SZSXV v Minister for Immigration
[2014] FCCA 1584
•24 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSXV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1584 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – where Applicant wife applied for a protection visa as a member of her husband’s family unit but husband claimed both he and his wife feared harm for reason of their religion – Applicant wife invited to and attended Tribunal hearing – whether Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) or otherwise erred in failing to give wife opportunity to give evidence at the hearing or in failing to call her to give evidence for her husband – whether the Tribunal’s finding about the Applicants’ motivation was irrational, arbitrary or unreasonable – whether the Tribunal failed to put a dispositive issue to the Applicants or to either of them. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 425, 426 |
| Ex parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 |
| First Applicant: | SZSXV |
| Second Applicant: | SZSXW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1288 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 30 January 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr L Karp |
| Solicitors for the Applicants: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 8 May 2013 in Tribunal case number 1213144.
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 16 August 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1288 of 2013
| SZSXV |
First Applicant
| SZSXW |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
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 8 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants are husband and wife and citizens of Iran. They applied for protection on 23 May 2012. Several of the grounds relied on in these proceedings relate to whether the Tribunal failed to give the Applicant wife an opportunity to give evidence or present arguments at the Tribunal hearing in a manner constituting jurisdictional error. It is relevant to set out in some detail the manner in which claims were made by and for the Applicants.
The husband was the primary applicant. In Part B of the protection visa application the husband answered “yes” to the question “Do you have your own claims for protection?”. He completed Part C as an applicant who wished to submit his own claims for protection. In Part B of the protection visa application the wife indicated that she did not have her own claims for protection and completed Part D as a member of her husband’s family unit. However in the statement accompanying the protection visa application the husband included claims that both he and his wife feared harm in Iran as a result of their conversion to Christianity. He claimed that he was born a Muslim but was never a “true believer” and that he had developed a “deep hate” towards the Islamic religion after an incident in which he and his wife were arrested by the “religious police force” while jogging in the street and detained until they could produce their marriage documents. He also claimed that his wife had been rejected by many potential employers in Iran as she did not adhere to the Islamic dress code.
The husband explained that in December 2007 he and his wife went to Malaysia to pursue their university studies. He claimed that a few months later they met a Ms Hosseni to whom he made clear his views about Islam and Iranian politicians, particularly during the 2009 Iranian Presidential election. She was also said to be aware that he had participated in protests against the Iranian government in Malaysia.
The Applicant husband claimed that after he and his wife returned to Malaysia from a vacation in Australia, Ms Hosseni introduced them to Christianity and invited them to attend “praying ceremonies”. Relevantly, he claimed that despite initially refusing to attend, he and his wife began to attend “worship ceremonies” and that they both “gave their hearts” to Christ in September 2011. He claimed that every Sunday morning he and his wife went to a particular English language church (the Free Gospel Assembly (FGA)) in Kuala Lumpur and that every Sunday afternoon they went to an Iranian church (the Persian Christian Fellowship (PCF) held in the Poiema Christian Centre) for prayer. He claimed that his family in Iran opposed their conversion.
The husband also claimed that in early 2012 he decided to encourage his friends in Malaysia to “come to church and know Christianity”. He claimed that while his wife was visiting her family in Iran his Iranian classmates, including a former Basij officer, threatened him and that a friend who worked in the student unit told him that the Iranian embassy in Malaysia had made inquiries about him and other students. The Applicant husband claimed that he then advised his wife to leave Iran as soon as possible
He also claimed that when his wife returned to Malaysia she explained that she had made only limited telephone calls to him from Iran because Sepah officers from the Army of the Guardians of the Islamic Revolution had raided her brother’s home and found a copy of a prohibited book about Islam and that they were now investigating the family. Her brother had left Iran and sought refugee status in England.
Within a week of these events the Applicants came to Australia. The husband claimed that he and his wife could not return to Iran because the Iranian Embassy in Malaysia knew that they were Christian. He also claimed that he and his wife could not stay in Malaysia as it was an Islamic country with close diplomatic ties to Iran and that they were afraid Iran may ask Malaysia to return them to Iran as they were Christian converts.
The husband also claimed that after he and his wife came to Australia they were introduced to the Liberty Baptist Church, where they met Pastor Piper. They attended services and bible classes and were both baptised on 25 March 2012. Copies of certificates of baptism and a letter of support from Pastor Piper referring to the religious beliefs and activities of both Applicants and to their fears of returning to Iran were provided in support of the application.
A Departmental delegate invited the Applicant husband to attend an interview. The letter of invitation did not refer to the Applicant wife. In a decision of 16 August 2012 the delegate recorded that the husband and Pastor Piper had attended the interview. The delegate considered the husband’s claims to have a well-founded fear of persecution for reason of his religion, but was not satisfied that he had genuinely converted to Christianity. The delegate had regard to the absence of corroborative evidence in relation to the husband’s claimed Christian practice in Malaysia. She was not satisfied that the husband had “engaged in the Christian religion” prior to his arrival in Australia or that he had undertaken religious activities and conversion in Australia for purposes other than to strengthen his claim for protection.
