SZNRI v Minister for Immigration - [2009] FMCA 858

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 858

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNRI”.

Migration Act 1958 (Cth), ss.116, 424, 424A, 477
Migration Legislation Amendment Act (No 1) (Cth), item 7(2) of Schedule 2

Minister for Immigration & Citizenship v SZKTI & Anor [2009] HCA 30
SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515
SZLUC v Minister for Immigration & Citizenship [2009] FMCA 378
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

Applicant:

SZNRI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1426 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

17 August 2009

Delivered at:

Sydney

Delivered on:

4 September 2009

REPRESENTATION

Solicitors for the Applicant:

The applicant appeared in person with the assistance of a Farsi interpreter

Counsel for the Respondents:

Mr J Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 15 June 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1426 of 2009

SZNRI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant is a citizen of Iran. He arrived in Australia on 29 July 2006 on a Prospective Spouse (Subclass 300) visa. On 9 October 2006 his sponsor notified the Department of Immigration that she was withdrawing sponsorship of the applicant’s visa. She alleged that the applicant had assaulted her and he was arrested and charged with aggravated sexual assault. On 5 April 2007, the applicant’s Prospective Spouse visa was cancelled under s.116 of the Migration Act 1958 (Cth) (“the Act”). On 24 May 2007, the Department refused to grant the applicant a Criminal Justice Stay visa. The applicant lodged a Protection (Class XA) visa on 6 December 2007. A delegate of the first respondent refused to grant the Protection visa on 7 February 2008 and the applicant was notified of the decision and his review rights by facsimile.
In relation to the applicant’s Prospective Spouse visa, he claims that he formed a relationship with his sister’s best friend in October 2001. They began living together in Iran. Four days after he arrived in Australia, the applicant went to a church in Parramatta and felt compelled to join. In September 2006, two months after his arrival, the applicant went to St John’s Anglican Cathedral, an Iranian church also in Parramatta, and was given a bible. He claims he read the bible every day, attended bible study and Mass and tried to learn about Christianity. He attended that church from this point until he was arrested on 2 February 2007. He claims he continued his Christian activities in jail and also in immigration detention. The applicant was baptised on 23 May 2007.
The applicant believes he will be killed in Iran as a convert from Islam. He submitted three letters of support and a statutory declaration from members of different churches. The applicant’s migration agent, Mr McCrudden of Craddock Murray Neumann, submitted to the third Tribunal that s.91R(3) of the Act does not apply to the applicant because he did not practice his faith solely to further his claims for protection. Further that the applicant became a Christian when he was in Australia legally and expected to continue remaining in Australia legally based on his relationship with his former fiancée.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
The original application does not contain a ground of review but is limited to a statement that the Refugee Review Tribunal (“the Tribunal”) found that the applicant was not a Christian. He claims that if he returns to Iran his life will be in danger. The applicant was granted leave on the first Court date to file an amended application giving complete particulars of each ground of review to be relied upon. He also indicated that he wished to participate in the Court-sponsored panel advice scheme and an adviser was subsequently appointed. The panel adviser sent a letter (on the Court file) indicating that he visited the applicant at Villawood Immigration Detention Centre and provided him with preliminary written advice on 22 July 2009 and final advice on 14 August 2009. However the applicant has not availed himself of the opportunity to file an amended application, written submissions or any further affidavit material in support of his application.

