SZEIN v Minister for Immigration

[2005] FMCA 815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEIN & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 815

MIGRATION – Refugee – Review of Refugee Review Tribunal decision – jurisdictional error – Wednesbury unreasonable – procedurally unfair – manifestly unreasonable – no reviewable error.

Migration Act 1958, ss.424A, 422B, 430(1)(c), 430(1)(d)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Tin v Minister for Immigration&  Multicultural &  Indigenous Affairs [2000] FCA 1109
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
Minister for Immigration & Ethnic Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1

Applicant: SZEIN & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2750 of 2004

Judgment of: Nicholls FM

Hearing date: 14 June 2005

Date of Last Submission: 14 June 2005

Delivered at: Sydney

Delivered on: 14 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Mr. C Jayawardena

Counsel for the Respondent: Nil

Solicitors for the Respondent: Phillips Fox (Mr. J Bird)

ORDERS

1. The Application is dismissed.

2. Applicant to pay the respondent’s costs set in the amount of $4100, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2750 of 2004

SZEIN & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This judgment is based on an outline of reasons for my decision given to the parties at the completion of the hearing. The applicants’ solicitor preferred written reasons and both parties agreed (although the respondent’s solicitor stated no real preference) that I would provide an outline of reasons orally and then written reasons subsequently).

1. This is an application filed in this Court on 3 September 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 July 2004 and handed down on 12 August 2004 to affirm the decision made on 29 April 2004 by a delegate of the respondent Minister to refuse protection visas to the applicants.

2. The applicants are husband, wife and their infant child who are all citizens of India. In their application to the respondent's Department for a protection visa only the applicant husband made refugee claims. The applicant wife and their child applied as members of his family, and their claims are contained in the applicant husband's statement (CB 27 to 28) and in their application to the Tribunal, and in particular at CB 79. Both the applicant husband and applicant wife gave oral evidence to the Tribunal at a hearing before it on 21 July 2004. The applicant husband's claims were that he converted to Christianity, as a result of which his highly religious Sikh parents stopped talking to him and his wife. He claimed that his father attacked him many times with a knife, burnt his Christian books and that he was disinherited by his father and warned that he and his family would be killed if they did not cease the relationship with the Christian Church. He claimed further to have received anonymous phone calls which threatened that as he still believed in Christianity, he and his family would be killed. He feared harm from his parents, and that fanatic religious supporters of the position taken by his parents were looking for him, and that if he returns to India, especially if the BJP (a Hindu party) is in power, he would be tortured and killed. At the hearing before the Tribunal the applicant wife also made the claim that she had converted to Christianity.

3. From the Tribunal’s decision record it is very clear that the Tribunal's decision was based on the view that it took of the applicants’ credibility. At CB 115.1 the Tribunal said:

   “I consider that the evidence provided by both the applicant husband and applicant wife was entirely lacking in credibility. In my view, the applicants’ claims in relation to Christianity were fabricated in an attempt to create the profile of refugees.”

   The Tribunal sets out its reasons for this, based on its account of the hearing before it. It found that both the applicant husband and applicant wife were unable to demonstrate that they have even the most basic grasp of the Christian faith (CB 115.2). The Tribunal supported this by reference to the applicants’ inability to demonstrate any familiarity with basic Christian teachings, an inability to state what is commemorated at Easter, that they had never heard of baptism, and that had they been Christians they would have had some idea of what baptism symbolises. The Tribunal also considered it significant (CB 115.8) that the applicants have not attended church services, even though they had been in Australia for some four months. The Tribunal took the view that if the applicants genuinely considered themselves to be Christians and had faced harm in India for this reason they would have made some effort to make themselves part of the Christian community after arriving in Australia. It did not accept the applicant husband's explanation as to why they have not done this, being that he had problems earning a living. The Tribunal was of the view that the applicants had fabricated the claim of fear of persecution in India for reasons of their religion, and it was not satisfied therefore that the applicants had a well founded fear of persecution for the Convention reason of religion. As they had not claimed to fear persecution in India for any other Convention reason, and that no other reason was suggested to it on the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia had protection obligations under the Refugees Convention. (CB 116)

