SZOKX v Minister for Immigration
[2011] FMCA 107
•1 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOKX v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 107 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in its interpretation of s.91R(3) of the Migration Act 1958 (Cth) by applying it to conduct engaged in before the applicant had made a claim to be a refugee – whether Tribunal applied an incorrect test in relation to the Refugees Convention ground of religion – whether Tribunal findings not based on probative material – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 430 |
| Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXO and Another (2009) 238 CLR 642; [2009] HCA 40 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 |
| Applicant: | SZOKX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1112 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Jones – Solicitor |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1112 of 2010
| SZOKX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 15 April 2010. The applicant, a citizen of Lebanon, first arrived in Australia in February 2005 as the holder of a student visa. He left Australia for about five weeks in 2006, ten weeks in 2007 and eight weeks in 2008. Prior to lodging his protection visa application the applicant last arrived in Australia on 3 November 2008. He applied for a protection visa on 21 August 2009. The application was refused and the applicant sought review by the Tribunal.
In a statutory declaration dated 18 August 2009 provided in support of his protection visa application the applicant claimed to have a well-founded fear of persecution for reason of his religion, namely his conversion to the Baha’i faith. He claimed that he had previously been a Sunni Muslim, but while studying in Lebanon had met a group of students of the Baha’i faith and that he “secretly converted to Bahaism (sic) in October 2004”. He claimed that followers of the Baha’i faith in Lebanon were “very few”, that “we practice our faith secretly fearing serious repercussions from our family and the government”, that most followers continued to claim they were Sunni Muslim “in order to avoid harm” and that he had continued to openly practice the Sunni faith while in Lebanon to avoid his conversion being discovered by his family.
The applicant claimed that in Australia “I attend the Bahai (sic) temple in Ingleside” and “continue to be a committed member of my faith and am enjoying the opportunity of practicing (sic) my faith without fear of being harmed”. He claimed to fear that he would be seriously harmed if his family became aware of “the fact that I have converted to the Baha’i faith” and that he could not rely on the protection of the Lebanese authorities.
The applicant attended an interview with the Minister’s delegate. His application was refused. The delegate was not satisfied that the applicant was a genuine Baha’i follower. He sought review by the Tribunal and attended two Tribunal hearings.
The Tribunal’s reasons
In its reasons for decision the Tribunal outlined the evidence given by the applicant at the Departmental interview and the Tribunal hearings as well as the evidence of his wife and of a supporting witness. It also referred to an invitation to comment extended to the applicant under s.424A of the Migration Act 1958 (Cth) (the Act) and his response and to country and external information.
In the findings and reasons part of its decision the Tribunal summarised the applicant’s claim as a claim that he had “now formally converted to the Baha’i faith”, had attended the Baha’i temple in Sydney, participated in some Baha’i religious ceremonies and associated with members of the faith. He claimed that members of his family would kill him if they found out and that the Lebanese government would not protect him. He also claimed that he may be “at risk from members of the wider Sunni community in Lebanon”, that he “would not be able to practice his religion freely in Lebanon” and that he would suffer a loss of rights such as citizenship.
The Tribunal identified the primary question for it to determine as “whether the applicant is, in fact, a Baha’i, and whether he would seek to practise the Baha’i faith or be identified as a Baha’i if he returns to Lebanon”.
The Tribunal observed that in considering whether the applicant was a “genuine convert and adherent to the Baha’i faith” it must consider, among other things, the applicant’s claimed conduct in Australia and the application of s.91R(3) of the Act.
The Tribunal stated that it was necessary to assess the applicant’s evidence having regard to his overall credibility. It found that there were “significant deficiencies in many key aspects of the applicant’s evidence, which cast doubt on the overall credibility of his account”. These were said to include “internal inconsistencies” in his evidence; “inconsistencies and contradictions” between his evidence and that of his wife and a representative from the Baha’i church in Australia (Mr L); “vagueness or evasiveness in relation to important matters”; and “a demonstrated tendency to at least exaggerate, if not fabricate claims”. The Tribunal was of the view that “these matters reflect[ed] poorly on the credibility of the applicant’s account of his religious beliefs and activities in both Australia and Lebanon”. It discussed aspects of the applicant’s claims and its concerns in detail.
For reasons which it gave the Tribunal accepted that the applicant may have had “some contact with Baha’is in Lebanon” and learned something about the faith. However it did “not accept that he was a convert in Lebanon” or that he had “adopted the faith in any meaningful way prior to coming to Australia”. It had regard to the inconsistency between the applicant’s initial claims in his protection visa application and in his November 2009 interview with the delegate that he had undergone a conversion in Lebanon in October 2004 and his claims at the Tribunal hearing and thereafter that what happened in Lebanon was a “spiritual” rather than a formal conversion, that “it was just the first step in conversion” and that “everything he did in Lebanon was done in secret”. It also had regard to the fact that while the applicant first came to Australia in February 2005, his evidence was that “apart from reading some Baha’i information on the Internet, he had no further contact with the Baha’i faith until he attended the [Baha’i] Temple for the first time”. The Tribunal found that the applicant’s evidence about the timing of this event (which it regarded as important) was “inconsistent and highly unsatisfactory”. The Tribunal recorded that at the first Tribunal hearing the applicant said he first attended the Baha’i Temple in Australia over one year earlier (that is, before February 2009), but that later he said he first went before his wife came to Australia (in December 2008), possibly in April 2008. At the second Tribunal hearing he said he first went to the Baha’i Temple in November 2008 after his return from his most recent trip to Lebanon. He also said he did not go again until March 2009 and that since then he had been about twice per month. The Tribunal was of the view that if the applicant’s account was true and he was “genuinely committed to the Baha’i faith, his first visit to the…Temple in Sydney would be a matter of considerable significance”, especially if he considered that he had “undergone a spiritual conversion to the faith” in 2004 and was “living in a country where he had the opportunity to worship freely”. It found the applicant’s inability to remember with greater precision the first time he attended the temple led the Tribunal to conclude that the applicant was not telling the truth “about having a genuine commitment to the Baha’i faith at the time of his arrival in Australia or subsequently”. It also found that “the applicant’s lack of certainty” also reflected a “degree of evasiveness in his evidence”.
The Tribunal found that the applicant’s contact with the Baha’i faith for four years after his arrival in Australia was “minimal, consisting of some reading on the Internet and one visit to the Temple” prior to March 2009. It did not accept the applicant’s explanations (that he was under the control of his brother, that his wife initially did not know of his interest in the faith and that later she did not allow him to attend the Temple) satisfactorily explained “why a person with a genuine commitment to the Baha’i faith did nothing to manifest or pursue that faith for so long”.
Accepting that the applicant attended the Temple for the first time in November 2008, the Tribunal found that the long period between the applicant’s arrival in Australia and his first contact with the Baha’i organisation indicated that he was “not seriously or genuinely committed to the faith when he arrived in Australia”. It did not accept that “the applicant had undergone either a spiritual or formal conversion to the Baha’i faith in Lebanon”. It found his “lack of contact with the faith and community during the first three or four years that he lived in Sydney was because he did not, as a result of any association with Baha’is or any events that occurred in Lebanon, consider himself a Baha’i when he arrived in Australia”. It was also satisfied that “at the time of his arrival in Australia the applicant was not, in fact, a Baha’i”.