The Tribunal decision

I rely on the written submissions of Mr Potts, counsel for the first respondent, as a convenient summary of the Tribunal decision. I have not made any further direct attribution as this would make the summary unwieldy. The summary is provided as background information to assist in understanding the nature of the application and not to establish any evidentiary point.
The Tribunal was not satisfied that the applicant attended church in Australia, was baptised or presented himself to others as a convert from Islam otherwise than for the purpose of strengthening his claim for refugee status (CB 159 at [118]). The Tribunal came to this conclusion based on the following reasons:
a)There was no evidence, apart from the applicant’s own assertion, that he had any interest at all in Christianity before he arrived in Australia (CB 159 at [119])
b)The Tribunal had a number of issues in relation to the applicant’s baptism (CB 159 at [120])
c)The Tribunal was satisfied that the applicant began attending church in Sydney some two and a half to three months after arriving in Australia because he had become aware that his relationship with his partner was deteriorating and that she may withdraw her sponsorship of him (CB 160 at [121]).
d)The Tribunal had issues with the truthfulness of his explanation of the deterioration of his relationship with his ex-sponsor (CB 160 at [122])
e)The applicant gave unequivocal oral evidence to the Tribunal that he slept every night his ex-sponsor’s home until the date of the alleged assault in early-February 2007. However, the police factsheet recorded that he had lived apart from her since at least late-January 2007 (CB 160 at [123])
f)Pastor Safari was not convinced by the end of January 2007 the applicant was a genuine convert to Christianity (CB 161 at [124]); and
g)The Tribunal was not satisfied that even if the applicant had taken up Christian activities in order to strengthen his claim to be a refugee that he subsequently converted (CB 161 at [125]).
The Tribunal concluded that the applicant engaged in Christian activities for the purpose of strengthening his claim to be a refugee within the meaning of the Convention, and therefore such conduct must be disregarded and a determination made of whether he had a well-founded fear pursuant to s.91R(3) of the Act (CB 161 at [126]-[127]).
The Tribunal accepted that his ex-sponsor may have told the applicant’s parents in Iran that he had been attending church in Sydney and that they disapproved of it. However, it had not been claimed that anyone may have informed the Iranian authorities (or anyone else in Iran) that he had given up his Muslim faith. The Tribunal found that the applicant had a remote chance of being persecuted in Iran for reason of religion or religious belief imputed to him (CB 161 at [129]-[130]).

Grounds of application for extension of time

In the application filed on 15 June 2009 the applicant indicated that he required an order under s.477 of the Act extending the time for making an application. The explanation given was that his English was poor and that he could not understand what steps he was required to take in the absence of legal representation. In the interests of the administration of justice, I granted the applicant an extension of time on the basis that he was being held in immigration detention and this matter needs to be resolved quickly. All the issues in respect of his application should be considered at the one time. The applicant was unrepresented and although he received panel advice, he did not appear to fully understand what steps were required to be taken to seek the extension required.
Mr Potts in his written submissions set out the key issues in respect of the time limit in s.477 of the Act. Given item 7(2) of Schedule 2 to the Migration Legislation Amendment Act (No 1) (Cth), the date of the Tribunal decision will be treated as if it were the date of commencement of Schedule 2, namely 15 March 2009: SZLUC v Minister for Immigration & Citizenship [2009] FMCA 378 at [8]. The amending Act opened a 35 day window of opportunity to apply to the Federal Magistrates Court for a review of an old migration decision, being from 15 March 2009 (the date of commencement) to 21 April 2009. Applications brought after that date require an extension of time which may only be granted if the applicant satisfies the Court that it is in the administration of justice to grant it. These proceedings were commenced on 15 June 2009, approximately 10 months after the date of the Tribunal decision of 24 July 2008. The applicant needs an extension of time in order to proceed with this application.
I acknowledge Mr Potts’ submission that no evidence has been filed in support of the application for an extension of time. I also acknowledge that at all times during the original visa application and the review process, the applicant was represented by a solicitor and migration agent. His solicitor attended the handing down of the Tribunal decision (CB 127) after he was sent notification (CB 137). Mr Potts submits that it must be inferred that the applicant was made well aware by his solicitor of his entitlement to seek review of the Tribunal decision and the time limits. His delay in bringing these proceedings is wholly unexplained. I have been encouraged by Mr Potts to find no basis on that it would be in the interests of the administration of justice to grant an extension of time. However, for the reasons I have pointed out above and to avoid any further delay in determining the status of the applicant, I intend to grant the extension of time and hear the applicant’s complete arguments in respect of this application.

Applicant’s submissions

The applicant appeared with the assistance of a Farsi interpreter although he demonstrated a reasonable understanding and command of the English language. He advised the Court that he understood most of what was said in Court but may need occasional assistance from the interpreter. The hearing proceeded on this basis giving the applicant time to make notes in order to respond to Mr Potts’ submissions.
The applicant, addressing the Court in English, said that he would be in great danger should he return to Iran because of his conversion from Islam to Christianity. He indicated that his ex-spouse and sponsor had relayed to his parents and others in Iran that he had converted and this was not favourably received. He claims that he received threats from various parties in Iran in respect of this and that he would be persecuted.
The applicant acknowledged that he had a brief conference with the panel adviser at Villawood and that he subsequently received written advice. However, he stated that he was not in a position to retain legal representation and that he was unsure of Court procedures or to present his case. His oral submissions were limited to his concern over being forced to return to Iran and identified as a person who had converted from Islam to Christianity.

