SZJSL v Minister for Immigration
[2007] FMCA 313
•19 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 313 |
| MIGRATION – Findings of fact – whether “Wednesbury unreaonableness” involved. |
| Migration Act 1958 (Cth), ss.91R(3)(b), 424A. |
| Applicant: | SZJSL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3412 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 19 February 2007 |
| Date of last submission: | 19 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms Rachel Francois |
| Solicitors for the Respondent: | Ms Karen J. O’Flynn of Clayton Utz |
ORDERS
The application is dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3412 of 2006
| SZJSL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 20 November 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant did not file an amended application.
The applicant was born on 29 January 1981 and claims to be from and of Pakistani ethnicity and of the Christian faith (“the Applicant”).
The applicant’s parents, brother and sister remain in Pakistan.
The applicant arrived in Australia on 15 February 2000 on a temporary student visa and commenced his studies in Canberra in March 2000.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 2 May 2006. In this application he claimed (in summary):
·That in 2002 his first sexual relationship with a girl “triggered off flashbacks and horrific memories of sexual assault and abuse” (CB 54). The applicant claimed that he was abused throughout his childhood by various male servants, cousins and uncles, and that any attempt to seek police protection “would undoubtedly be rejected on grounds of being claims from the distant past” (CB 55). In addition, the applicant claimed that
Even though I confided in my father and told him that I was sexually abused for a number of years, and that some of my attackers were from among my family (uncles and cousins), my father has turned a blind eye and rejected my claims. He tries to carry on as though nothing every happened. I have been made to believe that I shall not have his protection from my attackers. (CB 67)
·That following 9/11 the applicant converted from Islam to Christianity after “growing frustrated of being associated with terrorism” (CB 56). The applicant claimed that he feared to return to his family in Pakistan, asserting that he would be “under grave threat and in extreme danger” (CB 57) “of being the subject of an ‘honour’ killing”. The applicant claimed that:
“my father has already threatened to take my life. He says that he is not prepared to support me and have an ‘infidel’ living under his roof. He has stated during our conversations that he would kill me before I had the chance for anyone to discover that I had converted to Christianity. (CB 63)
The applicant claimed that he would not be able to seek help from the Pakistani authorities because they “have little if any tolerance towards non-Muslims” and consider conversion from Islam to any other faith as “the most heinous of crimes” (CB 58-9). The applicant claimed that he would not be able to “openly and freely live life as a practising Christian” (CB 61) if he were to return to Pakistan.
·That the applicant’s bisexuality would never be accepted by his family and if he were to return to Pakistan, and that his father and brother “would not hesitate” to take his life (CB 67-68).
This application was refused by a delegate of the first respondent on
17 July 2006.
On 24 July 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 6 September 2006, at which time he maintained the claims made in his original protection visa application.
On 23 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal reached the following conclusions:
(a) Regarding the applicant’s claim of conversion the Tribunal stated:
As referred to in the Tribunal’s section 424A letter, I consider that there are good reasons for concluding that the Applicant has not told the truth in relevant aspects of his evidence. In his statement dated 30 May 2006 submitted to the Department the Applicant said that his best friend at school had been a Catholic and that he had learned some of the basic concepts of Christianity from his friend but at the hearing before me, when I had asked him what concepts he had learned, he referred to equality, love, peace, life after death, the day of judgment and resurrection. He agreed that Muslims believed in life after death as well and he said that the fundamental beliefs of Islam and Christianity were not that different. When I asked the Applicant if he had learned of any differences, he said that they believed in different ‘messengers of God’ but he said that what he had learned from his friend was that Christianity was not that different from Islam and that he could not tell me much about the differences. As the Tribunal stated in its letter, I consider that the Applicant’s evidence at the hearing before me casts doubt on his claim in his further statement dated 30 May 2006 that he learned some of the basic concepts of Christianity from his friend. (CB 231)