The delegate made no findings about whether or not the wife’s claimed conversion was genuine or about the purpose of her religious activities in Australia or in relation to whether she had a well-founded fear of persecution for reason of her religion. However the delegate considered whether there was a real chance that either the husband or his wife would be subjected to harm because Sepah officers found a prohibited book in the wife’s brother’s home. She was not so satisfied. The delegate also concluded that as she refused to grant a protection visa to the husband she also refused to grant such a visa to the wife as a member of his family unit.
On 29 August 2012 both Applicants sought review by the Tribunal. After appointing a new migration agent they provided a letter from a pastor in Malaysia dated 14 August 2012 attesting to their religious beliefs and their attendance at the PCF church in Malaysia.
By a letter dated 20 February 2013 the Tribunal invited both Applicants to appear before it “to give evidence and present arguments relating to the issues arising in your case.” The covering letter to their migration agent confirmed that both Applicants were “invited to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
In a Response to Hearing form dated 14 March 2013 both the husband and wife indicated that they would take part in the Tribunal hearing “as review applicants”. In addition, they requested that the Tribunal take oral evidence from two other persons details of whom were to be provided.
In a written submission of the same date the Applicants’ advisor not only took issue with the delegate’s findings (in particular in relation to the husband’s conversion to Christianity) but also claimed that both the husband and the wife were genuine Christians in Malaysia, that the Iranian government knew of their conversion, that they were regular churchgoers in Australia and that their lives would be in danger in Iran.
The Applicants provided the Tribunal with photographs, documentary material and supporting references about their religious activities. These documents included letters that referred to specific activities of the wife. In particular, Ms Thorpe (the Hon. Secretary of the Australian Christian Nation Association (ACNA)) attested to the fact that the wife had given testimony at her baptism and held an elected position in the ACNA and Pastor Piper referred to the involvement of both the husband and the wife in the Liberty Baptist Church in Sydney.
A further Response to Hearing Invitation Form was received by the Tribunal on 19 March 2013. Again, both husband and wife indicated that they would take part in the Tribunal hearing as “review applicants”. In addition, the Applicants asked the Tribunal to take oral evidence from Pastor Piper and Ms Thorpe.
Both the husband and wife attended the Tribunal hearing on 20 March 2013, as did Pastor Piper and Ms Thorpe. A copy of the transcript of the hearing is in evidence as an annexure to an affidavit of Michelle Elizabeth Stone affirmed on 26 November 2013.
At the Tribunal hearing both Applicants were sworn in. The Tribunal acknowledged that they also had two witnesses present. After the Tribunal described the criteria for a protection visa, the husband indicated that he had no questions. The hearing continued (transcript p.4):
TRIBUNAL: Okay. Can I ask your wife whether you have any separate claims to those of your husband? No? What I’m going to do now is I will ask you all to leave however, but for you, I may bring you in if there is something I need to ask you about. Okay, and if I do, then I have to ask you separately to your husband. Okay. So if I ask for – if the three of you can move out?
MR….??: ……: Yes.
TRIBUNAL: Say again?
MR…..??: Would you like us to leave as well?
TRIBUNAL: Yes, thanks. Okay. I’m now going to discuss your claims with you. In the course of the hearing I will point out what I think might be any problems with your claims that is anything which might cause you to be refused a protection visa. You will have an opportunity to comment on any such problem that I might mention. You will also have the opportunity, if you need it to seek more time to respond to my comments. The hearing is an opportunity for you to tell me everything about your claims to protection in Australia.
This part of the transcript does not identify the person who responded orally to the Tribunal. The parties do not dispute that when the Tribunal said “Can I ask your wife whether you have any separate claims to those of your husband?” there was a negative indication (such as a shake of the head) by the wife and that the wife left the hearing room, as did Pastor Piper and Ms Thorpe. The husband and the advisor remained in the hearing room. Thereafter the Tribunal addressed the husband.
After questioning the husband, the Tribunal member indicated that he might bring the witnesses in one at a time and after that ask questions of the husband in more detail (transcript p.18). The Tribunal member continued:
TRIBUNAL: … You stay here while the witnesses are here. You stay here. If I need to call your wife in, then you will have to leave.
The Tribunal then took evidence from Pastor Piper and Ms Thorpe in which each of them referred to both Applicants. For example, while Pastor Piper was asked what he wanted to say “in support of the applicant”, he referred to the involvement, baptism, beliefs and commitment of both Applicants (transcript p.18-24) and also spoke about “the applicants” and their Christian journey (transcript p.25). Indeed, the Tribunal member asked Pastor Piper about his knowledge of “their” religious journey (transcript p.18) and what “they” had told him (transcript p.19).
