SZROK v Minister for Immigration and Anor
[2012] FMCA 1043
•16 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZROK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1043 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – application for an extension of time to bring proceedings – relevant considerations. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it took irrelevant considerations into account and made a finding for which there was no evidence. |
| Migration Act 1958, ss.91R, 424A, 427, 474, 477 Federal Magistrates Act 1999, s.17A |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Ahmed v Minister for Immigration & Citizenship [2011] HCATrans 35 |
| Applicant: | SZROK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1325 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 October 2012 |
| Date of Last Submission: | 26 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Jackson |
| Solicitors for the Applicant: | KTG Lawyers |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application for an extension of time to bring these proceedings be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1325 of 2012
| SZROK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived in Australia on 12 July 2011. On 25 July 2011 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in Iran because of his religion. On 23 August 2011 his application for a protection visa was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The application to this Court was filed out of time. For the reasons which follow the application for an extension of time to bring these proceedings will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-15 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in his protection visa application and in a statutory declaration dated 21 July 2011 lodged in support of that application:
a)he was born in Iran and was originally a Shia Muslim. He converted to Christianity on 3 April 2011 and received a Christian name;
b)he left Iran because he feared harm or persecution because of his conversion to Christianity;
c)in May 2011 his father telephoned him and told him that the Iranian intelligence authorities had raided his family home and seized his computer, passport, national identity card and military exemption card. His father was arrested and interrogated for about two hours about the applicant’s conversion. The authorities said that if his father had converted he would be killed;
d)his father arranged for his escape from the city where he was studying. He then travelled to Australia through Turkey, Thailand, Laos and Vietnam using two false Turkish passports and one false New Zealand passport;
e)his father told him that since he left Iran an order had been issued for his immediate execution if he was found in Iran; and
f)he feared harm from Muslims in Iran. He also feared that anyone who had knowledge of the order issued by the authorities would kill him.
Tribunal
On 22 September 2011, the applicant’s advisers submitted to the Tribunal that the applicant faced persecution in Iran because of his conversion to Christianity and because an anti-government political opinion would be imputed to him as a convert to Christianity and as a failed asylum seeker who had left Iran illegally and sought asylum in a western country.
The applicant made the following claims at a Tribunal hearing on 23 September 2011:
a)he started reading about Christianity and other religions while he was studying. After reading about Christianity, a Christian friend referred him to other Christian websites and spoke to him about his own personal knowledge and experience as a Christian. After a while he felt a strong urge to convert to Christianity;
b)his friend took him to a house church where a priest conducted prayers and asked him questions about his faith. Afterwards, he was baptised and the priest who baptised him told him that he would be recorded as having been baptised but would not be issued with a certificate since he had been baptised in front of witnesses. His baptism was not a formal baptism but whatever it was, it was a “new birth” to seek forgiveness of sins. If he had stayed in Iran he would have been referred to a main church at a later date;
c)he attended eight sessions at the house church. The sessions were held on Thursdays and Sundays but he could only attend on Sundays because he had university classes on Thursdays. The house church was a particular Protestant church which he identified;
d)whilst in Iran he read a Persian translation of the Bible on his computer;
e)he obtained his Iranian passport nearly six months before he left Iran but at the time had no intention of travelling. He obtained his passport after being granted an exemption from military service because it was normal to apply for a passport after completing military service or being granted an exemption;
f)when his father was questioned, he was told that the applicant’s house church had been under surveillance and that seven men had been detained. His father was shown a photo of the applicant’s Christian friend;
g)whilst he was in Thailand he was told by his family that the authorities had been to his brother’s business. His father told him that he thought the family was under surveillance. His father also told him that a court had dealt with his case “in absentia” and that he, his Christian friend and five others had been found to be apostates. The court did not give his father any documents relating to his sentence for fear that he would give them to the media;
h)whilst in detention in Australia he attended church services and read his Bible;
i)he elected not to swear an oath on the Bible at the beginning of the Tribunal hearing because he had been told by a priest that Protestants do not swear in their normal daily lives;
j)if he had wanted to practise Christianity to strengthen his case he would have obtained records of his church attendance and while in Thailand he would have gone to a church and converted so that he could provide conversion documents once he reached Australia. Because he had already been baptised, he did not need to have a fake baptism; and
k)he feared harm from the Iranian government because he would be seen as being against it after having applied for a protection visa in Australia.