Although in the statement accompanying his original application the Applicant linked his decision to convert to Christianity to the events which took place on 11 September 2001, he does not suggest that he took any steps to convert until after he was detained which he said in his original application was on 5 January 2005. He said in the statement accompanying his original application that it had been after he had arrived at the detention centre that he had met a number of men who would pray and read the Bible every evening. At the hearing before me he said that this group had been led by a Fijian man named ‘Brother John’ and that it had been ‘Brother John’ who had arranged his baptism. He produced to the Department a Baptismal Certificate issued by the Grace Tabernacle Christian Centre indicating that he had been baptised on 17 March 2005. (CB 231)
When the Applicant was interviewed by an officer of the Department in relation to his application on 25 May 2006 he said that he had been to church in Australia before he had been detained but not very regularly. He said that he had attended a church ‘in the city’ in Canberra but that he did not know the name of the church or its address. As the Tribunal stated in its letter, I consider that the Applicant’s inability to recall anything about the church casts doubt on his claim to have been to church in Australia before he was detained. (CB 231)
Although the Applicant said in the statement accompanying his original application that ‘Christianity became the subject of my life and the Holy Bible, the text book’, when he was interviewed by the officer of the Department he was unable to name the first four books of the New Testament. He said that Jesus had been born in Jerusalem whereas, as the Tribunal noted, Jesus was born in Bethlehem (Matthew 2). Asked what he knew of Jesus’ life, the Applicant referred to Jesus having performed miracles and instanced walking on water and splitting the sea to allow Him and His followers to pass through the sea whereas, as the officer of the Department noted, this was Moses (Exodus 14:21). (CB 231)
At the hearing before me the Applicant said that he had not had to satisfy the Grace Tabernacle Christian Centre of his knowledge and understanding of Christianity before being baptised. He said that he did not participate regularly in Christian services at the detention centre although he said that the Hillsong Church held services there once a week. He also said that although he had a Bible he did not read it regularly and that the last time he had read the Bible had been a week before the hearing when he had had a visitor and this person had read the Bible with him. When I referred to the fact that in the statement accompanying his original application the Applicant had said that:
‘Ever since I converted and became Christian, I have often taken steps to ensure that I constantly feed my new-found faith, in order to keep it true and purely alive in my heart and soul.’
he said that this was a bit of an overstatement. When I referred to the fact that the Applicant had likewise said in the statement accompanying his original application that ‘in the detention centre I have done whatever I can to seek further enlightenment and to learn from other Christians and share the word of God and rejoice in being the true followers of Jesus Christ’, the Applicant said that since he had been moved to Stage 1 he had not done much. He said that he had not been practising and he had not been reading the Bible much either. (CB 232)
In her submission dated 18 September 2006 the Applicant’s representative asked the Tribunal to take into account:
· The fact that after the Applicant had been transferred to Stage 1 he had not been in contact with Brother John and the other detainees from the Grace Tabernacle Christian Centre in Stage 2;
· The fact that, although the Hillsong Church conducted services in Stage 1, there were no services conducted or other detainees who were members of ‘his church, the Grace Tabernacle Christian Centre’ in Stage 1;
· The Applicant’s personal issues including his past sexual abuse in Pakistan and his drug addiction, for which the Applicant’s representative suggested he had not been receiving counselling until ‘a few weeks ago’;
· The fact that the Applicant had received emotional support and assistance from his partner in Stage 1; and
· The fact that the Applicant had been receiving visits on a weekly basis from a Christian who discussed passages of the Bible with him and whose contact details had been provided to the Tribunal.