In the part of the transcript recording the evidence of Ms Thorpe several parts of her testimony are recorded as indistinct. However it is apparent that when the Tribunal member asked what Ms Thorpe wanted to say “in terms of the applicant” (transcript p.24), Ms Thorpe referred to both Applicants coming to church, to the wife’s IT abilities, to their problems being Christian in Malaysia and Iran and to the fact that the wife had spoken up (transcript p.24-25).
After questioning Ms Thorpe, the Tribunal member questioned the husband about areas in which he had concerns about his evidence (transcript p.25) and the genuineness of his beliefs and claims. The Tribunal drew the husband’s attention to the effect of s.91R(3) of the Migration Act 1958 (Cth) (the Act) in relation to his conduct. The Tribunal member then stated (transcript p.31):
…because I have no more questions, you can bring your wife back in now. I don’t think there’s any need to ask any questions of her, seeing you have the same claim
The Tribunal did not address the wife thereafter or raise any concerns with the husband about the genuineness of his wife’s claimed conversion.
After an adjournment, the Applicants’ advisor made submissions, which are recorded as partly indistinct in the transcript. The Tribunal member refused the husband’s request to hand him further documents, stating “they will all need to come through the advisor” (transcript p.35). The following exchange then occurred between the Tribunal and the husband:
TRIBUNAL: Those were the only questions I’ve got. This is an opportunity for you to have any final things you want to say.
APPLICANT HUSBAND (THROUGH INTERPRETER): Can I give a brief account from the beginning until the end, if there is any questions or ambiguity, I will explain…
TRIBUNAL: No, I’ve raised the areas where I have concerns, so unless this I going to introduce anything new, I’m satisfied with the interview I’ve had – the hearing we’ve had today, and all the other evidence contained in the file.
APPLICANT HUSBAND (THROUGH INTERPRETER): Regarding my belief, I wanted to stated that I always believed that Christianity is a heartfelt belief, not something in the Bible or something; it should be in your heart. I believe that I have to because of my Islamic background, I had some questions and I needed to get some answers, and they’re written inside. So after a while, I reach that acceptance and belief.
TRIBUNAL: No, I don’t have any more questions. Have you?
The advisor responded. These responses are also largely recorded as indistinct (transcript p.35-35). After referring to the provision of outstanding documentary evidence, the Tribunal ended the hearing.
After the Tribunal hearing the Applicants provided further documents in support of their review application.
The Tribunal Decision
In its decision of 8 May 2013 the Tribunal summarised the Applicants’ claims as claims to “fear returning to Iran because they claim to fear persecution for reasons of religion as Christian converts” (emphasis added).
The Tribunal set out the claims made by the Applicant husband in connection with the protection visa application. It recorded that the husband, the primary Applicant, attended a Departmental interview on 8 August 2012. However in the same paragraph it observed that the second Applicant “stated that she had no independent claims of her own”. The Tribunal did not explain whether this was a reference to a statement by the wife at a Departmental interview or to the manner in which the wife completed the protection visa application form.
The Tribunal also referred very briefly to the appearance by “the applicants” at the Tribunal hearing on 28 March 2013 to give evidence and present arguments and to the fact that it “also” received oral evidence from Pastor Piper and Ms Thorpe from the ACNA. While it is apparent that in some of its findings the Tribunal was referring to the husband’s oral evidence, the Tribunal did not otherwise summarise what occurred at the Tribunal hearing, except to note, in an apparent reference to the hearing, that the wife “was asked whether she has any claims separate from her husband and she stated that she did not”.
The Tribunal made adverse credibility findings about the husband (referred to as “the applicant”) as follows:
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Under the heading “credibility issues” the Tribunal continued to address the husband’s claims as follows:
There are a number of claims where I found the applicant lacked credibility. While I have accepted the applicants’ (sic) testimony where some type of documentary evidence has been presented, I do not accept his evidence where he has speculated on issues, given that they invariably painted a picture of an Iranian regime that sought to elicit information about the religious activities of Iranian students in Malaysia that was not supported by the country information presented or available to the Tribunal.
In the absence of country information to support such a claim, the Tribunal did not accept that there were spies or informants at the husband’s university in Malaysia. The Tribunal found it “questionable” that such informants could have known about the husband’s religious activities, but apparently be unaware of his participation in a public anti-regime protest that had been featured in the news. The Tribunal did not accept that the Iranian Embassy had contacted the university’s student services to enquire about the husband’s religious activities. The Tribunal found that this claim was “implausible” and that the Applicant husband had fabricated it in an attempt to establish that he was known to the Iranian authorities for his religious activities.
The Tribunal accepted that the husband had attended an anti-government protest in Malaysia as evidenced by photographs. However it had regard to the absence of any claimed negative consequences or resulting fear of persecution. It found:
Given that he has not claimed that there has been any adverse action against him or his family as a result of this, nor did he claim to fear any persecution as a result of this action, and he has made a return trip to Iran without coming to the notice of authorities I do not accept that there is a real chance either now or in the reasonably foreseeable future that he would be subjected to serious harm on the basis of this real or imputed political opinion.