As indicated, the Tribunal did accept that the applicant had been to the Baha’i Temple at Ingleside and was prepared to accept that he first went there in November 2008. However it was “not satisfied that he attended the Temple out of a genuine belief in or commitment to the Baha’i faith”. Nor was it satisfied that the applicant “attended the Temple other than for the purpose of strengthening his claim to refugee status”. Hence the Tribunal disregarded any attendance by the applicant at the Baha’i temple in Ingleside under s.91R(3) of the Act when considering the application.
The Tribunal referred to the “inconsistent and contradictory evidence” provided by the applicant “about the nature and frequency of his attendance at Baha’i worship and religious events” in Australia. It considered that he had “not been truthful about these matters” and had “sought to exaggerate the degree of his participation in Baha’i activities”. The Tribunal referred to the applicant’s generally expressed claims made in association with the protection visa application and his claims at the first Tribunal hearing about attending Temple three times a month or sometimes once or twice a month or “more often for anything special”. It contrasted this to his evidence at the second Tribunal hearing that “he did not go to the Temple at all between November 2008 and March 2009” and that he subsequently “attended about twice per month” until August or September 2009 “when his wife changed her attitude and he started attending every Sunday”.
The Tribunal found, based on the applicant’s oral evidence, that he had no dealings with the Baha’i church from February 2005 until November 2008 and that he did not attend the temple again or participate in any further Baha’i activities until March 2009.
The Tribunal also had regard to the fact that when asked about ““special” events” he had attended in addition to Sunday services, the applicant was initially “very vague about what these special events might be”. When he identified meetings, festivals and special days and was asked which festivals he had attended he claimed to have attended only two festivals, notwithstanding that he had admitted there were “nine Holy Festival days each year [and] feasts held on the 19th day of every month”. The Tribunal considered “the applicant’s attendance at a mere two of these events [was] inconsistent with a genuine commitment to the Baha’i faith”.
The Tribunal was also of the view that the applicant had “sought to exaggerate the extent of his engagement with the Baha’i faith in a manner that reflect[ed] poorly on his overall credibility”. It found that his claims in his protection visa application were contradicted by subsequent oral evidence about his attendance at the Temple, his commitment to the faith and whether he was openly practising his faith. It concluded that the applicant made claims in his protection visa application “concerning a critical aspect of his case” that were not true.
The Tribunal had regard to the applicant’s admissions at the Tribunal hearing that his previous participation in the Baha’i faith had been “very limited”. It found that while he claimed his participation had increased since “his wife’s negative attitude [had] changed”, this was limited to “increased attendance at Sunday services at the Temple”. In any event, in light of “apparent inconsistencies and contradictions”, the Tribunal had “serious doubts” about the truth of the evidence that the applicant had attended Temple every Sunday for the next five or so months because his wife was no longer opposed to his interest in the Baha’i faith. It found the evidence about the timing of the wife’s changed attitude was inconsistent and that her evidence was very vague. The Tribunal was satisfied that the applicant had not been truthful in claiming that his “infrequent, indeed minimal participation” in Baha’i activities was because his wife disapproved until five or six months ago. It also found that, even if it accepted that the applicant regularly attended Sunday services at the Temple, the evidence indicated that this was his only regular participation in Baha’i religious activities, whereas the independent evidence indicated that it was the special feasts and holy days which constituted “the most important part of the religion where the Baha’i community [came] together for spiritual celebration” (whereas Sunday services were open to all). The applicant’s evidence was that he had “attended only one nineteen day feast and one Holy Day festival day over the entire period that he ha[d] been in Sydney”. The Tribunal considered it significant that the applicant chose not to attend these particular activities. It found that even if the applicant did attend Sunday services, “this alone [did] not indicate a genuine belief in the Baha’i faith”.
The Tribunal found that the applicant’s attendance at Baha’i events and ceremonies was “extremely limited”, that it had “not increased to any significant extent despite his claim [about] his wife’s” change of attitude. It also found that if his attendance at the Temple had “dramatically increased five or six months ago”, this would have coincided with the lodging of his protection visa application. It found however that there had been “no significant change in the frequency or nature of the applicant’s participation in Baha’i religious ceremonies” and that “his minimal involvement [wa]s not because of his wife’s disapproval”, but because he was not genuinely committed to the faith. The Tribunal found that to the extent his involvement had increased over the last five to six months, this conduct had been “engaged in for the purpose of strengthening his application”.
The Tribunal did “not accept that the applicant’s failure to attend nineteen day feasts or other festivals to any significant degree [wa]s because his wife [did] not allow him to” do so or because he was “afraid that members of the Muslim community [would] see him there”. It rejected his claim that because of his interest in the Baha’i faith he sought to avoid his brother (a Muslim). It had regard to a discrepancy in the evidence of the applicant and his wife as to how often the applicant saw his brother. It also had regard to the fact that, notwithstanding that the applicant wife had travelled to Lebanon with the applicant’s brother and sister in law between May and July 2009, “the applicant did not increase his participation in Baha’i activities” during this period. It did not accept that this was because of a promise to his wife, finding that if the applicant were genuine in his faith and if it were true that his reason for infrequent attendance was a fear that family members would find out, he would have taken advantage of their absence to attend such events.
The Tribunal found that “these matters cast doubt on the applicant’s evidence that his earlier failure to attend the Baha’i Temple or religious activities for some three to four years was because his wife and brother disapproved and he did not want them to know about it” and also “on his claim that his subsequent religious activities were limited for the same reasons”. It found that “the applicant’s failure to attend Baha’i worship and activities initially was because he had no genuine interest in the faith” and that his subsequent extremely limited attendance was not genuine, but was “undertaken in order to establish, and strengthen, a claim to refugee status”. It found that the applicant did not participate fully in Baha’i religious activities because he was not genuinely a Baha’i and did not want to associate closely with Baha’i people.
The Tribunal also found that the applicant had “sought to manufacture evidence to support his claims”, consisting of photographs of the applicant outside the Ingleside Temple.
The Tribunal then addressed the specific claims made by the applicant in relation to conversion. It accepted that he now stated that he did not undergo a formal conversion in Lebanon, but found that he had “not undergone a spiritual conversion in Lebanon”. It considered his claims about conversion in Australia. At the first Tribunal hearing the applicant told the Tribunal that he had “converted since he has been in Australia”. At the second hearing he produced a document “indicating that he [had] signed the declaration for conversion…a little more than one week before the first Tribunal hearing”. The Tribunal accepted that the declaration was signed at that time, but was not satisfied that this was evidence of the applicant’s genuine belief in the Baha’i faith. It noted that the requisite formal assessment of his knowledge or genuine commitment to the Baha’i faith had not yet been conducted. It also noted that the evidence did not indicate that the applicant’s religious practice had significantly changed, notwithstanding that he had signed the declaration for the purpose of converting, as he was “still unable or unwilling to participate openly in virtually any of the religious activities which ma[de] up observance of the Baha’i faith”.
The Tribunal addressed evidence from a witness from the Baha’i faith. It found that this evidence indicated that the applicant had initially sought to convert “without having given due regard to important matters such as the opposition of his wife and the fact that he would not be able to practice his faith openly” and that this indicated that he was “not acting in good faith when he first [e]nquired about conversion”.