While I accept that the Applicant was cut off from contact with Brother John following his transfer to Stage 1 it is clear that he was not cut off from contact with other Christians and that he could have sought to learn from them and to feed his new-found faith, as he said in the statement accompanying his original application, if he had been sincere in these sentiments. The Applicant did not suggest at the hearing before me that he had some objection to the style of worship practised by the Hillsong Church which had influenced his decision not to attend the services which it conducts in Stage 1. Indeed, as I noted in the course of the hearing before me, it is his connection with the Grace Tabernacle Christian Centre which appears to be tenuous. Rather than it being ‘his church’, as his representative submits, it was apparent at the hearing before me that he was not aware, for example, that the church is affiliated with the United Pentecostal Church International which condemns homosexuality as a sin. He said that the Grace Tabernacle Christian Centre was not one of the groups which held services at the detention centre. The Applicant’s only connection with the Grace Tabernacle Christian Centre is that Brother John arranged for the Centre to baptise him and two other detainees. (CB 232)
I accept that the Applicant has suffered from depression and anxiety in the detention centre but, as I put to the Applicant, I consider that if the Applicant’s claimed conversion were genuine he would have sought solace in his new-found faith. The Applicant’s representative submitted that the Applicant had received emotional support and assistance from his partner but the article from ‘User’s News’ which she produced to the Tribunal after the hearing suggests that the Applicant sought solace in heroin. The Applicant’s representative suggested that the Applicant had not been receiving counselling for his personal issues and his drug addiction until a few weeks before the date of her letter but the Applicant’s own evidence at the hearing before me was that he had always had access to a psychologist although not the psychologist with whom he believed he had established a relationship of trust but with whom he had subsequently had an argument. Likewise the Applicant’s own evidence at the hearing before me was that he had been receiving treatment for his drug addiction which is borne out by the letter he wrote to ‘User’s News’ although he claimed in his subsequent article that he had not in fact been receiving treatment. (CB 233)
The Applicant’s representative said that the Applicant urged the Tribunal to contact the person to whom the Applicant referred in the course of the hearing before me who has been visiting him every week in the detention centre and reading the Bible with him. The Applicant’s representative did not provide any indication of what evidence she suggested this person could give. I accept that this person has been visiting the Applicant and reading the Bible with him. However it is apparent from the Applicant’s own evidence at the hearing before me that apart from these visits the Applicant has not been doing much to practise his claimed new-found faith and he has not been reading the Bible either. The Applicant claimed at the hearing before me that he felt under pressure from other people in the detention centre from his part of the world who he said were prejudiced against him because of his claimed conversion and his claimed sexual orientation. However on the Applicant’s own evidence this prejudice has not stopped him from forming a relationship with Mr Lorenzo and I do not accept that it would have prevented him from reading the Bible or attending the weekly services held by the Hillsong Church if he had wished to do so. (CB 233)
As I put to the Applicant in the course of the hearing before me, it does not appear that he has been taking advantage of the opportunities available to him to learn more about Christianity or to practise Christianity. As the Tribunal stated in its section 424A letter, the Applicant’s evidence when he was interviewed by the officer of the Department and at the hearing before me suggests that his knowledge and understanding of Christianity is limited and superficial and I consider that this casts doubt on whether his claimed conversion to Christianity is genuine. Having regard to the Applicant’s failure to take advantage of the opportunities available to him to learn more about Christianity or to practise Christianity and his limited and superficial knowledge and understanding of Christianity, I am not satisfied for the purposes of subsection 91R(3) of the Act that the Applicant’s conduct in joining Brother John’s group in the detention centre, in seeking baptism, in reading the Bible and attending church services in the detention centre and in telling his family in Pakistan about his claimed conversion to Christianity was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. (CB 233-4)
As the Tribunal noted in its section 424A letter, I recognise that the Applicant’s conduct in this regard predates the making of his application for a protection visa on 2 May 2006. As the Tribunal noted, however, the Applicant said in the statement accompanying his original application that it had always been his plan to remain in Australia. While acknowledging that at the time when the Applicant was detained he was still pursuing a legal challenge in relation to the decision cancelling his student visa, I consider it reasonable to conclude that he had in contemplation that as a last resort he would apply for refugee status, as indeed he did when that challenge failed. I consider, therefore, that I must disregard the Applicant’s conduct in Australia in relation to his claimed conversion to Christianity and his conduct in telling his family about his claimed conversion in accordance with subsection 91R(3) of the Act. Since I do not accept that the Applicant has undergone a genuine conversion to Christianity I do not accept that he will practise Christianity if he returns to Pakistan now or in the reasonably foreseeable future. It follows that, disregarding what the Applicant has told his family about his claimed conversion, I do not accept that there is a real chance that he will be persecuted for reasons of his real or perceived religious beliefs (his claimed conversion to Christianity) if he returns to Pakistan now or in the reasonably foreseeable future. (CB 234)