The Tribunal then considered, but did not accept, the claim that the home of the wife’s brother was raided by Sepah officers who found a banned book. It is apparent that in this context the Tribunal considered whether this claimed incident was a basis for a well-founded fear of persecution on the part of the wife or the husband. It found:
I do not accept the claim that the primary applicant’s brother-in-law’s house was searched by the Sepah and banned books (sic) taken. Given the credibility issues surrounding the applicant’s overall claim and the convenient timing of the incident I find that it has been fabricated to provide a refugee profile for the applicant’s wife. The applicant also stated that he had no other fears of persecution except for his religious conversion when offered the opportunity to do so during the hearing. The second applicant also claimed that she had no claims separate to those of the first applicant. Regardless of this, I note that the second applicant was able to depart Tehran on her normal passport following the incident which indicates that, even if the incident did occur, the applicant’s wife was not of interest to authorities. (Emphasis added).
The Tribunal did not confine its findings about Christianity to the husband. It did not accept that “the applicants” were genuine Christian converts. It found that “they” had been “deliberate and targeted in their approach to establishing a Christian profile in order to improve their chances of gaining a protection visa”. It stated that while “they” had:
…undertaken some actions that are consistent with someone seeking to convert to Christianity, there are others that they have not and I find that the actions they did carry out were solely for the purpose of establishing a refugee profile. (Emphasis added).
The Tribunal accepted that both Applicants had sporadically attended the PCF church in Malaysia between January and April 2011 and that they had then attended weekly between April and September 2011. It had regard to the letter of support from Pastor Rami in Malaysia that stated that the Applicants were members of the PCF and to a letter from the senior pastor at the Poiema Christian Centre in Kuala Lumpur confirming that the PCF had used the Centre’s premises and that Pastor Rami had advised that the Applicants had been active in the PCF during their stay in Malaysia. However the Tribunal found that “this was done in a deliberate and targeted manner in order to establish a pre-existing link with Christianity before entering Australia”.
The Tribunal did not accept that the Applicants were “active” members of the FGA church in Kuala Lumpar and attended from October 2011 to February 2012 as claimed, although it accepted that they had attended the FGA on at least one occasion. It gave no weight to photographs of the Applicants at the FGA with a person said to be the pastor of the church in determining their connection with the FGA church. It had regard to the fact that the photographs did not show the Applicants participating in church activities, to the absence of any letter of support from an FGA pastor or members of that Church and to the fact that the husband did not know the name of the pastor of the FGA. Given its concerns regarding the credibility of the husband, the Tribunal found that the photographs (of both Applicants) had been “staged to improve their religious claim” (emphasis added).
The Tribunal considered the evidence about whether the Applicants had been inclined to explore other religions as part of a broader spiritual journey. It was of the view that:
While there is no prescribed level of religious knowledge that indicates the genuineness or otherwise of a conversion to Christianity, it is reasonable to expect that for such a major life-changing event a significant level of inquiry would be undertaken. For well-educated people who claim to have rejected Islam, the applicants showed no inclination to explore other religions as part of a broader spiritual journey. I do not accept that they didn’t think to do their own research. Given he was studying for his second degree and his wife was doing postgraduate study, both would understand the need for research to understand an issue. (Emphasis added).
The Tribunal found that:
They did not demonstrate any interest in pursuing deeper knowledge of the Christian faith either before or after the claims to have accepted Christianity. They made no attempt to undertake bible study or to learn anything about the scripture or the history of the faith. Despite the fact that he attended the FGA because he wanted to learn prayers in English they took no steps to undertake bible classes or the basic Christianity ‘Alpha’ course that FGA offered. Having simply attended two different types of church without seeking to understand anything other than the procedural differences between the two is not indicative of a journey towards adopting a new faith on the part of such well-educated people. (Emphasis added).
The Tribunal also found that given the husband’s low level of education in the new faith in Malaysia it was implausible that he would then start proselytising amongst other Iranian students and that the claim that he had sufficient religious knowledge to proselytise lacked credibility. The Tribunal found that the Applicant husband had fabricated this claim to establish a public profile as a proselytiser amongst the Iranian community at the university in Malaysia.
The Tribunal also found that the timing surrounding the husband’s actions with regard to his claimed Christian conversion in Malaysia was “structured in order to further his refugee claims and so that he was able to complete his studies”. It noted that despite his claims about Iranian spies and informers, the husband had been able to be a regular attendee for a year at the PCF and to travel to and from Iran in November 2011, without coming to the attention of the Iranian authorities. The Tribunal found that the Iranian authorities were either unaware of or did not care about the husband’s attendance at the PCF. It did not accept that the authorities thereafter became aware of his Christian activities. It found this claim was fabricated by the husband to establish a reason for leaving Malaysia and coming to Australia at the conclusion of his studies.