On 26 September 2011, the Tribunal wrote to the applicant inviting him to comment on or respond to information which it considered would be the reason or part of the reason for affirming the delegate’s decision. In that letter, the Tribunal noted the following inconsistencies in the applicant’s evidence:
a)the applicant claimed at the Tribunal hearing that he converted to a Protestant denomination of Christianity which he named but at his departmental interview he was unable to state the denomination of Protestantism into which he had converted; and
b)the applicant claimed at the Tribunal hearing that he had not received a baptism certificate after he was baptised. However, during the departmental interview the applicant claimed that he was given a paper with his name, the priest’s signature and two witness signatures and that the authorities had taken this from his family home in May 2011.
In response to the Tribunal’s letter, on 3 October 2011 the applicant’s advisers submitted that:
a)at the time of the baptism, the priest who baptised the applicant was not a priest of the denomination in question but told the applicant that he could still baptise the applicant into Protestantism and that when he was registered as a priest of the denomination he could assist the applicant to become a member of the denomination. As a result, at the departmental interview the applicant said that he was not a member of a particular Protestant denomination because he believed that he had converted to Protestantism generally, rather than to a particular denomination. However, at the Tribunal hearing he felt that it was necessary to elaborate on this matter; and
b)although the applicant did not receive an official baptism certificate with Church certification, he received a piece of paper containing his name and witness signatures which was taken from his family home by the authorities.
Enclosed with the applicant’s advisers’ submissions was a letter from a Catholic priest stating that the applicant sometimes attended the weekly Catholic service held at the detention centre and that he, the priest, had no reason to doubt the applicant’s story.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal did not find the applicant to be a credible witness in relation either to his claimed conversion to Christianity or to the events he claimed had occurred as a result of his conversion. For the following reasons the Tribunal did not accept that the applicant faced a real chance of serious harm if he returned to Iran because of his actual or imputed religious beliefs as a convert to Christianity:
a)the Tribunal found that there were inconsistencies in the evidence given by the applicant at the departmental interview and at the Tribunal hearing concerning the denomination of Protestantism into which he had converted and whether he had been issued with a baptism certificate. The Tribunal did not accept the applicant’s explanations for those inconsistencies: that they were slight inconsistencies or that they could be explained by differences of language and culture or a fear of the authorities. The Tribunal gave significant weight to those inconsistencies in assessing the applicant’s credibility in relation to other aspects of his claims;
b)the Tribunal had significant doubts about the applicant’s claim to have converted to Christianity because he did not elect to swear an oath on the Bible at the beginning of its hearing. The Tribunal did not accept the applicant’s explanation for not swearing to tell the truth and noted that he had not provided evidence to support his claim that Protestants do not normally swear on the Bible;
c)the Tribunal did not accept that the applicant had engaged in a process that was not a formal baptism when the ceremony he described was a baptism. Noting country information that years of training and commitment were required by Protestant churches in Iran before they baptised converts, the Tribunal found that the country information was inconsistent with the applicant’s claim to have participated in a baptism ceremony of some sort without prior training or involvement with the church into which he was baptised;
d)the Tribunal noted that in response to it putting to the applicant that he might have learnt about Christianity in Iran for the purposes of claiming refugee status in another country, he responded that if he had wanted to strengthen his case he would have obtained records of his church attendance, gone to church and been baptised in Thailand. The Tribunal further noted that whilst the applicant claimed that he had not undertaken further baptism because he had already been baptised, he had also claimed that the baptism he undertook at the house church was not a formal baptism which, the Tribunal found, would presumably not have precluded him from undertaking a further baptism. The Tribunal found the applicant’s response on this issue unconvincing and contradictory;