(b) Regarding the applicant’s claim to be bisexual the Tribunal stated:
Turning to the Applicant’s claim to be bisexual, as the Tribunal noted in its section 424A letter, in the statement accompanying his original application he said that he had had a number of casual relationships, some with girls and others with boys, but that he had never had ‘the courage to date boys openly in Pakistan’. He said that he was presently in a relationship with another inmate in the detention centre named Julio Lorenzo. He said that he had had a small number of casual relationships with men in Australia but that prior to his current relationship he had never been seriously involved with a person of the same sex. He said that he and Mr Lorenzo often talked about marriage. The Applicant’s representative subsequently produced to the Department a statutory declaration from Mr Lorenzo in which he said that he too was bisexual, that the Applicant had had casual affairs with men but that he had never been emotionally involved with a man as he was with Mr Lorenzo and that Mr Lorenzo and the Applicant often talked about marriage. (CB 234)
When the Applicant was interviewed by the officer of the Department in relation to his application on 25 May 2006 he said that he had never had consensual sexual intercourse with a man in Pakistan, nor had he been involved in a relationship with a man in Pakistan. He said that he had first had a sexual relationship with a man in Australia - an overseas student from Georgia - after he had been expelled from university, that the relationship had lasted for a few months and that this had been the only relationship he had had with a man before he had been detained. (The Applicant also said that he had gone to a gay nightclub called ‘Heaven’ in Canberra on two or three occasions but as the Tribunal stated in its section 424A letter I do not consider that the mere fact that someone has been to a gay nightclub on a few occasions in itself indicates that the person is bisexual or homosexual in orientation.) The Applicant said that he had had four relationships with women since he had been in Australia and that he had been in a relationship with a woman immediately before he had been detained. (CB 234)
At the hearing before me the Applicant confirmed that he claimed that he had only had one relationship with a man before he had been detained, the overseas student from Georgia. He further said that his relationship with Mr Lorenzo was the only real relationship he had had. When I asked the Applicant about his claim that he and Mr Lorenzo often talked about marriage, the Applicant acknowledged that this was not possible in Australia at the moment and he said that if he and Mr Lorenzo could stay in Australia they would and that they did not need to get married to stay together. As the Tribunal stated in its section 424A letter, this suggests to me that the Applicant’s evidence (and Mr Lorenzo’s) that he and Mr Lorenzo often talked about marriage was a contrived attempt to make their relationship appear more serious than it is. (CB 234-5)
In her submission dated 18 September 2006 the Applicant’s representative said that the Applicant did not believe that there were inconsistencies in his evidence regarding his relationships with men since arriving in Australia. She said that he had had non-sexual casual relationships with men, that his first sexual relationship had been with the overseas student from Georgia and that his first ‘real’ relationship had been with Mr Lorenzo, ‘meaning that [the Applicant] and Mr Lorenzo have discussed marriage and are making plans to spend the future together’. The Applicant’s representative said that the Applicant reiterated that he had been bisexual before he had been detained. She said that he stated that he and Mr Lorenzo had discussed marriage but that given that marriage between persons of the same sex was not legal in Australia they would share their future together as a couple. (CB 235)
With respect, whatever deficiencies there may be in the Applicant’s understanding of the English language, I do not accept that Mr Lorenzo would have said that the Applicant had had casual affairs with men, as the Tribunal noted in its section 424A letter he had said in his statutory declaration, unless he understood this as a reference to sexual relationships. I do not accept that, when the Applicant claimed in the statutory declaration accompanying his original application that he had had a number of casual relationships, some with girls and others with boys, he was referring to non-sexual relationships, as his representative submits. I consider that there is a clear inconsistency in the Applicant’s evidence. Having regard to the inconsistency in the Applicant’s evidence regarding his claimed casual relationships with men, what I consider to be the contrived nature of his reference to talking about marriage and the fact that the only real relationship he claims to have had with a man began after he was detained on 5 January 2005, I do not accept that the Applicant is in fact bisexual in sexual orientation as he claims. I consider that his relationship with Mr Lorenzo is simply the product of the situation where only partners of the same sex are available and says nothing about his sexual orientation. I am not satisfied that the Applicant’s conduct in telling his family in Pakistan about his claimed bisexuality and his claimed relationship with Mr Lorenzo was engaged in otherwise than for the purpose of strengthening his claim to be a refugee and I consider that I must therefore disregard this conduct in accordance with subsection 91R(3) of the Act. Since I do not accept that the Applicant is in fact bisexual in sexual orientation, as he claims, and disregarding his conduct in Australia in telling his family in Pakistan about his claimed bisexuality and his claimed relationship with Mr Lorenzo, I do not accept that, if the Applicant returns to Pakistan now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his actual or perceived membership of the particular social group of homosexuals or bisexuals in Pakistan. (CB 235)