The Tribunal accepted that both Applicants were regular attendees at the Liberty Baptist Church in Sydney, that they had attended bible study and that they had been baptised there. It acknowledged the “strong” references provided by Pastor Piper and members of the congregation regarding both Applicants, accepting that all these witnesses had genuinely held beliefs about “the applicants’ religious beliefs”, but noted that they had only known “the applicant” (sic) for a year and were unaware of “any detailed religious background of the applicants, or their possible motivations” for attending the church.
The Tribunal had regard to Pastor Piper’s evidence that he accepted claims made by potential converts at face value and did not do any “checking” on their claimed religious journey and to his evidence about the number of Iranians he had baptised. It found that given Pastor Piper’s lack of knowledge of “the applicants’ background or motivations for seeking conversion”, it was unable to place any weight on his evidence regarding the genuineness of “the applicants’ conversion”.
The Tribunal expressed concern that the Applicants had deliberately presented to the Liberty Baptist Church because “they knew they could establish a Christian profile in Australia quickly and with no background checking” (emphasis added). It referred to its finding that their actions in relation to their claimed Christian conversion in Malaysia had been deliberate and targeted and found that the same process had been undertaken in Australia in order to establish a refugee profile. This finding was said to be supported by the speed with which they were baptised once in Australia. It then disregarded the conduct of both Applicants as follows:
As I advised the applicant during the hearing, s.91R(3) required me to disregard this conduct in determining whether the claimants have a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim. While I accept that the applicants attended the PCF in Malaysia I find that this was done in a deliberate and targeted manner. Given that the applicants had no genuine interest in Christianity when living in Malaysia, have not shown any interest in other religions or branches of Christianity either in Malaysia or since being in Australia I have disregarded their attendance at the Liberty Baptist church and their baptism. (Emphasis added).
The Tribunal then addressed another aspect of the evidence of the husband as follows:
The applicant was unable to respond as to why he chose the Baptist faith or that he knew anything about the other Christian faiths other than there were Catholics, Protestants, Armenian and Assyrians. When asked why he became a Baptist he claimed that Roman Catholicism could only be passed from father to the son so he would not be accepted. When he was advised that people could be baptised as Catholics at any age he then claimed that his research on the internet had told him that becoming a Catholic took a long time, and that a friend had introduced him to the Baptist church. He had never visited an Anglican or Catholic church. I find that his interest in baptism into the Christian faith centred on the speed with which he could be baptised in order to establish a refugee profile rather than any innate attraction to the particular creed or desire to learn more about the types of Christian faiths.
The Tribunal went on to make further findings in relation to both Applicants. It concluded that because it did not accept that they were genuine Christians, it did not accept that they had told anyone in Iran that they had converted to Christianity, or that the Iranian authorities would be aware of their conversion. It found that they would not be imputed with a Christian religious belief. It placed no weight on Pastor Piper’s speculation that there could have been a spy in his congregation and found that there was no evidence to support the claim that the Iranian authorities monitored Australian churches for converts.
Despite accepting that “the applicants” may be non-observant Muslims, the Tribunal had regard to the fact that the husband had never claimed that his non-attendance at mosques or lack of observance of Islamic belief had brought him to the attention of the Iranian authorities.
The Tribunal also addressed the husband’s claim that his wife’s non-observance of the Islamic dress code had caused her to be rejected for jobs. However it observed that “it was never claimed that they feared persecution as a result of this”, and noted that the Applicants had been able to travel freely to and from Iran since they first left that country. It continued:
Given the issues with the applicant’s credibility, the fact that he claimed that he had no fear of persecution when he left Iran and the fact that the secondary applicant stated when asked that she had no claims separate to those of her husband I do not accept that this occurred.
The Tribunal then found that:
Country information indicates that the Iranian authorities do not normally interfere in the private religious lives of their citizens, and that low levels of mosque attendance have also been indicated amongst the general Iranian population. Given this, I find that non-observant Muslims are able to live in Iranian society without coming to the attention of authorities.
The Tribunal concluded that “as a consequence of the above” it was not satisfied that there was a real chance “the applicants would be subjected to serious harm on the basis of their real or imputed religion” (emphasis added) now or in the reasonably foreseeable future.
The Tribunal also considered both Applicants’ claims in relation to the complementary protection criterion in s.36(2)(aa) of the Act. It stated that although it had disregarded “the applicants’ church attendance and baptism for the purposes of the applicant’s (sic) refugee claims” it had regard to these activities in assessing their claims relating to s.36(2)(aa). However the Tribunal found that because it did not accept that the Applicants were genuine converts, that they had told anyone in Iran of this or that anyone in Iran was aware or likely to become aware of their church attendance in Malaysia or Australia or of their baptism, it was not satisfied that there were substantial grounds for believing that there was a real risk that “the applicants will suffer significant harm” if they were returned to Iran.