The Tribunal also had regard to the absence of clear, coherent and satisfactory evidence from the applicant’s wife about her change of attitude and her husband’s claimed conversion and beliefs and to inconsistencies in the evidence as to when she changed her attitude.
The Tribunal concluded that the applicant was “not being truthful about his stated reasons for his initial lack of participation in Baha’i activities”, the subsequent increased participation or his decision to complete the conversion process. It was of the view that “the applicant’s decision to take the formal steps involved” in conversion “coincided with the hearing of his application for review” and was satisfied that this was done “for the purpose of strengthening his claim to be a refugee and not because he [wa]s a genuine believer…or follower of the Baha’i faith”. As the Tribunal concluded that this conduct was done for the purpose of strengthening the applicant’s claim to be a refugee it found that it must be disregarded pursuant to s.91R(3) of the Act.
The Tribunal addressed the applicant’s knowledge of the Baha’i faith. It had regard to inconsistent evidence from him at the two Tribunal hearings about Baha’i prayers and also the fact that his evidence was inconsistent “with the information about the prayers on the Baha’i website”. It set out the details of the inconsistencies in this evidence (about the timing of particular prayers) that had been put to him at the hearing. The Tribunal considered the applicant’s claim that he was taught and said the prayers in Lebanon and now said them regularly. It took into consideration that he “may have been nervous and under pressure” and that “this may have affected his ability to recall the timing of the recitation of the prayers”, but considered that this would only affect his recollection “if he were relying on his memory of learned information”. The Tribunal was of the view that if the applicant was “actually saying the prayers on a daily basis, his memory would be of his repeated actions and would not have been adversely affected by nerves”. The Tribunal considered that the applicant’s lack of familiarity with the Baha’i prayers was inconsistent with his claim that he had been interested in the religion and praying (certainly since 2004) or for any significant period of time. The Tribunal found that “the applicant’s knowledge about the prayers ha[d] been learned for the purpose of his protection visa application”.
In a summary, the Tribunal acknowledged that the applicant did have some knowledge of the Baha’i faith, its history and principles, but noted that there was “a great deal of information…available on the Internet”. It found that the applicant’s knowledge had been “learned for the purpose of the protection visa application” and did “not reflect a genuine commitment to or belief in the faith”. It also acknowledged that the applicant had attended the Baha’i Temple at Ingleside and that he had “had dealings with members of the faith”, notably the witness who attended the Tribunal hearing. The Tribunal accepted that this witness may genuinely believe that the applicant was a committed and genuine Baha’i, but found it significant that “the applicant ha[d] not completed that stage of the process of conversion which involve[ed] an assessment of his commitment to the faith by his local spiritual assembly”.
The Tribunal reiterated that while the applicant had had contact with the Baha’i organisation and members of the faith since he had been in Sydney and had attended the Temple and some religious ceremonies, “this had been done for the purpose of strengthening his claim to refugee status”. It considered that “his declaration of intention to become a member of the Baha’i community [was also] done for this purpose” and was satisfied he had engaged in this conduct for the purpose of strengthening his claim to be a refugee and that it must therefore disregard this conduct for the purpose of assessing the protection visa application.
In light of what the Tribunal found to be the remaining credible evidence, it did not accept that the applicant genuinely believed in or was committed to the Baha’i faith. It did not accept that he would seek to practise the Baha’i faith if he returned to Lebanon and was satisfied that he would not identified as a Baha’i by any group that may wish to harm him for that reason.
While the Tribunal accepted that the applicant may have had contact with members of the Baha’i faith while at university in Lebanon, it was satisfied that he did not have a well-founded fear arising from that contact, given that it took place some five years earlier, that there had been no adverse consequences since that time and that the contact had not led the applicant to be identified as a Baha’i. The Tribunal was not satisfied the applicant would be identified as a Baha’i by his family, the Sunni Muslim community or the Lebanese government and therefore did not accept that he faced a real chance of harm from any of these groups by reason of his religion.
Because the Tribunal did not accept that the applicant would seek to practice the Baha’i faith in Lebanon or that he would be identified as a Baha’i, it found it unnecessary “to consider whether Baha’is in Lebanon fac[ed] restrictions on their right to worship or any other harm, including loss of citizenship, amounting to persecution”.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reason of his religion.
The applicant sought review by application filed in this court on 20 May 2010. He now relies on three grounds of review contained in an amended application filed on 10 November 2010.
Section 91R(3) of the Migration Act
The first ground in the amended application is that “The Tribunal erred in its interpretation of s 91R(3) of the Migration Act 1958 by applying it to conduct engaged in before the Applicant had made a claim to be a refugee.”
Section 91R(3) of the Act is as follows:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The applicant submitted that s.91R(3) had no application to conduct engaged in before a protection visa application was lodged as the words “strengthening the person’s claim to be a refugee” implied on their face the existence of a claim at the time of the conduct in question. It was submitted that to the extent that there may be any ambiguity in this provision, it should be read narrowly on the basis that it was clearly an abrogation, at least in part, of Australia’s adherence to the Refugees Convention (see Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXO and Another (2009) 238 CLR 642; [2009] HCA 40 at [5] per French CJ and Bell J).
Thus it was contended that any conduct engaged in by the applicant prior to 21 August 2009 (the date on which his protection visa application was lodged) was not conduct to which s.91R(3) could apply to require the Tribunal to disregard it.
No issue is taken with the Tribunal’s application of s.91R(3) of the Act to any conduct engaged in by the applicant after the lodgement of the protection visa application in August 2009.
Reference was made to the fact that while the Tribunal found that as at August 2009 the applicant had only infrequently attended the Temple, was not a committed member of the Baha’i faith and was not openly practising his faith, it had accepted that the applicant engaged in some conduct in Australia prior to August 2009 (it was prepared to accept that he first attended the Ingleside Baha’i Temple at least as early as November 2008, that he next attended Temple in March 2009 and that he attended a festival in March 2009). The Tribunal had, however, disregarded this conduct under s.91R(3) of the Act.
The solicitor for the applicant referred to SZNIL v Minister for Immigration & Anor [2010] FMCA 470 at [34] – [35] in which Driver FM stated as follows:
It follows from the High Court’s decision [in SZJGV] that, before reaching a conclusion on the application of s.91R(3), the Tribunal must make factual findings relating to the conduct that may or may not fall within the purview of the section. Then, it must consider the motivation for that conduct. The Tribunal must apply a sole purpose test in considering that motivation. However, the Tribunal may categorise conduct in a number of ways. For example, there may be a temporal factor so as to divide conduct between conduct engaged in before an applicant applies for a protection visa, and conduct engaged in after the application is made. It is arguable that a person cannot display bad faith in relation to an application for protection until the application is made. In my opinion, the better view is that a person may, in bad faith, plan a protection claim before making it.