4. The applicants were represented by solicitor Mr. C Jayawardena at the hearing before me. Mr. J Bird appeared for the respondent Minister. I have before me an amended application filed on 18 April 2005, and the respondent’s outline of submissions filed on 6 June 2005. The hearing before me commenced with a reference to the very late attempt by the applicants’ solicitor to file and serve further submissions. Mr. Bird advised that he had only seen the submissions just prior to the commencement of the hearing. Mr. Jayawardena stated that he had served the submissions on the respondent by facsimile transmission yesterday, which I noted with Mr. Jayawardena was a public holiday. The Court had also only received the submissions from the Court registry some half hour before the commencement of the hearing. Mr. Jayawardena was reminded of directions made on 22 September 2004 that written submissions for the applicant were to be filed and served 14 days prior to the hearing. However, as Mr. Bird was content to proceed, the hearing continued. The applicants assert five grounds by way of the amended application.

5. The applicants’ first complaint is that:

   “The Tribunal made a serious Jurisdictional Error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly”

   Mr. Jayawardena referred specifically to CB 115.3 where the Tribunal said:

   “Both the applicant husband and the applicant wife were unable to demonstrate that they have even the most basic grasp of the Christian faith. The closest either applicant came to knowing anything at all about Christianity was the applicant wife's mention of Jesus Christ being the son of God"

   The applicants assert that the Tribunal failed to give any weight to what they claim to be the facts stated by the applicant husband in the written statement which was submitted with the protection visa application to the respondent's Department and in the application for review filed with the Tribunal. To the extent that this may be a claim that there is some failure on the part of the Tribunal to take into account a relevant consideration or some relevant claim made by the applicants, I can see nothing in the material before me to support such an assertion. The applicant husband, in the statement, relevantly claimed to have converted to Christianity and as a result he said that this brought him into conflict with his parents and others. The Tribunal clearly took note of these claims in its decision record (CB 108 to CB 109.1). Having found that the applicants’ claims were fabricated in relation to their conversion to Christianity, the Tribunal clearly did not need to deal in its “Findings and Reasons” specifically with each and every point raised by the applicant in his statement which flowed from the alleged conversion to Christianity. As it was clear that the entire basis of the applicants’ claims rested on the conversion to Christianity, having found that the Tribunal did not believe the applicants on this critical issue, it was clearly unnecessary for it to do anything further. In any event, no other separate claims were put forward by the applicants.

6. At the hearing before me, Mr. Jayawardena repeated the matters raised in the amended application, but was unable to add anything of substance. He submitted that the answers of the applicant wife showed that she did know something of Christianity in that she knew about Jesus Christ. As I put to Mr. Jayawardena the Tribunal’s record in this regard is very clear. He did not put any evidence to the contrary before me to dispute the Tribunal’s account of the applicant wife’s evidence before the Tribunal that showed that the wife said she became a Christian because her husband had become a Christian and did not know that much. (CB 113.8). The Tribunal’s account of the hearing clearly provides sufficient material for the Tribunal’s findings that the wife’s knowledge of Christianity was below even the most basic grasp of Christianity. In relation to the husband, Mr. Jayawardena submitted that the reason that he was unable to demonstrate his knowledge was because of his low intelligence. I will deal with that below. In relation to both applicants he submitted that they were not long standing members of the Church, they “converted themselves” and then came to Australia. The problem arose, he said, because the Tribunal asked whether they had been to church in Australia, they had not, and that was the difficulty in demonstrating their knowledge. This submission is not in accord with the Tribunal’s decision record. The applicants’ difficulty with the Tribunal clearly arose because of their inability to demonstrate a basic knowledge of Christianity, which was their central claim. An attempt to focus only on one subsequent finding of the Tribunal is to misrepresent how it has gone about its task.  The Tribunal’s finding in relation to their grasp of Christianity (their central claim) was open to it on the material before the Tribunal. The finding arising from the lack of church attendance in Australia needs to be seen in this context.  At best this ground appears to be an attempt to seek impermissible merits review. It is, of course, not the function of this Court to engage in such review. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

7. The applicants’ second complaint is that:

   “The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him”

   The applicants refer to CB 113.2 where the Tribunal states:

   “I put to the Applicant husband that I had difficulty accepting that he had converted to Christianity. The Applicant husband stated that he does not remember things that clearly. He then stated that he could remember that they throw holy water on you. I asked the applicant if he could tell me what this symbolises. The applicant husband was unable to answer the question.”