The Tribunal concluded that it was not satisfied that “any (sic) of the applicants” was a person in respect of whom Australia had protection obligations and that it followed that “they” were also unable to satisfy the criteria for a member of the family unit of such a person. It affirmed the decision of the delegate.
This Application
The Applicants sought review by application filed in this Court on 11 June 2013. They now rely on a Further Amended Application filed on 22 January 2014. There are six grounds in the further amended application.
Section 425(1) of the Migration Act
Ground one in the further amended application is as follows:
1. The Tribunal misconstrued and failed to apply s.425(1) of the Migration Act.
Particulars
(a) Error in failing to give the second applicant (the applicant wife) an opportunity to give evidence and present arguments at the Tribunal hearing in circumstances where;
(i) She had indicated that she wished to participate in the hearing,
(ii) She was present and available to give evidence at the hearing.
The Applicants do not dispute that the wife filled out and lodged a Form D (which is the part of the protection visa application form for applicants who apply as members of the primary applicant’s family unit only). However it was submitted that the husband’s statement of claims accompanying the protection visa application clearly indicated that his wife also had her own claims to refugee status, albeit that those claims were put on the same basis as the claims of the husband. Thus, the husband claimed that both he and his wife had embraced Christianity in Malaysia, that they had both been baptised in Australia and that they both consequently feared persecution if they returned to Iran. In addition, it was claimed the wife’s brother had been found by Sepah to have anti-Islamic literature and that her family was being investigated.
It was submitted that as the wife was included as an applicant for a protection visa and as she had applied for review by the Tribunal, the duty of the Tribunal was to invite her to give evidence at a hearing as a review applicant in order to present arguments relating to the issues on review. It was submitted that this obligation arose in relation to all review applicants whether they completed Form C (as the husband did) or Form D (as the wife did).
The Applicants acknowledged that in this case the Tribunal did in fact issue an invitation to both the husband and wife “to give evidence and present arguments” at the hearing. It was pointed out that in both responses to the hearing invitation it was indicated that both the wife and the husband wished to take part in the hearing as review applicants. The Applicants also acknowledged that at the hearing the Tribunal had asked the wife whether she had any claims “separate” to those of her husband and that there was a negative response. However it was submitted that the hearing invitation issued to the Applicants by the Tribunal was a “hollow shell” or an empty gesture (see Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33]-[37] and Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 at [31]) in circumstances where the wife (as one of the review applicants) had indicated a desire to give evidence and present arguments and had attended the premises where the hearing was held to give evidence but was not given the opportunity to do so.
It was submitted that the Tribunal had misunderstood its duty under s.425(1) of the Act and that it had thus fallen into jurisdictional error when it indicated that the wife would only be called to give evidence if it had questions for her and in failing to otherwise give her the opportunity to give evidence and present arguments relating to the issues on review. The Applicants submitted that the words of s.425 of the Act were clear on their face and should be read in a manner consistent with the principle of natural justice that a person who was an applicant had a right to be heard by the decision-maker.
The First Respondent accepted that the Tribunal was under an obligation under s.425 of the Act to invite both Applicants to attend the hearing. It was submitted that in this case the invitation was not an “empty gesture” and that, given the way the Applicants made their claims and “conducted themselves” at the Tribunal hearing, the Tribunal was under no obligation to ask questions of the wife.
It was contended first that the Applicant wife at no stage made an independent claim for protection in her own right, but rather that she only made claims for protection on the basis of her membership of her husband’s family unit (see s.36 of the Act). Hence it was submitted that the only dispositive issue for the Tribunal to consider in relation to the wife was whether she was a member of the primary Applicant’s family unit and that as the Tribunal accepted the delegate’s finding on this issue it therefore did not need to “traverse” this issue at the hearing.
The First Respondent submitted that it was clear from the protection visa application that only the husband made an independent claim for protection and that the wife claimed protection only on the basis of her membership of his family. The First Respondent pointed out that only the husband had filed a statement of claims with the application. It was contended that although the statement occasionally referred to “we” (the husband and wife), this was consistent with the fact that only the husband had independent protection claims.
In addition, the First Respondent suggested that it was relevant that the delegate considered only the husband’s Refugee Convention and complementary protection claims and then concluded that as a result the wife’s application as a member of his family unit must fail. It was also submitted that the application for review to the Tribunal made it clear that the Applicant wife applied for review solely on the basis that she was a member of her husband’s family unit.
The First Respondent also submitted that even if it was permissible for the Applicant wife to change the basis for her claim that she met the criteria for the grant of a protection visa, she did not do so and hence that the Tribunal was only required to consider the husband’s Refugee Convention and complementary protection claims. It was acknowledged that in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 at [73] and [90] the majority of the Full Court of the Federal Court had accepted that there was no reason why an applicant could not apply for a protection visa both on the basis of claims of his or her own and also as a member of a family unit and also that an applicant could change the nature of his or her claims before the Tribunal. However it was submitted that it was apparent from the way in which the Applicant wife conducted herself at the Tribunal hearing that she did not seek to change the nature of her claims.