It may reasonably be supposed that it would be an unusual circumstance for an applicant to engage in conduct in Australia prior to making a protection visa application for the sole purpose of strengthening a hypothetical future protection visa application. In other words, it may be difficult for the Tribunal to conclude that an applicant’s motivation for conduct was solely to strengthen a protection visa claim which had not yet been made. On the other hand, the Tribunal may be able to more readily conclude that similar conduct engaged in after a protection visa application is made was engaged in for the sole purpose of strengthening the application. Further, there may be a qualitative difference in the conduct which may justify different conclusions in relation to similar or related conduct. For example, an applicant may be a genuine Falun Gong practitioner and may engage in the practice of Falun Gong for a purpose otherwise than to strengthen protection visa claims, but may engage in demonstrations and protests relating to Falun Gong for the sole purpose of strengthening protection visa claims. While such a distinction may be difficult to draw, it is not, in theory, impossible. (Footnotes omitted).
The applicant submitted first that insofar as Driver FM expressed the view that a person may in bad faith plan a protection claim before making it and that this indicated that s.91R(3) could apply to conduct engaged in prior to the lodgement of a protection visa application, His Honour was clearly wrong and should not be followed. It was submitted that to the extent that there may be any ambiguity in s.91R(3) the provision should be read narrowly on the basis that it was an abrogation at least in part to Australia’s adherence to the Refugees Convention and that it should only apply to conduct the person engaged in from the time a protection visa application was lodged. It was submitted that SZJGV supported the proposition that s.91R(3) was so limited (see SZJGV per Crennan and Kiefel JJ at [42] – [43]).
In the alternative, the applicant submitted that in considering conduct engaged in prior to the lodgement of a protection visa application, the Tribunal had to at least find that the applicant had been “planning” a protection visa application at that time and had the intention of filing such an application (see SZNIL). In this case, while the conduct in question was the applicant’s contact with Baha’i institutions in Australia from early November 2008, the Tribunal had made no finding that the applicant had been planning his application for the 10 months before it was lodged in August 2009. It was also submitted that the Tribunal fell into error in this respect as this was “not an obvious inference” to draw from the applicant’s behaviour. (It was contended that the Tribunal found that the applicant increased the frequency of his attendance after the protection visa application was lodged suggesting only that such post-application increase may have been intended to strengthen the claim).
I am not satisfied that the Tribunal erred in the interpretation of s.91R(3) of the Act in the manner contended for by the applicant. As counsel for the first respondent submitted, there is nothing in the language of s.91R(3) to prevent its application to conduct engaged in before an applicant lodged a protection visa application. On the contrary, that section requires the Tribunal to disregard “any conduct engaged in by the person in Australia” (emphasis added). The limitation on the scope of s.91R(3) is not a temporal limitation on the conduct to which it can apply, but rather that the applicant may satisfy the Tribunal that the conduct was engaged in otherwise than for the purposes of strengthening his or her claim to be a refugee.
In SZNIL Driver FM proceeded on the basis that s.91R(3) could apply to conduct engaged in prior to the lodgement of a protection visa application. I am not persuaded that such a view is clearly wrong and hence should not be followed. In SZNIL Driver FM was addressing the fact that after making factual findings relating to the conduct that may or may not fall within the purview of the section, the Tribunal must “then” consider the purpose or motivation for that conduct (at [34]) and in so doing must apply a sole purpose test. His Honour suggested that in that context the Tribunal may categorise conduct in a number of ways having regard, among other things, to when it occurred. As Driver FM suggested, the Tribunal may be able more readily to conclude that conduct engaged in after a protection visa application was made was engaged in for the sole purpose of strengthening the application, whilst it may be more difficult for a Tribunal to reach such a conclusion in relation to pre-application conduct. This does not mean that s.91R(3) cannot apply to pre-application conduct.
The fact that Driver FM expressed the view in SZNIL that it would be unusual for an applicant to engage in conduct in Australia prior to making a protection visa application for the sole purpose of strengthening a hypothetical future protection visa application is, as his Honour stated, relevant to whether or not the applicant is able to satisfy the Tribunal that his or her motivation for conduct was not solely to strengthen a protection visa claim which had not yet been made. It does not mean that as a matter of law such conduct is not subject to s.91R(3) of the Act.
There is not such an ambiguity in the words of s.91R(3) as to warrant the interpretation suggested by the applicant. The words “any conduct engaged in by the person in Australia” are clear. As French CJ and Bell J stated in SZJGV at [5], the purpose of s.91R(3) was to overcome the effect of decisions of the Full Court of the Federal Court concerning cases in which the applicant had deliberately engaged in conduct within Australia calculated to strengthen his or her claim for protection by enhancing the risk of persecution if he or she were to be returned to his country of origin. The Federal Court had previously held that such bad faith conduct did not automatically bar the applicant’s claim for a protection visa (at [5]). In considering s.91R(3) the High Court did not suggest that there was any temporal limitation on its application to conduct engaged in within Australia.
Insofar as the applicant referred to what was said by Crennan and Kiefel JJ in SZJGV at [42]-[43], in that part of their judgment their Honours were elaborating on their statement (at [41]) that “Prior to the introduction of s.91R(3), differing views had been expressed about the extent to which the conduct, in Australia, of an applicant for a protection visa could bear upon their claim to refugee status” (and whether a requirement of good faith ought to be implied). The fact that in this context their Honours referred to remarks of judges in pre-s.91R(3) cases does not support the applicant’s contention.
Moreover, as their Honours pointed out at [44] – [45], the Explanatory Memorandum to the 2001 Act that introduced s.91R(3) (Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum, p.10 [27-29]) indicated that the provision was:
… designed to maintain: “the integrity of Australia’s protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status.”
The Second Reading Speech confirmed that actions taken after arrival in Australia “will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection”. In exceptional cases, where a person had acted “purely to strengthen their claims”, an application might nonetheless be granted in the exercise of ministerial discretion. (Emphasis added and footnotes omitted). (see Australia, House of Representatives, Parliamentary Debates (Hansard) 28 August 2001, p.30, 422.)
Contrary to the applicant’s contention that s.91R(3) is limited to conduct engaged in after lodgement of a protection visa application, Crennan and Kiefel JJ stated at [27]: “The evident intention of s 91R(3) is that applicants for protection visas should not be able to make their case for refugee status stronger by evidence of conduct which they have engaged in for that purpose, since their arrival in Australia” (emphasis added). There is nothing in these remarks to suggest that s.91R(3) does not apply to all conduct after arrival in Australia. Indeed, Crennan and Kiefel JJ went on to point out that s.91R(3) was not limited to cases in which the conduct engaged in by a person in Australia was undertaken “to create the circumstances in which Convention protection might be engaged” (at [51]).
Further as French CJ and Bell J stated in SZJGV at [9], the legislative purpose of s.91R(3) as disclosed in the Second Reading Speech was “to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2).” Again, this does not suggest a temporal limit on the operation of s.91R(3) of the Act.
While the words “any conduct” in s.91R(3) are largely unqualified, they are subject to the proviso in paragraph (b) which is concerned with conduct “which has as its sole purpose the creation of a claim” (Crennan and Kiefel JJ in SZJGV at [59]). It is the case that, as Crennan and Kiefel JJ suggested in SZJGV at [65]: “It is essential that the object of s 91R(3) and the mischief it was intended to remedy be taken into account in construing it”. However, while the object of s.91R(3) requires that the section be read “more narrowly” (ibid), that is achieved by virtue of the interpretation of the proviso adopted by the High Court in SZJGV.