e)the Tribunal found that the applicant may have obtained an understanding and knowledge of Christianity by reading about it online, hearing of it from a Christian friend and from his contact with the Christian community in Australia. The Tribunal thus accepted that the applicant had some knowledge and understanding of Christianity but found that the core elements of his claims had significant credibility deficiencies which outweighed the knowledge of Christianity he had demonstrated. Given its serious concerns about the applicant’s credibility, the Tribunal did not accept his core claims;
f)the Tribunal noted that the applicant had not claimed that he had come to the attention of the Iranian authorities or Iranian public because of his reading about Christianity online or solely because of his friendship with a Christian. The Tribunal therefore did not accept that the applicant’s education in relation to Christianity before he came to Australia would have come to the attention of the Iranian authorities or the Iranian Muslim public generally;
g)as the Tribunal did not accept that the applicant had undertaken the claimed activities in converting to Christianity that might have brought him to the attention of the Iranian authorities or the Iranian public, it found that he had not come to the attention of the authorities or public as an apostate or as someone who had renounced Islam;
h)whilst accepting that the applicant had attended Christian ceremonies since his arrival in Australia, the Tribunal found that those activities were undertaken solely to strengthen his claims to be a refugee. Consequently, the Tribunal disregarded this conduct pursuant to s.91R(3) of the Act; and
i)the Tribunal found that the applicant would not attend Christian ceremonies if he returned to Iran because he had not converted to, and had no genuine interest in, Christianity, not because he would be doing so to avoid a threat of being persecuted.
The Tribunal found that the applicant’s use of three false passports when travelling to Australia indicated a readiness to give false information to immigration authorities. The Tribunal did not accept that the fact that the applicant sought protection as soon as he arrived in Australia outweighed the doubts about his honesty raised by his readiness to travel with false documents.
The Tribunal noted country information indicating that persons returning to Iran without a valid Iranian passport would come to the attention of authorities. Given its concerns about the applicant’s credibility, the Tribunal did not accept that his passport was confiscated and that he left Iran illegally. The Tribunal thus found that if the applicant were to return to Iran he would use his genuine passport and would not be required to obtain a travel document from the Iranian government. Further, the Tribunal noted country information indicating that persons returning from a western country did not necessarily come to the attention of authorities on their return and were not necessarily suspected of having sought asylum in a western country. The Tribunal did not accept that the Iranian authorities already had an interest in the applicant or that the length of time he had spent in Australia would bring him to the attention of the Iranian authorities. The Tribunal thus found that the chance that the applicant would come to the attention of Iranian authorities on his return to Iran and be identified as a failed asylum seeker was remote, not real.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Tribunal took into account an irrelevant consideration when it took into account the Applicant’s refusal to swear on the bible prior to giving evidence as a factor in assessing his credibility.
2. The Tribunal based its decision in part upon a fact which did not exist, and thus upon a fact in relation to which there was no evidence.
Particulars
2.1The Tribunal wrongly found that, in the interview before the Minister’s delegate, the Applicant was “unable to name the denomination of Protestantism in to which he had claimed to have converted”, but at the hearing stated that he had converted into the … church, and that this was “an inconsistency” which was not satisfactorily explained (RD206 [98]).
2.1.2In fact, the Applicant did say in the interview before the Minister’s delegate that the Church into which he had converted was the … church.
2.2The statement was used as evidence of inconsistency, and thus used to make an adverse assessment of his credibility.
Application for extension of time
The applicant seeks an extension of time to bring these proceedings.
Section 477 of the Act provides the time limits which apply to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a)…
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …
The Tribunal’s decision was dated 27 October 2011 which means that the applicant had until 1 December 2011 to commence these proceedings. However, the application was not filed until 18 June 2012 which means that it was brought out of time.
The consequence of this is that the Court must now consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicant considers that it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made.
