondly they report conversion on that same day. The Tribunal is not satisfied that there is any credible reason why a religious conversion is the subject of statutory declaration on that same day. For these reasons the Tribunal regards those documents as contrived and places no weight on them. The fact that a rickshaw driver, a person from a generally illiterate class signed one of the statements, also does not fill the Tribunal with confidence as to the veracity of those documents.
Concerning this, the following grounds of review were pleaded in the further amended application:
1.That the Tribunal exceeded its jurisdiction in failing to accord the applicants procedural fairness as required under section 424 or 424A of the Migration Act 1958 “(The Act”).
PARTICULARS
(a)The Tribunal failed to give the first applicant an opportunity to respond to the Tribunal’s concerns that written statements provided by the first applicant in support of his proselytising activities were contrived and not independent.
(b)The Tribunal failed to exercise its discretion to invite the applicants to give additional information in circumstances where it was appropriate to do so, including circumstances where the first applicant had said “We can get some more evidence and other documents …”. (Page 11, Attachment A to the affidavit of Natalie Osborne)
2.That the Tribunal exceeded its jurisdiction in failing to accord the applicants procedural fairness as required under section 427 of the Act.
PARTICULARS
(a)The Tribunal failed to exercise its discretion to adjourn the review in circumstances where it was appropriate to do so, so as to enable the applicant the opportunity to adduce “more evidence and other documents” as was suggested by the first applicant. (Page 11, Attachment A to the affidavit of Natalie Osborne)
3.That the Tribunal ignored relevant material and in so doing committed jurisdictional error.
PARTICULARS
(a)The Tribunal failed to invite the applicants to adduce more material on elements of the application which the Tribunal had called into question in circumstances where the first applicant had indicated that such material was available and in so doing ignored relevant material which may have been available.
Counsel for the applicants, in his written submissions, argued in relation to ground 1(a) that there was a failure to accord with s.424A(1) by reason of the Tribunal failing to give the applicant an opportunity to meet the Tribunal’s concerns about the documents. However, in oral submissions he conceded that by reason of ss.422B(1) and 424A(3)(b), he could not contend that there was a breach of s.424A(1) and did not press that ground. These provisions exclude a duty to invite the applicant to comment upon information “that the applicant gave for the purpose of the application” and which the Tribunal relies upon as part of its reasons for affirming the decision.
I consider that this concession is right. However, I also do not accept that the transcript shows the Tribunal failing to give a reasonable opportunity to the applicant to address its concerns about the two affidavits. I consider that the transcript shows that the Tribunal sufficiently alerted the applicant to its concerns and gave him an opportunity to address them. Instead, the applicant responded by not seeking to support the evidentiary weight of the two documents, but by offering to provide “an independent statement if you like” and “we can get some more evidence and other documents if you ... ”.
It is the Tribunal’s response to those two requests that underlies the remaining grounds set out above. Counsel for the applicants pressed these. His submission was that the Tribunal was in breach of obligations arising under ss.424(1) and 427(1)(b) of the Act. They provide:
Section 424 - Tribunal may seek additional information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Section 427 - Powers of the Refugee Review Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
(b)adjourn the review from time to time;
In short, counsel’s submission was that the Tribunal was under a duty to consider whether to adjourn the review and “get” from the applicant the further information that he offered in the above extract.
Counsel did not argue that statements by the Tribunal in the passages set out above caused a miscarriage of the proceedings by causing the applicant to be misled as to how the Tribunal was conducting its review, such as discussed in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 at [85-87] or more recently in the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 at [27]. No evidence was led from the applicant or his agent to support any such contention.
Both counsel referred me to authorities on whether the above sections can give rise to a duty on the Tribunal to consider whether to make further inquiry. Although there is some authority that a duty might arise in particular circumstances (see Li v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 179 at 192-193), the current weight of authority seems to be against that proposition (see Ahmed v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 343 at [32-39] and Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 967 at [18]). Those authorities have to be further considered in the light of more recent High Court authority in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
… whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so … The tribunal is under no duty to inquire.
In any event, in my view the Tribunal shows in the transcript set out above that it was aware that it had power to adjourn and seek further information, that it considered the applicant’s offer of more evidence, and that it decided that in the circumstances it would not exercise its discretion to obtain that information. So much, in my view, is shown by the Tribunal member saying: “No, that will do me” and “Okay, well, this is really the end of it now, I’ve got enough information I think to make the decision”.
It is true that the transcript does not show the Tribunal’s full thinking when it decided not to take up the applicant’s offer of more information, and that it does not address or refer to the offer in the course of its final reasons for affirming the delegate’s decision. However, the Tribunal was under no obligation to explain its reasons for its procedural decision in either of those places, and I am not prepared to conclude from the absence of discussion in the evidence before me that the Tribunal’s exercise of its discretion to investigate further and to adjourn has miscarried.