(c) Regarding the applicant’s claim of sexual abuse and drug use the Tribunal stated:
As referred to above, the Applicant claims that he was sexually abused as a child but as I put to him in the course of the hearing before me it does not appear to me that his fears that the people who sexually abused him as a child will sexually abuse him again if he returns to Pakistan now, even though he is now an adult, or that they will harm him in some other way, bear the requisite connection with one of the five Convention reasons. As I explained to the Applicant, it does not appear to me that these people will be seeking to harm him for reasons of his race, religion, nationality, membership of a particular social group or political opinion. I consider on the basis of the Applicant’s own evidence that they would be motivated to harm him as an individual. I do not accept, therefore that one or more of the five Convention reasons is the essential and significant reason for the persecution which the Applicant claims to fear from these people as required by paragraph 91R(1)(a) of the Act. (CB 235)
As I indicated to the Applicant in the course of the hearing before me, having regard to his evidence at the hearing that he is about to come off methadone I do not consider that I need to address his situation as a drug addict in Pakistan. That is to say, to the extent that ‘drug addicts’ may constitute a particular social group for the purposes of the Convention in Pakistan, I do not accept on the basis of the Applicant’s evidence that he is about to come off methadone that there is a real chance that he will be persecuted for reasons of his membership of the group of drug addicts in Pakistan if he returns to that country now or in the reasonably foreseeable future. As I noted in the course of the hearing before me, there is nothing in the evidence before me to indicate that news of the Applicant’s use of illicit drugs has made its way to Pakistan or that there is a real chance that it will do so in the reasonably foreseeable future. I do not accept on the evidence before me that there is a real chance that the Applicant will be persecuted for reasons of his past use of illicit drugs in Australia, or because of any perception that he is a drug addict, if he returns to Pakistan now or in the reasonably foreseeable future. (CB 236)
(d) Regarding the applicant’s claim of fear of persecution:
In the course of the hearing before me the Applicant also referred to an anonymous communication which he said he had been told had been sent to the German Consulate in Islamabad accusing him of planning to escape from the detention centre. He said that he had an uncle in Germany and he might have mentioned to someone that he might go there to study. While I accept that this might mean that any application which the Applicant might make in the future to go to Germany to study might be refused, I do not accept that this in itself constitutes persecution for the purposes of the Convention nor that one or more of the five Convention reasons will be the essential and significant reason for the Applicant being denied the opportunity to go to study in Germany as required by paragraph 91R(1)(a) of the Act. (CB 236)
In the information about Pakistan compiled by Amnesty International which the Applicant’s representative produced to the Tribunal on 11 September 2006 there is a statement that the Pakistani authorities may consider trying nationals who are failed refugee claimants for having spoken out against the Pakistani government. However there is nothing in the evidence before me to indicate that there is a real chance that the authorities in Pakistan know that the Applicant has applied for refugee status in Australia or that they will find this out. I do not accept, therefore, that there is a real chance that the Applicant will be persecuted for reasons of having applied unsuccessfully for refugee status in Australia (whether this claim is regarded as falling under the Convention grounds of real or imputed political opinion or membership of a particular social group such as failed refugee claimants returning to Pakistan) if he returns to Pakistan now or in the reasonably foreseeable future. (CB 236)
I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b). (CB 236)
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out grounds of review as follows:
1. The Tribunal unreasonably rejected the applicant’s claims to be bisexual as evidence of his sexual orientation, when it erred in holding(refer to Decision Record p.25 para 3) that
…I do not accept that the applicant is in fact bisexual in sexual orientation as he claims. I consider that his relationship with Mr Lorenzo is simply the product of the situation where only partners of the same sex are available and says nothing about his sexual orientation. I am not satisfied that the applicant’s conduct in telling his family in Pakistan about his claimed bisexuality and his claimed relationship with Mr Lorenzo was engaged in otherwise than for the purpose of strengthening his claim to be a refugee and I consider that I must therefore disregard this conduct…
1A. The Tribunal should have considered (i) that the applicant had stated in conversations during sessions with his psychologist at the detention centre that he was of bisexual orientation (shortly after arriving at the detention centre, long before the making of his application for a protection visa); and (ii) that though the section of the detention centre where the applicant and his partner are resident (Stage 1) comprises of a male-only population, yet the applicant and his partner are the only couple in Stage 1.