In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. Consequently, the initial criteria for the granting of an extension of time have been satisfied.
The next matter to be considered is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. Although the matters which may be relevant to this consideration are not confined, in the circumstances of this case I consider the relevant questions to be whether the applicant has a satisfactory explanation for the delay in the commencement of these proceedings and whether the allegations made in the amended application have reasonable prospects of success: see s.17A of the Federal Magistrates Act 1999. It was not suggested that the Minister has been prejudiced by the delay.
Does the applicant have a reasonable explanation for the delay?
In his application initiating these proceedings the applicant stated:
1.The applicant was in detention from Oct 2011 (time of decision) to about April 2012 when he was released into the community.
2.The applicant was in hospital for some weeks in about April 2012 and unwell beforehand for some time.
3.From 1 May 12 to 31 May 12 the applicant sought, and was granted, legal aid.
The applicant also relied on the affidavits of his solicitor, Richard Killalea affirmed 18 June 2012 and 26 October 2012, the latter annexing an unsworn affidavit of the applicant which Mr Killalea deposed reflected what the applicant told him about the reasons for the delay in commencing these proceedings.
The applicant said that the delay was caused by having waited for a reply to his legally-assisted request for ministerial intervention, delays by the Legal Aid Commission in responding to his communications and by a period of hospitalisation. In relation to the first period of delay, in Ahmed v Minister for Immigration & Citizenship [2011] HCATrans 35, Gummow J said:
The plaintiff should not be denied an order for an extension of time by reason of pursuit on legal advice of other avenues of redress; see Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 at 88, 103 and 125. (at [5])
As to the remainder of the delay, between the requests for legal aid and the applicant’s hospitalisation there were various periods of inaction, however, none of them was of material duration.
In light of the statement of Gummow J quoted above, I conclude that it would be inappropriate to include in the calculation of the delay the period attributable to the applicant’s request for ministerial intervention on, I infer, legal advice. As to the remainder of the period in question I conclude that the applicant has demonstrated a satisfactory explanation for not commencing this proceeding earlier than he did.
Reasonable prospects of success
Ground 1 – taking irrelevant consideration into account
The applicant referred to the Tribunal having placed weight on the fact that rather than swearing an oath at the commencement of the Tribunal hearing he had elected to make an affirmation and had gone on to find that without a satisfactory explanation of this choice it counted against his claim to have converted to Christianity.
The applicant submitted that the Act draws no distinction between giving evidence on oath or affirmation and simply requires that a witness undertake to tell the truth. In this regard he cited s.427 of the Act which relevantly provides:
427Powers of the Refugee Review Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation …
…
(5)The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
The applicant submitted that both methods of undertaking to tell the truth were treated equally under the Act and that the Act did not suggest that the form of a witness’s undertaking was to be a factor relevant to determining his or her credibility. He submitted that it was impermissible to take the form of that undertaking into account for that purpose.
As the Minister pointed out in his written submissions, for the form of the applicant’s undertaking to give truthful evidence to be a consideration irrelevant to whether that evidence was credible, the Act would need to explicitly or implicitly require the Tribunal to not take the form of the undertaking into account on that issue. As the Minister also pointed out, the Act does not do that. Specifically, s.427 does not have that effect. It is concerned with procedure at Tribunal hearings, not with the evaluative process undertaken by the Tribunal when making decisions on the matters it is called on to review.
The applicant also submitted that public policy required that a person’s choice concerning whether to swear an oath or make an affirmation should not be a matter to be taken into account when that person’s credit comes to be considered. However, that argument does not address cases such as the present where the credibility of the applicant’s claim to have undergone a recent conversion to Christianity was central to the Tribunal’s considerations. As the Tribunal implicitly observed at para.102 of its decision, the applicant’s decision to not make an oath was inconsistent with the essence of his case, his claim to be a Christian. In such circumstances the applicant’s decision assumes evidentiary significance and becomes more than a personal choice of no relevance to the matters presenting for determination.