Having regard to the approach taken in SZJGV and the existence of the proviso, there is no reason on the face of s.91R(3) to read it as automatically excluding from its ambit any conduct engaged in prior to the lodgement of the protection visa application. Such a construction seeks to impose a gloss in the form of a temporal limitation which is not supported by the plain words of the statute or by the approach taken in SZJGV. No other authority was cited in support of such an interpretation of s.91R(3) of the Act.
Indeed, in a broad sense, an applicant’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol is not contingent upon the making of an application for a protection visa. Rather, the consideration of such a claim arises at that time, consistent with the provisions of the Act. It would not be consistent with “the object of s.91R(3) and the mischief it was intended to remedy” (SZJGV at [65] per Crennan and Kiefel JJ) to exclude from its operation any conduct engaged in before the lodgement of the protection visa application. That is not to say, however, that the circumstances and timing of pre-application conduct is not a matter to be taken into account by the Tribunal in determining whether the applicant has satisfied it that he or she engaged in that conduct otherwise than for the purpose of strengthening a refugee claim under the proviso to s.91R(3)(b) as recognised in SZNIL.
Insofar as the alternative suggestion is put that the Tribunal must necessarily make a finding that the applicant had been planning his protection visa application at the time of conduct prior to lodgement for it to be considered under s.91R(3), this is not made out. It would not accord with the approach taken by Crennan and Kiefel JJ in SZJGV to the operation of the proviso to s.91R(3). As their Honours pointed out at [61]:
Paragraph (b) of sub-s (3) is not expressed in terms which require a decision-maker to state a conclusion as to the person’s motive or motives, only whether the decision-maker is satisfied that the person had a motive for the conduct in addition to that to strengthen the claim. Regardless of the conclusion stated, because the person’s sole purpose is the point of reference, the decision-maker will necessarily determine whether the person had only one motive, that to which par (b) refers. And if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person’s only motive was the strengthening of the person’s claim.
In this case it was for the applicant to satisfy the Tribunal that conduct he engaged at any time after his arrival in Australia was otherwise than for the purpose of strengthening his claims to be a refugee. He did not do so. The basis of the applicant’s claim to fear persecution, according to his protection visa application, was said to have arisen from his conversion to the Baha’i faith in Lebanon in October 2004. He claimed to have participated in activities in Australia in connection with that faith since his first arrival. He did not apply for a protection visa until 21 August 2009. The Tribunal found that the applicant had failed to attend Baha’i worship initially in Australia (for three years) because he was not a Baha’i and had no genuine interest in the faith. The Tribunal’s detailed findings that the applicant’s subsequent extremely limited attendance at Baha’i activities from November 2008 on was not genuine but was undertaken in order to “establish, and strengthen” a claim to refugee status were open to it on the material before it for the reasons that it gave.
This ground is not made out.
Ground two in the amended application was not pressed.
Whether the Tribunal applied an incorrect test in relation to religion
The next ground in the amended application (ground three) is that “The Tribunal applied an incorrect test of the Convention ground of “religion” by failing to consider that the Applicant may had (sic) a more personal and less formal attraction to the Baha’i faith.”
The applicant submitted that the Refugees Convention ground of “religion” was not limited to formal adherence to some recognised religious creed, dogma or observance. Reference was made to the remarks of Gray J in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 at [16] that it was “not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.”
It was contended that at the Tribunal hearing the applicant had described his reasons for being attracted to the Baha’i religion in terms of his own personal feelings, not as an attraction to a particular set of beliefs or the requirement to adhere to a particular set of observances. Reference was made to the following exchange in the Tribunal hearing on 3 February 2010 (Transcript annexed to the affidavit of Michael Terrence Jones affirmed on 6 September 2010):
TRIBUNAL: Okay. To you, as far as your faith is concerned, what is the difference between being a Baha’i and being a Muslim?
APPLICANT (THROUGH THE INTERPRETER): Okay. When I was a Muslim I felt like if I was in a locked room, I could see inside, but not outside, but now I feel like the door is open and I can see inside and outside.
TRIBUNAL: And what are the differences in the religious teachings of both these faiths that have changed the way you feel?
APPLICANT (THROUGH THE INTERPRETER): Okay. There is original difference. The big difference, first of all, you know, when you believe in the Baha’i life it is a difference, that you have like, now, have a very big spiritual – like, you know, inside you, spiritual feeling and the second thing, in Islam they believe in Jihad and that’s violence and killing, like you know, other, like, the people that don’t have your belief. And our religion we have peace with everybody else, with all religions.
TRIBUNAL: Well, my understanding that violent Jihad is one interpretation of the Islamic faith that is pursued by some people.
APPLICANT (THROUGH THE INTERPRETER): Yes, because I was a Muslim and I learned about Jihad. Jihad is must in the Islamic faith but some people takes it and follow it like, you know, with violence and some other people, they don’t, but it is, like, you know, essential in the Muslim faith; Jihad.
TRIBUNAL: Well, with respect, my understanding is that Jihad means struggle and it can mean an internal struggle within yourself to be a good person or to follow Islam properly. So my – just wait, can I finish? My understanding is that many Muslims adopt that interpretation of what is required for Jihad, and I would have thought that you could equally follow that interpretation of Islam which would be equally compatible with a peaceful life.
APPLICANT (THROUGH THE INTERPRETER): Yes, might be true what you’re saying, but there is a verse in the Koran, it says, like, you know, how you explain it, that you know, try to convince people in your belief. If they not believe, kill them and so killing is in the Koran.
TRIBUNAL: Well, what’s the attitude of the Baha’i faith to Islam?
APPLICANT (THROUGH THE INTERPRETER): Okay, we respect Islamic religion and we believe that Mohammad was a prophet and the Koran in a book from God, but in our after death some sheiks they – the way they do, they teach them the explanation of the Koran is what is now causing the problems.
TRIBUNAL: This is what I’m getting at. The view that violent Jihad is necessary is one view within Islam. Now, you might not like that view but that doesn’t mean that you should reject Islam entirely. Surely you could follow a sheik or go to a mosque where a different view of Islam was encouraged. I’m trying to get a clear picture of why you think that the Baha’i faith is more desirable for you than the Islamic faith. And to say that you don’t like one aspect of Islam that’s believed by a minority doesn’t seem to resolve that issue in my mind.
APPLICANT (THROUGH THE INTERPRETER): Okay. Yes, that’s true, Jihad is one aspect of the Islamic religion, but in our religion there is equality; like, men and women are equal in front of God, and like we have peace – we ask, you know, we call for peace for the whole world, we don’t want wars, we don’t like killing, and in our religion we don’t only follow the religion, we follow religion and laws and you know, education, side by side together. Okay. Well, and there is one more – like, you know, important thing in the Baha’i religion, because the Muslim they believe that Mohammed was the last prophet, and our belief, we believe that God never desert people. They would always send someone to help them and teach them the right way.
TRIBUNAL: How do you personally feel different as a Baha’i than you did as a Muslim?
APPLICANT (THROUGH THE INTERPRETER): Yes, I feel different but you can’t, you know, express that. You only feel it only when you become a Baha’i.
TRIBUNAL: You have said you’re very concerned about your family finding out that you are a Baha’i. What exactly do you think would happen if they found out?
APPLICANT (THROUGH THE INTERPRETER): They would kill me.
TRIBUNAL: Does that include your family members here?
APPLICANT (THROUGH THE INTERPRETER): Yes.