2. The Tribunal erred in holding (Decision Record pg25 para1) that
…the applicant’s evidence (and Mr Lorenzo’s) that he and Mr Lorenzo often talked about marriage was a contrived attempt to make their relationship appear more serious than it is.
2A. When asked about his claim that he and Mr Lorenzo often talked about marriage, the applicant acknowledged that this (gay marriage) was not (legally) possible in Australia at the moment and he said that if he and Mr Lorenzo could stay in Australia they would, and that they did not need to get married to stay together.
The Tribunal should have held that since marriage between gay couples is not legal in Australia, therefore the intention of marriage in itself does not constitute the seriousness of a gay relationship.
3. The Tribunal erred in holding (Decision Record pg24 para3; CB 234) that
…(The applicant also said that he had gone to a gay nightclub called ‘Heaven’ in Canberra on two or three occasions but as the Tribunal stated in its section 424A letter I do not consider that the mere fact that someone has been to a gay nightclub on a few occasions in itself indicates that the person is bisexual or homosexual in orientation).
and, in contrast (Decision Record pg21 para4; CB 231) that
When the applicant was interviewed by an officer of the Department in relation to his application of 25 May 2006 he said that he had been to Church in Australia before he had been detained but not very regularly. He said that he had attended a church ‘in the city’ in Canberra but that he did not know the name of the church or its address. As the Tribunal stated in its letter, I consider that the applicant’s inability to recall anything about the church casts doubts on his claim to have been to church in Australia before he was detained.
3A. The Tribunal should have held that the fact that the applicant claimed to have visited a gay nightclub and was able to describe it in detail was evidence of at least the possibility of the applicant being of bisexual orientation. The Tribunal unreasonably rejected the applicant’s claims to be bisexual.
4. The Tribunal erred in holding (Decision Record pg 17 para4; CB 227) that
…The Tribunal stated that the applicant’s evidence… suggested that his knowledge and understanding of Christianity was limited and superficial and that it cast doubt on whether his conversion to Christianity was genuine…The Tribunal stated that I might conclude…that I was not satisfied that the applicant’s conduct…about his claimed conversion to Christianity had been engaged in otherwise than for the purpose of strengthening his claim to be a refugee.
4A. The Tribunal should have held that the applicant’s conduct in regard to joining a Christian group (before converting to Christianity) in the detention centre, in seeking baptism, in reading the Bible and attending church services in the detention centre predated the making of his application for a protection visa on 2 May 2006.
The Tribunal should have considered that the applicant had faced a series of difficulties whilst in detention, particularly since his transfer to Stage 1. The applicant had had ongoing depression prior to coming into detention. Poor psychological state coupled with a harsh environment posed significant hindrance in the applicant’s ability in participating in Christian practices on a regular basis and/or to learn more about Christianity.
5. The Tribunal erred in holding that the applicant did not hold a genuine fear of being persecuted and was not at a real risk of being harmed and/or persecuted by reason of (i) his sexual orientation; and (ii) his Conversion to Christianity, if he returned to Pakistan now or in the reasonably foreseeable future.