The applicant further submitted that, in any event, the transcript of the Tribunal hearing revealed that he misunderstood what the Tribunal had meant when it spoke of swearing on the Bible or taking an oath on the Bible. He submitted that he thought that he was being asked to say something profane “on the Bible”. In this regard, he referred to the following exchange recorded in the hearing transcript:
Tribunal:Was there any reason why you did not elect to take an oath on the bible at the beginning of this hearing?
Applicant:As a Protestant we normally don’t do that, and we don’t swear in our normal living either. (emphasis added in submissions)
The essence of this argument is that the Tribunal misunderstood the motivations underlying the applicant’s choice to make an affirmation, rather than to swear an oath, and arrived at an erroneous conclusion concerning the significance and meaning of that decision. The applicant gave no evidence in this proceeding which touched on that issue. Even if I were to draw from the transcript the inference which the applicant presses and accept his assertion notwithstanding the absence of direct evidence on the point, that would lead no further than a finding that the Tribunal reached a conclusion on this issue which was open but incorrect. Such errors do not amount to jurisdictional error.
Ground 2 – No evidence for finding
In relation to the second ground of the amended application the applicant submitted that the Tribunal’s finding that his evidence to the delegate and to the Tribunal was inconsistent, in that he had mentioned the name of his denomination to the latter but not to the former, was unsupported by evidence because in fact he had mentioned it to the delegate.
In support of this submission the applicant relied on the affidavit of Ellna Mohammed, a NAATI certified interpreter and translator in Persian, Kurdish, Farsi and Dari, affirmed 11 October 2012. Ms Mohammed deposed that she had listened to the sound recording of the applicant’s interview with the delegate and that at one point the applicant said in Persian:
Say all they gave me was a simple paper with my name, that father’s signature and two witnesses and they said we are going to transfer your name to church [name supplied], I think it’s the main Protestant Church that he said we will transfer your name to there …
In answer, the Minister relied on the sound recording of the interview. The relevant portion was played in court and I listened to it again after reserving my decision in this matter. Neither in court nor subsequently have I been able to discern the applicant pronouncing the name of the church in question. However, as I am completely unfamiliar with the Persian language I cannot place much weight on my appreciation, or lack of appreciation, of what the applicant said. On this issue I prefer the evidence of the interpreter Ms Mohammed and find that during his interview with the delegate the applicant did mention the name of the Protestant denomination with which he had an affiliation.
The consequence of this finding is a further finding that the Tribunal was mistaken when it stated that the evidence which the applicant gave it on this aspect of the matter was inconsistent with the evidence he gave to the delegate on the issue. Nevertheless, that conclusion does not necessarily lead to a further finding that the Tribunal had no evidence on which to base its finding of inconsistency in the applicant’s evidence on the point. This is because of the response which the applicant gave to one of the matters raised by the Tribunal in the letter it sent to him pursuant to s.424A of the Act. In that letter the Tribunal expressly raised the inconsistency which it understood to exist between the evidence which the applicant had given to it concerning the identity of the denomination with which he claimed to be affiliated and the evidence he had given to the delegate on that subject. In the applicant’s s.424A response his advisers submitted:
Given these matters, the applicant submitted at his Departmental Interview that he was not a member of a particular denomination of Protestantism as he held the belief he had not officially converted to [name supplied] and had converted to Protestantism generally. The Applicant instructs that he felt it was necessary to further elaborate on this matter at his Refugee Review Tribunal Hearing.
The response adopted the Tribunal’s misunderstanding, accepted it as accurate and endeavoured to explain it. That was information placed before the Tribunal from which it could conclude that there had indeed been inconsistency between the applicant’s two accounts.
Conclusion
As I am not persuaded that the Tribunal’s decision is affected by jurisdictional error, I find that the applicant’s substantive application does not have reasonable prospects of success.
Consequently, although, in my view, the applicant has provided a satisfactory explanation for his delay in commencing these proceedings, his application for an extension of time to bring the proceedings will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 November 2012
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