In terms of the pleadings set out above, I am not satisfied that the Tribunal failed to exercise its jurisdiction in relation to its exercise of powers under ss.424(1), and 427(1)(b). I am not satisfied that the Tribunal took into account irrelevant matters or ignored relevant matters bearing on the exercise of those discretions.
The submissions of counsel for the applicants at times invoked concepts of procedural fairness, which were argued to be incorporated or implicit in the provisions of ss.424 and 425 when read with the surrounding sections. However, I need not examine the legal merits of this argument. This is because I do not consider that the circumstances shown in the transcript gave rise to any obligation based on concepts of fairness for the Tribunal to adjourn its hearing or its review to give the applicant a further opportunity to put forward more affidavits or other evidence of his conversions.
I shall now turn to the second area of the grounds of review argued before me. This concerned further conclusions by the Tribunal as to the applicant’s claims to have been actively converting Muslims in Dhaka, based on its assessment of his religious knowledge.
In the applicant’s original statutory declaration, he said:
4.I have been actively organised various religious activities in our local church at Dhaka, Bangladesh. My community people, mostly Muslims, were aware of my activities in this concern. I was doing those activities to attract young Muslims to Christianity and the local people noticed most of my activities.
5.I usually explain the ideology and the morality of overall Christianity in several public occasions. I often distribute the “Holy Bible” and books on “Christian study”. Naturally, as I was interested from my boyhood, I was heavily influenced by the manners and the aesthetic beauty of the Roman Catholicism and the Christ (peace and blessings of God be upon him) and decided to convert young Muslims from Islam to Roman Catholic.
6.During the last 25 years, I had been able to attract many Muslims who had later been converted as a Christian and was Baptized. Even some of them have been ordained to the office of priest in the Roman Catholic Church of Dhaka. Initially, I tried to maintain my conversion activities secret. Conversion from a prestigious Muslim family as well as from a nice occupation/social position is still an uncommon phenomenon in Bangladesh. However, some of my neighbours got the news and started taunting to me. My Muslim neighbours stopped talking to me and forced me to attend religious activities at local church.
The Tribunal discussed these paragraphs with the applicant at several points in the course of the hearing, and summarised its discussion:
Referring to his statement, the Tribunal observed that he had had said that he had organised religious activities in his local church and that his work was known in his community. Later in the statement he said he had to work in secret. Why? He said that was working to attract young Muslims and the local people became more concerned and did not approve.
The Tribunal asked a number of questions about the Parish. The Tribunal asked whether the Father WW, who signed the letter from the VV Church in Dhaka, was related to him. He said ‘No’. It was a relatively common surname. The applicant said that there were four priests for the Parish, under Father UU. There were also nuns. The Tribunal observed that, in a big city parish with that number of clergy, it would be unusual for a lay person like himself to be engaged directly in conversion. What parish work, specifically, did he do? He said he was a member of the Parish Council. He helped to hand out material and with arranging meetings, which he attended. That, said the Tribunal, was administrative not convert-making work. He was asked whether he had ever been asked to preach or speak at public meetings on the faith or at schools. He said ‘No’. He had met however often with a group of his friends who were interested in learning more about the religion. They had attended public meetings together, with other non-Catholics.
The Tribunal asked him about some of the phrases and terms used in relation to religion in his statement. He had said that he distributed the ‘Holy Bible’. The Catholic Church did not do this, preferring instead to teach from that book, rather than having individuals interpret it. He had written ‘the Christ (peace and blessings of God be upon him), which was a Muslim rather than a Christian blessing; Jesus being a prophet in Islam, and, being God in Christianity, would not bless himself. He had said that Muslims were converted as Christians and Baptised, which was an odd phrase, as the act of conversion is baptism and until that ceremony, a person is not admitted to the Church. The Tribunal commented that he had said that the Muslims called him an atheist, which was also odd, as Christians were not atheists to Muslims. Would the applicant comment?
He said that he had distributed bibles to his close friends, who wished to discuss religion. He had handed out more widely books on the Story of Jesus. In the phrase about the Christ, Jesus was being blessed by his father, God. The Tribunal commented that that explanation was not consistent with the basic Christian doctrine of the Blessed Trinity; God being three deities in one, all being equal. He said, in answer to another question, that he knew the place of Baptism in conversion, he was just emphasising.
The transcript in relation to this discussion is not satisfactory, but it includes the following at p.6:
T: Translator
M: Member
M: The next thing you say in there, you say Christ, Peace and Blessings of God upon him, in the statement in here. That’s in fact a Muslim phrase, isn’t it? Because why would God, Jesus Christ, want the blessings of God on himself. The phrase that I can understand from a Muslim, not from a Christian phrase.
T: Because Jesus is the Son of God, so he blessed his father and her (inaudible) like human is a human and he teached the old peoples about Christianity so that’s why, that’s to his son, the Jesus.