In the alternative, the First Respondent contended that even it if could be said that the wife had in fact advanced claims that she met the criteria for the grant of a protection visa in her own right, the Tribunal hearing was still not an empty gesture. It was submitted that the wife had “indicated at the Tribunal hearing that she wished to rely upon the evidence given by the first applicant” and that in effect she had elected not to give evidence.
Reliance was placed on the fact that when asked by the Tribunal whether she had any separate claims to those of her husband, the Applicant wife did not state that she had any claims separate to those of her husband and did not “protest” to the Tribunal about not giving evidence during the hearing. In addition it was said to be relevant that neither the husband nor the wife or their advisor had asked that the wife be permitted to give evidence. The First Respondent submitted that it was difficult to see what criticism could be levelled at the Tribunal in these circumstances. It was said to be clear from the wife’s conduct at the hearing that she was “content to rely upon the evidence given by the first applicant”. The First Respondent asserted that the circumstances in SCAR were very different to those in the present case, in that the applicant in SCAR was incapable of giving evidence.
In summary, the First Respondent submitted that in light of the factual matrix and the limited basis for the wife’s claims, as well as the absence of any request at the Tribunal hearing that the wife give evidence or of any complaint to the Tribunal in that respect it could not be said that the Tribunal failed to comply with s.425 of the Act.
Consideration
Section 425(1) of the Migration Act is as follows:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
It is not in dispute that the Tribunal’s obligation under s.425(1) was owed to the Applicant wife as a review applicant, as well as to the husband. What is in issue is whether the Tribunal met its obligation to the wife in circumstances where it had issued her with a written invitation to give evidence and present arguments in relation to the issues on review, but at the hearing the Tribunal member asked her only one question (whether she had any “separate claims” to those of her husband), then asked her to leave the hearing room and later told her husband that he did not think there was any need to ask questions of his wife “seeing you have the same claim”.
First, contrary to the First Respondent’s contention that the wife made claims only as a member of her husband’s family unit, I am satisfied that claims by the wife to fear persecution for reason of her religion and to fear significant harm arose squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.
As the Full Court of the Federal Court pointed out in NABE (No 2) the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material the Tribunal accepted “squarely” raised a case that was not articulated. As their Honours stated at [58]:
…a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
It is the case that only the husband completed Part C of the protection visa application form and that in Part B the wife stated she did not have her own claims for protection (and completed Part D as a member of her husband’s family unit). She did not provide a written statement in support of the protection visa application. In that sense she did not “articulate” a case. However the husband’s written statement accompanying the protection visa application very clearly claimed that both he and his wife had converted to Christianity and that both had engaged in Christian activities in Malaysia and Australia. In addition, he made a specific claim referring to Sepah officers investigating his wife’s family after finding a prohibited book in her brother’s home, as well as about past consequences for the wife because of her failure to wear Islamic dress in Iran. He claimed “they” could not return to Iran as Christian converts. The wife’s claim was not presented as a claim based only on her husband’s asserted religious beliefs and activities. Supporting documents referred to the religious beliefs and activities of both Applicants and to their fears. In other words, it was claimed that each Applicant feared persecution because of his or her religion. At the least, the protection visa application clearly raised claims for protection on behalf of the wife for reason of her religion as well as based on Sepah officers finding a prohibited book in her brother’s home.
The fact that the delegate focused on the husband’s claims as the primary applicant is not such as to indicate that no claims were raised clearly on the wife’s behalf on the material before the Tribunal. In any event, the delegate did not entirely ignore the possibility of independent claims by the wife, as these were considered in relation to Sepah officers discovering a prohibited book in her brother’s home.
Moreover, the fact that the wife sought review by the Tribunal on the same application form as her husband does not mean that claims on her behalf did not arise on the material before the Tribunal. Even if a secondary applicant both applied for protection and sought review as a member of the primary applicant’s family, if independent Refugees Convention or complementary protection claims on behalf of the secondary applicant arose clearly on all the material before the Tribunal (NABE (No 2) at [60] – [61]) the Tribunal would be obliged to consider such claims.
Further, although the Tribunal recorded that the wife had stated (whether in the Departmental interview to which she was not invited or in the protection visa application form) that she had no independent claims of her own, this is not determinative. Indeed in the present case it could be seen as reflecting the fact that the wife claimed to fear persecution by reason of religion (as did her husband) and that it was claimed that they converted and engaged in Christian activities together. In circumstances such as the present such a statement should not enable a Tribunal to avoid addressing claims that the wife herself feared persecution or serious harm that arose “clearly” or “squarely” on the material before it.