Respondent’s submissions

In the absence of detailed oral or written submissions from the applicant, Mr Potts assisted the Court by reviewing the material contained in the Court Book leading up to the Tribunal decision of 11 December 2008.
It was noted that the applicant had the benefit of the assistance from a solicitor and migration agent throughout this process and to that end, his case was put with a degree of clarity not often seen in similar applications. In the applicant’s statutory declaration (CB 44), the basis of the Protection visa application was his conversion to Christianity after arriving in Australia, having originally arrived on a spouse visa. The statutory declaration indicates a surplus claim or a claim which arose from events after arriving in Australia. At paragraph [14] (CB 45) the applicant states:
About four days after I arrived in Australia, I went to a church in Parramatta. I spent about 40 minutes in the Church. When I went into the church I began to cry; I felt compelled to become a member of a Christian church.
Then at paragraph [15]:
Between this and the time I went to the Iranian church a few months later I went to church a number of times. I went to mass services just to pray. I felt a great sense of security, ease and contentment when I went to a Christian church. I never experienced this feeling attending mosques.
The applicant’s solicitor/migration agent submitted letters of support from people who knew the applicant through his religious activities in Australia (CB 55). A further statutory declaration expanded upon these claims of involvement in Christianity in Australia and was prepared with the assistance of the solicitor/migration agent (CB 59-62). The decision of the delegate of the first respondent was made on 7 February 2008 (CB 65-74). The findings of the delegate are summarised as follows:
For the reasons stated above I have formed the view that the applicant is not a genuine Christian convert and I find that his apparent conversion to Christianity is an opportunistic attempt to strengthen his protection claims. (CB 73)
The delegate’s decision led to a review application to the Tribunal on 7 February 2008 which was prepared with the assistance of the same solicitor/migration agent (CB 75-79). The Tribunal by letter of 26 February 2008 invited the applicant to appear before it on 4 April 2008 (CB 82-83). A response to the hearing invitation was forwarded by the applicant’s agent on 27 February 2008 indicated that he wished to attend and would be assisted by his solicitor/migration agent (CB 84-85). In advance of the hearing, the applicant filed detailed written submissions prepared by his solicitor (CB 86-93). Under the heading “A subjective fear” the following statement appears:
Based on the applicant’s evidence to date we submit that the Tribunal should accept that the applicant has a subjective fear of being persecuted in Iran because of his Christian faith and his membership of a particular social group in Iran comprised of people who have converted from Islam to Christianity. (CB 87)
Further supporting material was submitted from those involved in the church in Australia (CB 95-96). The solicitor/migration agent wrote to the Tribunal identifying four witnesses the applicant wished the Tribunal to take evidence from (CB 97). The Tribunal hearing report indicates that those four people did attend the hearing and gave evidence. On 23 April 2008, the Tribunal issued an “Invitation to comment on or respond to information in writing” letter under s.424A of the Act (CB 101-104). The letter was detailed and included issues such as:
a)The Tribunal had received evidence that the applicant first went to St John’s Church in September or October 2006, only after his then sponsor had told him to move out of her home and that she would not marry him (CB 102);
b)Father Safari had given evidence to the Tribunal indicating that he did not regard the applicant to be a genuine convert.
An extension of time was requested (CB 105) and granted (CB 107) with a detailed Response and supporting material forwarded to the Tribunal on 3 June 2008 (CB 108-120).
Having reviewed all the evidence in the claims, the Tribunal reached its critical reasoning at paragraph [113] of its “Findings and Reasons”:
In determining whether actions taken by [SZNRI] in Australia are relevant in considering the well-foundedness of his claims to fear persecution, the Tribunal must have regard to the provisions of s.91R(3) of the Act, which provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. (CB158)
Then at paragraph [114] it states:
Thus, where conduct in Australia is an issue, as in the present case, the applicant bears the responsibility of satisfying the Tribunal that it was otherwise than for the purpose of strengthening his or her claims to be a refugee (NBKT v MIMA (2006) 156 FCR 419 per Young J (Giles and Stone JJ agreeing) at [89], SZKOZ v MIAC [2007] FCA 1798 (Ryan J, 20 November 2007) at [28]-[29]; SZKHD v MIAC [2008] FCA 112 (Collier J, 19 February 2008) at [31]). In sum, any conduct of Mr [SZNRI] in Australia will need to be considered in relation to s.91R(3) and if the Tribunal is not satisfied that it was done otherwise than for the purposes of strengthening a claim for refugee status, such conduct must be disregarded in the determination of whether he has a well-founded fear. (CB 158)
The Tribunal accepted the evidence of the witnesses and stated at [117]:
The Tribunal has no doubt that the various witnesses who have given written and oral evidence that Mr [SZNRI] has genuinely converted from Islam to Christianity believe that to be true. However, he is an intelligent adult who has undertaken study at tertiary level. He is clearly capable of studying a subject such as Christianity, and discussing it with others, in a manner which to a genuine Christian may appear entirely consistent with being a convert to Christianity. The Tribunal must consider, however, whether he is.
However at [118], the Tribunal indicated that it was not satisfied that the applicant attended church in Australia, was baptised or had presented himself to others as a convert from Muslim otherwise than for the purposes of strengthening his claim for refugee status. The Tribunal identified five primary reasons for that finding:
a)At [119], that there was no evidence apart from the applicant’s own assertion that he had any interest at all in Christianity before he arrived in Australia;
b)At [120], the Tribunal had a number of concerns relating to the applicant’s baptism and his attitude to baptism;
c)At [121], the Tribunal was satisfied that the applicant only went to church in Sydney because he had become aware that his relationship with his ex-fiance was deteriorating and that she might withdraw her sponsorship of his visa application.
d)At [123], it identified an inconsistency between evidence he gave to the Tribunal about staying at his ex-fiance’s house in February 2007 and police fact sheets indicating that they were living apart by at least late January 2007.
e)At [124], evidence from Pastor Safari indicated that he did not regard the applicant as a genuine convert at the time.
In the absence of any grounds of review pleaded by the applicant and with the assistance of Mr Potts, I have considered the procedural steps and the significant aspects of the Tribunal decision to determine the presence of any jurisdictional error. The first issue is whether s.424A of the Act has been complied with. Subject to certain exemptions about material that the applicant gave to the Tribunal, he was entitled to have put to him (either at the hearing or in the letter) the material that taken from other sources and relied upon. I am satisfied from the letter issued by the Tribunal on 23 April 2008 that the Tribunal did place before the applicant material it thought would form part of its reasons and should be brought to his attention. To this extent the requirements of s.424A of the Act were complied with.