The solicitor for the applicant acknowledged that the Tribunal was concerned with testing the applicant’s knowledge of and adherence to Baha’i observances in considering his evidence about the frequency of his attendance at the Temple and his religious activities in Australia. However it was submitted that while it may have been open to the Tribunal to find that the applicant’s increased attendance at religious gatherings after lodging his protection visa application was motivated by a desire to strengthen his claims, the Tribunal did not consider the question of whether such attendances were of importance to the applicant’s personal interaction with the religion, notwithstanding that the Tribunal was aware that, as stated in one of the items of country information cited in its reasons for decision (the official website of the Baha’i religion in Australia) and as confirmed by a witness, an “independent” recognition of certain core beliefs was enough to make a person a Baha’i. It was also said to be relevant that the applicant had told the Tribunal that he wished to give his son the freedom to choose his own religion and that this suggested that he was “not dogmatic in his own beliefs”.
On this basis it was contended that the Tribunal had “failed to consider the possibility that the Applicant’s attraction to the Baha’i faith was based on personal considerations relating more to that religion’s differences [from] the strict Islam he had been brought up in…rather than a need to participate in rituals or ceremonies”.
Counsel for the first respondent contended that while one could conceive of a claim by a person that he or she adhered to a system of ideology or faith in a manner that fell short of formal adherence, that was not the case in this instance. It was pointed out that the applicant’s claim, as advanced to the Department and the Tribunal, was that he had undergone a conversion to the Baha’i faith. In connection with his protection visa application he claimed that he had undergone a conversion in Lebanon in October 2004, albeit at the Tribunal hearing he claimed that what had happened in Lebanon was a “spiritual” rather than “formal” conversion. He also claimed to have participated in Baha’i activities in Australia as a “committed member of [his] faith”. It was these claims that were considered and rejected by the Tribunal.
It was also submitted that the part of the Tribunal hearing set out above on which the applicant relied did not support this ground. It was pointed out that this ground does not assert a failure to consider a claim made by the applicant or arising in the material before the court in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. In any event, it was submitted that to the extent that it was now suggested that the applicant had advanced a claim other than claims based on his conversion to Baha’i, no such claim was advanced before the Tribunal and nor did such a claim arise squarely on the material before the Tribunal.
This ground is not made out. As submitted for the first respondent, the applicant’s claim was based on his conversion to the Baha’i faith. The Tribunal did not proceed on the basis that the Convention ground of religion was necessarily limited to formal adherence to a recognised religious creed, dogma or observance. However, whatever the reasons for the applicant’s claimed attraction to the Baha’i faith, he sought to rely on his conversion and participation in Baha’i worship and religious activities. In particular, he did not suggest that his limited involvement in Baha’i activities reflected a more personal and less formal attraction to the faith. Nor does such a claim arise squarely on the material before the Tribunal in the sense considered in NABE (No 2).
What the transcript of the Tribunal hearing reveals is that the Tribunal member was engaged in questioning the applicant about the differences between being a Baha’i and being a Muslim and was in fact seeking to elicit more information about the personal aspect of his claim. This exchange reveals a proper focus by the Tribunal during the course of hearing on the applicant’s personal beliefs based on either or both Islam and Baha’i.
As set out above, the Tribunal did not accept that the applicant had undergone either a spiritual or formal conversion to the Baha’i faith in Lebanon, although it accepted that he may have known some Baha’is and something about the faith. However it was satisfied that his lack of contact with the Baha’i faith and community during the first three or four years he lived in Sydney was because he did not consider himself a Baha’i notwithstanding any association with Baha’is or events that occurred in Lebanon. It was also satisfied that at the time of his arrival in Australia he was not in fact a Baha’i. In his protection visa application the applicant claimed that in Australia he attended the Baha’i temple at Ingleside and “continue to be a committed member of my faith and am enjoying the opportunity of practising my faith without fear of being harmed”. The Tribunal considered these claims in light of the evidence about the applicant’s activities in Australia and knowledge of Baha’i prayers. Had the applicant had a more personal and less formal attraction to his faith (and had this provided the explanation for his limited involvement in Baha’i activities) he had the opportunity to make such claims. He did not do so.
The Tribunal did not apply an incorrect test of the Convention ground of religion given the claims that were made by the applicant.
To the extent that it was contended by the applicant that the Tribunal was acting as an arbiter of religion in the sense considered in Wang and in subsequent decisions such as WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 and SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129, there is nothing in the Tribunal reasons for decision to support a claim that the Tribunal was setting up a minimum standard of knowledge of the Baha’i religion or beliefs and hence taking on a role of arbiter of doctrine in the sense referred to in Wang.
Moreover, as discussed by Kenny J in Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108 and as the Full Court stated in WALT at [28] – [32], while it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion, it does not follow that questioning of a person about that person’s beliefs or matters which that particular religion teaches or its tenets means that the Tribunal is necessarily becoming an arbiter of the doctrine of that religion.
As in WALT, the Tribunal in this case did not set a level of knowledge of or commitment to the Baha’i faith which the applicant had to meet to satisfy the Tribunal that he had converted. Rather, it explored the level of his knowledge, understanding and commitment. As the Full Court of the Federal Court said in SBCC at [47]:
… where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim.
Kenny J accepted in SZLSP that a Tribunal which relied on a premise that ““every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error” (at [37]). However, as Her Honour went on to point out, there is a difference between operating from a premise that all believers have certain specific knowledge and concluding, after exploration and without any preconception as to what knowledge all believers will demonstrate, “that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion” (at [37]). The Tribunal in this case did not operate from the premise that all believers would demonstrate formal adherence in a particular manner. Rather, it considered all the evidence, including the evidence about the applicant’s participation in Baha’i activities, but found in all the circumstances that the applicant was not a genuine adherent.
In SZLSP Kenny J pointed out that if the Tribunal relied on other factors besides an evaluation of the applicant’s knowledge, this would typically be a strong indicator that it was conducting a legitimate exploration, rather than making a determination “by reference to a preconceived minimum standard of knowledge” (at [38]). In this case the Tribunal did not simply rely on an evaluation of the applicant’s formal adherence to Baha’i or his knowledge of Baha’i principles, practices and prayers, but considered both his involvement and knowledge of doctrinal practices of the Baha’i faith and also other matters such as inconsistencies in his evidence as set out in detail above.
Ground three is not made out.
Ground four is not pressed.
Whether findings not based on probative material
The last ground relied on by the applicant is ground five in the amended application which is as follows:
The Tribunal constructively failed to exercise its function of review because its findings on a significant matter were not based on probative material referred to in the Tribunal’s reasons.
The solicitor for the applicant submitted that one of the matters the Tribunal considered to be of considerable significance in leading it to believe that the applicant was not credible was what it described as his “inconsistent evidence about the Baha’i prayers at the two hearings” which was also said to be inconsistent “with the information about the prayers on the Baha’i website”. The Tribunal findings in issue were as follows:
The applicant gave inconsistent evidence about the Baha’i prayers at the two hearings; and his evidence was also inconsistent with the information about the prayers on the Baha’i website. At the first hearing he said that the small prayer is said twice a day between lunch and the afternoon, while the medium prayer is said at sunrise, sunset and at night. At the second hearing he said at first that the small and medium prayers can be said at any time. When challenged about this he then said that the medium prayer is said between lunch and afternoon and the small prayer can be said at any time. He then said that he was confused and altered his evidence to state that the medium prayer is said three times per day, in the morning, at lunch and in the afternoon. The Tribunal put to him that according to the Baha’i prayers website, the small prayer is to be said once per day at noon. He responded that Baha’i recognises the demands of modern life so that the small prayer can be said at any time, although it is preferable that it be said during the hour of God in the middle of the day.