M: I hear you. I mean he did say, for example, its not Christ would pray to God the Father. But Christ as one of the trinity doesn’t pray to himself. That’s what I’m saying, is that too hard?
T: A little bit.
M: I can go on without doing it. The next time, I find it an odd phrase for a Catholic to use that’s all. Now in the next paragraph you say initially I tried to maintain my conversion activities a secret, in paragraph 6. Is that correct?
T: Yes.
In its reasons the Tribunal makes this assessment::
Religion
Turning to the applicant’s specific claims, from the statements of the two priests the Tribunal accepts that the applicant is now and has been in the past, a practising Roman Catholic. His answers to the Tribunal’s questions however showed that he has a poor knowledge of the tenets of its faith; for example the Muslim blessing he invoked and his explanation of it, which shows he does not understand the basis doctrine of the Blessed Trinity, his ignorance of the role of Baptism, and his account of distributing bibles.
In his oral evidence he said that his Dhaka parish had four priests and some nuns. With his poor knowledge of his faith and the other resources available in the parish, the Tribunal does not accept that he would have been used (indeed allowed) to convert Muslims in Dhaka or elsewhere for 25 years as he claims. As to his conversion activities away from Dhaka, elsewhere, the Tribunal has rejected the documents which support those conversions.
The grounds for review pleaded in the further amended application in relation to this matter were:
4.That the Tribunal took into account irrelevant considerations and/or asked itself wrong questions and in so doing committed jurisdictional error.
PARTICULARS
(a)In rejecting the first applicant’s claim that he distributed Bibles (see page 25 of the decision of the Tribunal), the Tribunal considered the fact that the first applicant had said, “Christ … Blessings of God upon him” (see page 6, Attachment A to the affidavit of Natalie Osborne). The Tribunal considered that phrase in the context of the Tribunal’s own understanding of religious practices to make the statement that “Christ would [not] pray to God the Father” (page 6, Attachment A to the affidavit of Natalie Osborne). The Tribunal was not entitled to take such considerations into account and/or should not have used the form of the first applicant’s prayer as a means for determining that the first applicant had a “poor knowledge of the tenets of [Roman Catholic] faith” (page 25 of the decision of the Tribunal).
5.That the Tribunal took into account irrelevant considerations in a manner that was manifestly unreasonable.
PARTICULARS
(a)In considering that “Christ would [not] pray to God the Father (see above) the Tribunal exercised an illogicality that is directly in contradiction with the tenets of Roman Catholicism as espoused in the texts of the Scriptures. It is clear from the Scriptures that Christ, in human form, often prayed to God. (See for example the Gospel of Luke (King James Version), chapter 22 at verse 42 where Jesus said, “Father, if thou be willing, remove this cup from me: nevertheless not my will, but thine, be done”). The Tribunal has thus either applied knowledge of its own in a matter that is manifestly unreasonable, or has made inferences and assumptions based on a lack of understanding of the religious matters in question in circumstances where the making of such assumptions in the absence of any factual basis for so doing is manifestly unreasonable.
I do not accept these challenges to the Tribunal’s use of its own knowledge of Christian practices nor to its reasoning based on its questioning of the applicant of his knowledge. I consider it was open to the Tribunal to test the applicant’s claims by questioning him upon his knowledge of the area in which he claimed to be familiar, that is, the tenets and practices of the Roman Catholic Church.
Whether the Tribunal’s questioning reveals that the Tribunal itself had an imperfect knowledge is not a matter which I need to make findings upon, unless I am persuaded that the transcripts and Tribunal’s reasoning reveals such an imperfect knowledge as to give rise to irrationality and unreasonableness affecting its ultimate conclusions (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9], [34-37], [81], [128], [137]; and Minister for Immigration v SGLB (supra) at [38]).
I am far from being satisfied as to this in the present case. I consider that it was open to the Tribunal to rely upon its assessment of the applicant’s responses as set out in the above evidence, and to conclude that they showed a “poor knowledge of the tenets of its faith”. I do not consider that the Tribunal took into account irrelevant considerations, nor that it reached a decision which was “manifestly unreasonable”.
Moreover, I accept the submissions for counsel for the Minister that any errors in the Tribunal’s assessment of this evidence would not give rise to jurisdictional error affecting its ultimate conclusion. That ultimate conclusion, based as it was on credibility, relied upon numerous factors, most of which were unrelated to the Tribunal’s assessment of the applicant’s claims about conducting conversions. Even within the Tribunal’s conclusions in relation to the applicant’s claims about conversions, the Tribunal’s use of its religious knowledge played only a minor part.
For the above reasons, I do not accept any of the grounds of review that were argued in relation to this aspect of the Tribunal’s reasoning.
I therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the first and second applicants to pay the respondent’s costs in the sum of $5000, in addition to the costs ordered on 11 November 2004.
I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 April 2005
0
8
0