   Mr. Jayawardena through the amended application submitted that the Tribunal failed to understand that “the intelligence quotient level of the applicant husband was below that of his wife and therefore it was highly unreasonable of the Tribunal to have expected exact answers when the applicant husband had given some of the relevant answers in relation to the questions raised by the Tribunal.” It really is not clear exactly what Mr. Jayawardena is arguing here. At the hearing before me I sought clarification, and in particular whether this was an assertion that the applicant was not capable of presenting his case to the Tribunal and if so, where was the evidence to support this. Mr. Jayawardena asserted that while the applicant wife did not answer “100 per cent correctly” she at least showed that she knew something about Christianity. He said the applicant husband’s problem was that “his knowledge was not up to the mark.” As I understood Mr. Jayawardena’s argument it was that the applicant husband was of low intelligence and that this explained his inability to demonstrate his knowledge. If he is seeking to say that the applicant husband had some deficiency of intelligence that prevented him from adequately representing his case then it would hardly require any great level of intelligence on the part of the applicant husband for him to have answered even the most basic of questions about the process of his converting to Christianity. It is clear that the Tribunal was not engaging in any profound theological discussion with the applicant, and merely sought basic information, at least a description of the process of conversion that he had said had occurred.

8. In any event, I note that Mr. Jayawardena represented the applicants during the course of their application for review before the Tribunal (although he did not attend the hearing). There is nothing before me to show that he raised with the Tribunal, at any time prior to the hearing or subsequently before the Tribunal’s decision, any difficulty on the part of the applicant husband’s intelligence to be able to respond to the Tribunal's questions. The only possibly related difficulty was that raised by the applicant himself at the hearing before the Tribunal, and that is as stated by the Tribunal, that the applicant husband said that he does not remember things that clearly. The Tribunal properly dealt with this issue at CB 115.6 where in its “Findings and Reasons” it said:

   “The applicant husband claimed that he had difficulty remembering things. However, he did not suggest that he has any medical condition which adversely affects his memory. Indeed the applicant husband appeared quite capable of remembering things other than the answers to the very basic questions about Christianity. In the circumstances, I do not consider that problems with memory explain the applicant husband's complete lack of knowledge of Christianity.”

   The Tribunal clearly dealt with the issue of memory as presented to it, and Mr. Jayawardena’s attempt to now introduce a somewhat different element namely that of the intelligence of the applicant husband is totally without any evidentiary basis before me. Beyond that, there is nothing in the Tribunal's decision to show that its decision was so unreasonable that no reasonable decision maker could have made it.

9. The applicants’ third complaint is that:

   “The Tribunal was ‘procedurally unfair’ and failed to comply with s.424A of the Migration Act”

   This complaint is particularised by reference to CB 116.2 where the Tribunal said:

   “As the applicants have not become involved in the practice of Christianity since arriving in Australia, I am of the view that the chance that they would do so if they returned to India is remote.”

   The applicants’ claim is that the Tribunal should have put to them any independent evidence it had that the applicants would not definitely practice Christianity if they were asked to return to India. At the hearing before me Mr. Jayawardena explained that it was not possible for the Tribunal to say that the chance of the applicants practicing their religion on return would be remote because there was no information as to what the applicants would do on return. He submitted that the Tribunal had formed an opinion, and he appeared to argue that either the opinion, or the information on which this “opinion” was based should have been put to the applicants.

10. It is clear that s.424A of the Act is concerned with information that the Tribunal receives from a third party. It is also clear from the Tribunal’s decision record that the Tribunal’s adverse findings on credibility were based on its assessment of the evidence put forward by the applicants themselves. The Tribunal did not rely on any independent information that would fall within the ambit of this section. The review conducted by the Tribunal was subject to s.422B of the Migration Act and to the extent that Div 4 of Pt 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with, then s.424A deals with information that must be given to the applicant. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason, or part of the reason, for affirming the decision under review. But clearly s.424A is concerned with knowledge of a fact or circumstance communicated to, or received, by the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be the applicants’ real complaint before me. In the case of Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109 Sackville J said:

    “It follows that a subjective determination by the tribunal that the applicant’s account is or may not be credible does not enliven the obligation imposed by s424A(1). Thus, even if the tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s424A(1).”