The applicant gave evidence that he was taught the prayers in Lebanon, and that he said them there. He claims that he now says them regularly. The Tribunal has taken into consideration that the applicant may have been nervous and under pressure at the Tribunal hearing and that this may have affected his ability to recall the timing of the recitation of the prayers; however the Tribunal considers that this would only affect the applicant’s recollection if he were relying on his memory of learned information. The Tribunal is of the view that, if the applicant were actually saying the prayers on a daily basis, his memory would be of his repeated actions and would not have been adversely affected by nerves. The Tribunal considers the applicant’s apparent lack of familiarity with the Baha’i prayers to be inconsistent with his claim that he has been interested in the religion, and praying, certainly since 2004; and indeed, for any significant period of time. The Tribunal finds that the applicant’s knowledge about the prayers has been learned for the purpose of his protection visa application.
The applicant’s submissions referred to the fact that at the hearing the Tribunal’s questioning of the applicant about prayers referred only to “the information I have” and did not identify the source of its information to him. It was submitted that the Tribunal also failed to identify in its reasons the actual location of the “Baha’i prayers website” and that, consistent with the approach taken by the Full Court of the Federal Court in SZLSP, the Tribunal’s failure to identify the source of its claimed standard of practice in relation to prayers left the court unable to be satisfied that it had a proper basis in evidence for finding that the applicant did not meet that standard. On this basis it was contended that the court should infer that the Tribunal had constructively failed to exercise its function of review.
Reliance was placed on the fact that in SZLSP the Tribunal had compared the applicant’s knowledge of Falun Gong beliefs to a document it called (during the hearing) “my book”. The Tribunal did not identify that document in its reasons which relevantly stated in relation to the hearing only that “At hearing, I first asked the applicant a series of question about Falun Gong. He answered none of them correctly”. The Tribunal did not believe the applicant in SZLSP was a Falun Gong practitioner based on his inability to “answer my questions about basic elements of Falun Gong belief”. It was in that context that Kenny J referred to the obligation of the Tribunal under s.430(1)(d) of the Act to refer to the evidence or other material on which its findings were based and stated at [72]:
… On the face of the Tribunal’s written statement, the Tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent’s answers; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding. In these the circumstances, it is appropriate to infer that the Tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the Minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the Federal Magistrate did not err in finding jurisdictional error.
Her Honour’s views were supported by Rares J at [98] as follows:
The issues considered by the Tribunal can involve, and often are claimed to involve, persons who fear for their lives if their claims for protection visas be rejected. As French, Sackville and Hely JJ said in Applicant WAEE v Minister (2003) 75 ALD 630 at 641 [46] some of its decisions may literally be life or death decisions for an applicant. Where the Tribunal fails to comply with the requirements of s 430(1) and it is not possible to be satisfied that its written statement had a proper basis, the Court can infer, safely, that the Tribunal constructively failed to exercise its function of review.
The applicant contended that the Tribunal in this case had made findings on a significant matter which were not based on probative material referred to in its reasons for decision. In effect it appears to be contended that the Tribunal fell into error because it did not sufficiently identify the source of the information about Baha’i prayers on which it relied, so that the court could infer that its findings in that respect were not based on probative material.
The applicant relied on the principle that the Tribunal was only empowered to make a determination regarding the state of satisfaction in s.65 of the Migration Act that the relevant criteria for the visa have been met “where that determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds” (SZLSP at 40]). In SZLSP Kenny J referred to a number of authorities in support of this proposition, in particular the statement by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at 20; [37] – [38] that:
…the satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or to refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned.
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. (footnotes omitted)
It was in the context of such authorities that her Honour stated that where the Tribunal’s determination regarding its state of satisfaction “turns on its evaluation of an applicant’s knowledge of a religion, and that evaluation is irrational in the relevant sense, the jurisdictional foundation for the Tribunal’s decision will be absent” (at [41]). Notably however her Honour also referred to the fact that, as Gummow ACJ and Kiefel J observed in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [40], the conclusion that a Tribunal’s decision was so irrational was not to be reached lightly.
The Tribunal’s conclusion in this case did not “turn” on its evaluation of the applicant’s knowledge of a religion. That was but one of several factors and there is no suggestion that its findings in other respects were not based on probative material or were otherwise irrational or illogical.
Insofar as it is suggested that the Tribunal failed to identify the source of its knowledge during the Tribunal hearing, as Kenny J found in SZLSP at [23] – [28], jurisdictional error should not be inferred simply from the fact that the Tribunal does not reveal the identify of its source during its questioning at the hearing.
Further, contrary to the applicant’s submissions, there are a number of matters which distinguish the circumstances in SZLSP from those in this case. The Tribunal decision in that case was, in contrast to the decision in this case, very brief. While the Tribunal in SZLSP reproduced verbatim the lengthy description of the visa applicant’s claims in evidence given to a previously constituted Tribunal (see Kenny J at [7]). Thereafter it set out what her Honour described as a “relatively cursory description” of evidence in the hearing that it conducted. The applicant in SZLSP claimed to be a Falun Gong practitioner. All that the Tribunal recorded in relation to its questions regarding Falun Gong was that at the hearing it had asked the first applicant a series of questions about Falun Gong and “He answered none of them correctly”. In its findings and reasons it explained that the principal reason why it did not accept the applicants’ claims was that it did not believe that the first applicant was a Falun Gong practitioner. It found: “His inability to answer correctly my questions about basic elements of Falun Gong belief causes me to discount any possibility that he has practiced in China as he claim[ed]” (at [8]). On this basis, without any explanation in its reasons of what these questions were and how the answers were incorrect, the Tribunal in SZLSP found that the applicant’s claimed practice of Falun Gong in Australia was not for reasons of genuine adherence to Falun Gong but rather for the purpose of strengthening his claims and disregarded this conduct under s.91R(3). The Tribunal in SZLSP also went on to find that because of its finding that the applicant knew “little – almost nothing – about Falun Gong”, it did not believe that he would seek to practise Falun Gong should he return to China (at [8]).
In contrast, in this case the Tribunal set out in some detail the applicant’s evidence at the hearings it conducted, including in relation to the appeal to him of Baha’i; differences between Islam and Baha’i; how Islam was viewed by the Baha’i faith; Baha’i beliefs, holy books, prayers and practices; what occurred at the Temple; and his evidence about special festivals and feasts and his attendances. It made detailed findings relating to particular aspects of the applicant’s evidence, and referring to independent country information. The Tribunal’s rejection of the applicant’s claims was not based simply on perceived deficiencies in his knowledge of Baha’i doctrine.