It is also clear from the s.424A letter that the Tribunal had acquired material from third party sources. In light of the recent High Court decision in Minister for Immigration & Citizenship v SZKTI & Anor [2009] HCA 30, I am satisfied that the Tribunal has not breached any provision of the Act in obtaining information it considered relevant to its decision-making process. The contents of s.424A letter do not suggest that the Tribunal breached s.424(1) of the Act. The Tribunal put to the applicant’s solicitor/migration agent by letter dated 23 April 2008 various pieces of information that might have formed part of the reasons for its decision. The applicant responded in detail. In SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [71] the Full Federal Court described the policy and purpose of s.424A as being:
To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal. Particulars supplied in this matter were sufficient to fulfil that purpose and consequently there is no s.424A issue in this matter.
The Tribunal decision concluded that the applicant engaged in Christian activities for the purpose of strengthening his claim to be a refugee and then said that this conduct:
…must be regarded in the determination of whether he had a well-founded fear. (CB 161 at [127])
The Tribunal expressly disregarded that conduct. Further the Tribunal’s consideration of the ex-sponsor’s actions (at [129]) involved consideration of her actions and not that of the applicant’s. Therefore an issue in the nature of that described SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515 does not arise in this matter.

Conclusion

The applicant in these proceedings is a self-represented litigant who, despite having received panel advice, did not place before the Court any ground of review of the Tribunal decision. However, I have had the benefit of detailed written and oral submissions prepared by Counsel for the first respondent and the opportunity to re-read the Tribunal decision in light of those submissions. I am satisfied that the Tribunal decision does not contain jurisdictional error and the application should be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 4 September 2009