    There is nothing before me to show that the applicants could succeed on the ground of a breach of s.424A.

11. Although not argued in express terms, Mr. Jayawardena’s complaint could also be seen as the absence of any probative basis on which the Tribunal based its findings. Firstly, there is no evidence before me to show the Tribunal’s finding, in relation to what would likely happen on return to India was based on any independent information. It clearly arose out of the circumstances as presented by the applicants, and the view that the Tribunal took of that information. The applicant husband and applicant wife, clearly by their answers to specific questions of which church they attended in Australia, indicated that they did not attend any church.  The applicant wife is reported as having made a clear statement to that effect, and neither the applicant wife, nor applicant husband were able to say anything further other than there is a church near where they live. The Tribunal clearly put this issue to the applicants and gave them an opportunity to provide information that they practice Christianity in Australia. The Tribunal was entitled to reach a view on the answers given by the applicants that they did not practice Christianity in Australia. This, and the earlier finding that they were unable to demonstrate that they had even the most basic grasp of Christianity, were findings that were open to the Tribunal on the material before it, and provide a basis for the Tribunal to say that the chances of their becoming involved in the practice of Christianity on return to India would be remote as a result. On what was before it, it was open to the Tribunal to come to this view. The Tribunal clearly gave its reasons for this view.

12. The applicants’ fourth complaint alleges a breach of s.430(1)(c) and s.430(1)(d) of the Act. Before me today Mr. Jayawardena was unable to show how the Tribunal had failed in this regard. Section 430(1)(c) requires the Tribunal to prepare a written statement that sets out its findings on any material questions of fact, and s.430(1)(d) requires the Tribunal to refer to the evidence or any other material on which the findings of fact were based. I can see nothing in the material before me to show that the Tribunal has failed to comply with these requirements. The Tribunal's decision that the applicants did not have a well founded fear of persecution on the grounds of their religion, was essentially due to adverse credibility findings based on what the applicants themselves said. The Tribunal's findings of fact were clearly set out and the decision record shows that these findings arose out of, in great part, the applicants’ inadequate and unconvincing responses to the Tribunal's questioning about the central core of their claim that they had converted to Christianity. This is clearly set out.

1. Before me Mr. Jayawardena seemed to argue, with some difficulty, in support of this ground,  that at CB 115.3 the Tribunal said:

   “I am of the view that if the applicant husband had converted to Christianity, he would have been able to tell me whose birth is celebrated on 25 December. I consider that if either of the applicants had converted to Christianity, they would have at least heard of baptism.”

   Mr. Jayawardena’s argument, as best as it could be understood, was that the applicants gave answers to the questions raised by the Tribunal and the Tribunal accepted that they did not know about baptism. He argued that once that had been reached, the Tribunal should not have said that “they would have at least had baptism.” As I put to Mr. Jayawardena this was not what the Tribunal had said. In the context of the critical paragraph at CB 115 the Tribunal did not say that they would have “had baptism”, it said that if they had converted, which was what they both had claimed, then they would have “heard” of baptism. Even standing alone this view of the Tribunal’s is reasonable and open to it. But this must also be seen in the context of the whole of the Tribunal’s reasons. The applicants were unconvincing in a range of matters that led them to being unable to demonstrate even the most basic grasp of Christianity. Baptism was only one such factor.

2. The applicants’ fifth complaint is that the Tribunal was “manifestly unreasonable" in reaching the conclusion at CB 116.1:

   “Overall I do not accept that either the applicant husband or the applicant wife attended church meetings in India. I do not accept that they regarded themselves as Christians or that anyone else regarded them as Christians.”

   The applicants’ complaint is that the Tribunal's assessment that it did not accept that anyone regarded them as Christian was not based on any cogent evidence.