6. The Tribunal erred in holding that relocating to another part of Pakistan would be a feasible option for the applicant. The Tribunal erred in holding that the applicant’s father/family would not seek out the applicant, if he were to relocate to another part of Pakistan.
Considering the claims in order
Ground 1: The Tribunal unreasonably rejected the applicant’s claims to be bisexual.
The Court holds that that was a finding of fact which is not open to review in these proceedings.
Ground 1A: This ground complains that the Tribunal should have reached a different finding as to his bisexuality after considering the evidence.
The Court holds that the findings of fact of the Tribunal were properly open to it on the material before it, and are not open to review.
Ground 2: This ground complains that the Tribunal erred in a finding of fact that talk of marriage was a contrived attempt to make their relationship appear more serious than it is.
The Court holds that to be a finding of fact properly open to the Tribunal and not subject to review.
Ground 3: This ground complains that the Tribunal erred in a finding of fact
that the mere fact that someone has been to a gay nightclub…[does not] indicate that the person is bisexual or homosexual;
“and, in contrast, found that the applicant’s inability to recall anything about the church casts doubts on his claim to have been to church in Australia before he was detained.”
The Court holds that these findings of fact were properly open to the Tribunal and are not subject to review.
Ground 3A: This ground complains that the Tribunal unreasonably rejected the applicant’s claims to be bisexual.
The Court finds that the rejection was a finding of fact properly open to the Tribunal and is not subject to review.
Ground 4 claims that the Tribunal erred in its finding of fact that the applicant’s knowledge and understanding of Christianity was limited and cast doubts on whether his conversion to Christianity was genuine.
The Court finds that that finding was properly open to the Tribunal. This ground complains also about the finding of the Tribunal that his claimed conversion to Christianity had not been engaged in otherwise than for the purpose of strengthening his claim to be a refugee, and reference is made to s.91R(3)(b).
The Court holds that such finding was open to the Tribunal and it was correct to disregard that conduct in Australia under s.91R(3)(b). There was no error of fact or law.
Ground 5 complains that the Tribunal erred in finding as a fact that the applicant did not hold a genuine fear of being persecuted and was not at real risk of being harmed on return to Pakistan because of (i) his sexual orientation and (ii) his conversion to Christianity.
The Court holds that these findings of fact were properly open to the Tribunal.
Ground 6 complains that the Tribunal erred in its finding of fact that relocating to another part of Pakistan would be feasible.
The Court finds that the Tribunal recorded no such finding in its decision or considerations.
Relevant findings by the Tribunal in its decision are as follows:
…there are good reasons for concluding that the Applicant has not told the truth in relevant aspects of his evidence. (CB 231)
I consider that if the Applicant’s claimed conversion were genuine he would have sought solace in his new-found faith. (CB 233.2)
I am not satisfied for the purposes of subsection 91R(3) of the Act that the Applicant’s conduct in joining Brother John’s group in the detention centre was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. (CB 233-4)
Since I do not accept that the Applicant has undergone a genuine conversion to Christianity I do not accept that he will practise Christianity if he returns to Pakistan…It follows that…I do not accept that there is a real chance that he will be persecuted for reasons of his real or perceived religious beliefs…if he returns to Pakistan…(CB 234.3)
Having regard to the inconsistency in the Applicant’s evidence… I do not accept that the Applicant is in fact bisexual…(CB 235.5)
I do not accept that, if the Applicant returns to Pakistan…there is a real chance that he will be persecuted for reasons of his actual or perceived membership of the particular social group of homosexuals or bisexuals in Pakistan. (CB 235.8)
I am not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan. (CB 236).
The Tribunal concluded there was not a real chance that the applicant would be persecuted for reason of his membership of a group of drug addicts (CB 236).
The Tribunal concluded that it did not accept that there is a real chance that the applicant will be persecuted for reasons of having applied unsuccessfully for refugee status in Australia (CB 236).
The Court finds no error of law and holds that all of those findings of fact were properly open to the Tribunal on the material before it; and that “Wednesbury unreasonableness” is not involved.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Mary Giang
Date: 13 March 2007
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