Insofar as the Tribunal questioned the applicant at the second hearing about when Baha’i prayers were to be said, it put to him the manner in which his evidence was contrary to the Tribunal’s information (in particular that its information was that the small prayer was said once a day at noon) in circumstances where he had claimed one could say the small prayer at any time, that the medium prayer was said three times a day and that the biggest prayer was said once a day. In its findings and reasons the Tribunal made the findings set out at [78] above, in which it referred to “information about the prayers on the Baha’i website”.
Kenny J also indicated in SZLSP that the basis for concluding that particular elements of doctrine in question were elements an adherent to the religion in question in the applicant’s position would be reasonably expected to know need not necessarily be expressly articulated in the Tribunal’s reasons, as it may be apparent from the material relied on by the Tribunal, and may include knowledge the Tribunal had acquired through exposure to previous claims based on the same religion (although the Tribunal must refer to such knowledge in its reasons) (at [42]). After considering the role of s.430 of the Migration Act, Kenny J found in SZLSP at [50] that the “fundamental difficulty” in that case was that there was no reference by the Tribunal to any material on which it based it finding that none of the applicant’s answers were “correct” and that he knew “almost nothing” about Falun Gong beliefs. In contrast, in this case the basis for the Tribunal’s conclusion about Baha’i prayers and the relevance of knowledge of Baha’i prayers was articulated in its findings and reasons.
It was in the particular circumstances in SZLSP that Kenny J suggested that on the face of the Tribunal reasons it appeared that the Tribunal had “arbitrarily decided the [applicant’s] answers were “wrong” without any logical basis to do so” (at [50]) and concluded that in the absence of a reference to any material on which the Tribunal’s findings about the applicant’s knowledge was based, that it could be inferred that the Tribunal decision was not based on findings or inferences of fact grounded upon probative material and logical grounds (at [51]). As Kenny J pointed out however, a mere failure to comply with s.430 of the Act is not a jurisdictional error (at [54]). Her Honour stated at [55]:
In a case such as the present, it will always be possible to speculate that the Tribunal has relied on absent and unidentified probative material, but it will rarely be possible to establish that fact with any degree of confidence. In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision; and the evidence and other material referred to therein is in fact the evidence and material on which the Tribunal based those findings. To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so. I conclude that there is no such reason here.
This is not such a case. The Tribunal decision was not silent in relation to material on which it based its findings as to the correctness of the applicant’s knowledge about Baha’i prayers. It referred to material (the Baha’i prayers website) that is not in evidence before the court. However the absence of such material in evidence before the court is not of itself such as to warrant an inference that the Tribunal’s finding was not based on probative material in the manner considered in SZLSP (where the Tribunal decision did not identify any material on which its finding was based) (see Kenny J at [55]).
Further, in SZLSP Rares J agreed with the orders proposed by Kenny J. His Honour discussed the operation of s.430 and referred to the fact that (in contrast to the present situation) the written statement prepared by the Tribunal in SZLSP was “bereft of any reasoning process or evidence to support the finding of fact that the husband knew little or almost nothing about Falun Gong” and that the “bare assertion that the husband had not answered his questions "correctly" about what it asserted were basic elements of Falun Gong, was not self-evidently correct” (at [87]). In this case such a reasoning process is evident.
Rares J also pointed out that while s.430 had the purpose of exposing to scrutiny what a Tribunal did as specified in that section and this enabled the process of judicial review to be undertaken to ascertain whether the decision-maker had acted in the performance of his or her statutory power or function according to law (at [92]), nonetheless the reasons or written statement “…should not be construed minutely and finely with an eye keenly attuned to error” as stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6.
Rares J found that in the case before him the Tribunal did not identify any material on which its conclusory finding was based (at [93]) and that its findings were concerned with the objective accuracy of answers based on the application of unidentified and hence unknown criteria. In those circumstances, the brevity of the Tribunal’s written statement under s.430(1) and the absence of any identifiable basis for its findings of material fact about the applicant’s knowledge and practice of Falun Gong led to the inference that it had no evidence or other material referred to in s.430(1)(d) or 430(3)(b) (at [94]). It was on that basis that his Honour concluded (at [98]) that where the Tribunal failed to comply with the requirement of s.430(1) and it was not possible to be satisfied that its written statement had a probative basis, the court could safely infer that the Tribunal had constructively failed to exercise its function of review.
As indicated, a critical difference between the circumstances in SZLSP and the present case is that the Tribunal in this case did not base its conclusion solely on the applicant’s lack of knowledge of religion and did refer to an identified basis for its findings of material fact (including about the applicant’s knowledge of the times for prayers). The Tribunal acknowledged that the applicant had some knowledge of the Baha’i faith, its history and principles and did not base its decision solely on inconsistency between information before it and the applicant’s evidence about when certain prayers were said or his lack of knowledge in that respect. In particular, the Tribunal identified in its reasons not only the basis for its questioning of the applicant but also the basis or source of its information about prayer, including that the small prayer was to be said once per day at noon.
In effect, the applicant’s contention is that the references to the Baha’i website and subsequently to the Baha’i prayers website in the Tribunal reasons for decision are insufficient and that the court should infer that the Tribunal finding was not based on probative material because it failed to identify with precision the source of its claimed standard of practice in relation to Baha’i prayers (presumably by quoting from that source). However, I am not satisfied that the failure to refer expressly to precisely where and in what part of a website the information in question was contained is such as to establish that the Tribunal’s finding was not based on probative material referred to in its reasons.
Moreover, the briefness of the reference in the Tribunal reasons for decision must be seen in light of the fact that the Tribunal had already indicated that it had relied on material in the Department’s file, as well as the material from other sources to which it referred. The Department reasons for decision referred to two aspects of websites in relation to Baha’i, being “ “ In its reference to country and external information the Tribunal also referred to information that came from the official website of the Baha’i movement in Australia (“ said to have been “discussed with the applicant at the hearing” (albeit that the parts extracted in that part of the Tribunal reasons for decision did not refer to when particular prayers were said).
Insofar as the applicant sought to suggest that there was no such information on the Baha’i website from which an extract appeared in the Tribunal decision under the heading “country and external information”, the evidence before the court is not such as to enable such a conclusion to be reached.
I am not satisfied on the evidence before the court that in such circumstances the Tribunal failed to identify the basis for its findings of material fact in relation to the applicant’s apparent lack of familiarity with Baha’i prayers (in part based on the inconsistency in this evidence in that respect) so as to lead to the inference that it had no evidence or other material and no probative basis for its finding such that it constructively failed to exercise its function of review.
This is not a case in which an inference should be drawn on the material before the court that the Tribunal’s conclusion that the applicant’s evidence was “inconsistent with information about the prayers” on the Baha’i website or the Baha’i prayers website was not grounded in probative material and logical grounds such as to support a conclusion that the Tribunal decision was arbitrary and irrational in the sense considered in SZLSP or otherwise.
There was a logical connection between the variation between the Tribunal’s information about when Baha’i prayers were said (in particular that according to the Baha’i prayers website the small prayer was to be said once per day at noon) and the applicant’s evidence (at the first hearing that the small prayer was said twice a day between lunch and the afternoon and, at the second hearing, that it could be said at any time) and the Tribunal’s conclusion that the applicant’s apparent lack of familiarity with the Baha’i prayers was inconsistent with his claim that he had been interested in the Baha’i religion and importantly in praying since 2004 or for any significant period of time. This ground is not made out.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding one-hundred and three (103) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 1 March 2011
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