3. The basis of the Tribunal's finding in this regard clearly arises from the applicants’ assertion of the fact that they were regarded as Christians by the applicant husband's family and other supporters. It was that view of them they said that led to the fear of harm if they were to return to India. Having rejected the applicants’ claims to have converted to Christianity, which the Tribunal set out previously in its “Findings and Reasons”, and having also considered significant that the applicants have not attended church services, even though they had been in Australia for some four months, it was open to the Tribunal to make a finding on that material before it, that they were not regarded as Christians. The basis of the Tribunal’s finding was that on the evidence before it, having rejected the claims of conversion to Christianity, it was clear that they, in the absence of anything contrary before it, to which it could give weight, could therefore not be regarded as Christian by anyone. Further, in support of his claims, the applicant husband submitted to the Tribunal a number of documents from various persons, which asserted that they regarded the applicants as Christians. Having rejected the documents as being contrived and the Tribunal gave its reasons at CB 116.3, the Tribunal's statement could also be seen as a logical consequence of having rejected the documents and the assertions by these persons that they regarded the applicants as Christians.

4. I should also note, although it was not raised by Mr. Jayawardena for the applicants, that the Tribunal did raise its problems with the documents with the applicant husband who had submitted them to the Tribunal. At CB 113.4 the Tribunal clearly sets out its account of the hearing with the applicant husband when it put its concerns about the documents to him, and gave him an opportunity to respond. In any event, even if the Tribunal had not done this, it is quite clear that the Tribunal's decision turned on its findings of credibility following the applicant’s attendance at the hearing before it. This is the basis of the Tribunal's decision. By the time the Tribunal came to consider the problem of the documents, the well, as to the applicant husband’s credibility had been well and truly poisoned. In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 (“S20”) and in particular per their Honours McHugh and Gummow at page 70 [49] which in relation to the Tribunal’s approach to corroborative evidence and credibility said:

   “In a dispute adjudicated by adversarial procedures, 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. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”

   Also, Justice French in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 said at [36]:

   “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.”

5. In the case before me the Tribunal clearly considered the applicants’ claims to be lacking in credibility. In relation to the documents submitted by the applicant husband, the Tribunal had already come to the strong view about the applicants’ credibility and the corroborating evidence was not able to affect this view. But in any event, the Tribunal had problems with the documents because of matters arising from the face of the documents, their presentation and format. It also thought the documents to be contrived. It did put this to the applicant husband at the hearing before it, and gave the applicant the opportunity to respond. It was in all these circumstances that the Tribunal found it could not place any weight on them.

6. The applicants also appear to argue bias on the part of the Tribunal. Mr. Jayawardena submitted that the extract of the Tribunal’s record at CB 116.1 as quoted above, shows bias. His argument at the hearing before me in relation to this point was that the Tribunal said “I do not accept that they regarded themselves as Christian” when the applicants said that they were Christians. The complaint does not go anywhere near to showing bias on the part of the Tribunal. Apart from the fact that the argument as put ignores the rest of the Tribunal’s decision record as to why it came to this view, the applicants have not put forward any other evidence whatsoever to support this assertion. An allegation of bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias required evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration & Ethnic Affairs v Jia (2001) 205 CLR 507 at [72]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim.

7. It is quite clear that the Tribunal gave the applicants the opportunity to demonstrate that they had some basic knowledge of Christianity to be able to support their claim that they had converted to Christianity. They were unable to do this because they were unable to provide basic knowledge about Christianity and how they had converted. The Tribunal found that both the applicant husband and applicant wife in their evidence were entirely lacking in credibility. This was a finding that was open to the Tribunal to make on the material before it. The Tribunal function is to make findings, including findings on credibility. This is the role of the decision maker “par excellance”: Re The minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 per McHugh J. The Tribunal gave reasons for findings on credibility. The claims of fear of harm that all flowed from the alleged conversion obviously fell away once the applicants were unable to satisfy the Tribunal that the conversion had in fact taken place. I can see no error, let alone jurisdictional error on the part of the Tribunal and accordingly the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Sybilla Waring-Lambert

Date:  8 July 2005