In my view, independent protection claims on the part of the wife arose clearly on the material provided in connection with the protection visa application. In this sense no issue arises as to the wife changing the basis of her claims while the matter was before the Tribunal. However even if, contrary to my view, the wife’s statement that she did not have her own claims for protection and the fact that she made her application as a member of the husband’s family unit were to be taken to mean that she made no claims in her own right to the delegate, in SZGME Black CJ and Allsop J envisaged that before the Tribunal an applicant could change the basis for a claim from being a member of a family unit to a claim based on his or her own fears of persecution (at [73]). Their Honours stated at [86]:
If there was only substantial compliance with Form 866 insofar as it related to SZGME being a member of a family unit, there was, nevertheless, a valid application for a protection visa. We see no basis in the Regulations to conclude that a further application had to be filed to permit consideration of a changed basis for consideration of a valid application for a protection visa.
I am satisfied that it is open to a secondary applicant to “change” the basis of his or her claims, in particular by raising a claim to fear persecution or significant harm in his or her right in addition to a claim based on being a member of the primary applicant’s family unit. Insofar as V120/00A v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 576; [2002] FCA 264 is said to be authority to the contrary, that case concerned circumstances in which the primary applicant (who had only made claims on his own behalf) died while the matter was before the Tribunal. In the absence of a primary applicant, the secondary applicants (who had initially applied solely as members of the primary applicant’s family unit) sought to change the basis on which they applied for protection visas. What was in issue was the effect of the death of the primary applicant on the application for review (V120/00A at [45]). No such issue arises in this case.
In this case, even if claims to protection on the ground of the wife’s religion and the Sepah incident had not arisen clearly in the protection visa application and documents provided to the Department, such claims clearly arose on the material before the Tribunal. In this sense the wife could be seen as having changed the basis for her claims by clarifying that, in addition to her application as a member of her husband’s family unit, she claimed to fear harm in her own right.
A considerable amount of further information and submissions referring to the wife’s conversion, beliefs, activities and fears (as well as to the religion and fears of the husband) was provided to the Tribunal. Notably, Ms Thorpe’s letter of support referred specifically to the wife’s involvement in the ACNA in Australia. Moreover the Applicants’ advisor claimed that the lives of both the husband and the wife would be in danger because of their conversion. This material squarely raised an independent claim to protection on the part of the Applicant wife.
Consistent with the conclusion that claims for the wife were raised squarely on the material before it, the Tribunal proceeded on the basis that such claims were made. It made findings about the wife’s commitment to and involvement in Christianity in Malaysia and in Australia. It disregarded her conduct in Australia. It also made findings about the fears of the wife based on the Sepah incident. Clearly it did not confine its consideration to the wife’s claims as a member of her husband’s family unit.
The Tribunal addressed its invitation of 20 February 2013 to give evidence and present arguments in relation to the decision under review to both Applicants as “review applicants”. In both Response to Hearing Invitation forms both Applicants indicated that they would take part in the Tribunal hearing as review applicants. They also asked the Tribunal to take oral evidence from other persons. They provided submissions and letters of support addressing the wife’s claimed religious beliefs and activities as well as the beliefs and activities of the husband.
I am not persuaded by the First Respondent’s contention that the invitation to the wife is to be read as confined to the “issue” of whether she was a member of her husband’s family unit. At the least, the issues arising in relation to the decision under review included whether the Sepah incident gave rise to a protection claim on behalf of the wife. In any event, as the material before the Tribunal squarely raised protection claims on the part of the wife based on her religion, the Tribunal was obliged to meet its obligation to the wife under s.425 of the Act.
Given this, it is not necessary to determine in these proceedings whether the “issues in relation to the decision under review” would be limited to the question of membership of the family unit for a secondary applicant who sought protection only as a member of the primary applicant’s family unit. However even if no independent claims to protection had been made in relation to a secondary applicant who indicated a desire to attend a Tribunal hearing as a review applicant “to give evidence and present arguments in relation to the issues arising in relation to the decision under review”, in my view such an applicant should nonetheless be give the opportunity to address all such issues. This would include issues that related to the substantive claims of the primary applicant, although whether such a meaningful opportunity was afforded would depend on the particular circumstances of the case, bearing in mind that the principal concern of s.425 is that an applicant “is to be given a meaningful opportunity to be heard” (SZDFZ v Minister for Immigration & Citizenship [2008] FCR 1; [2008] FCA 390 at [22] – [23] per Flick J.
While the scope of a “meaningful” opportunity may vary depending on the circumstances, in this case the wife was not given a meaningful opportunity to give evidence and present arguments at the Tribunal hearing in relation to the issues arising in relation to the decision on review, either in relation to her claims or to those of her husband.
The Tribunal was conducting the review as a hearing de novo. It had to consider the wife’s independent claims to fear persecution and significant harm insofar as such claims arose clearly on the material before it as well as the husband’s claims about his beliefs and activities. The Tribunal did consider the wife’s independent claims to protection in its reasons for decision. It did so in circumstances where the wife had indicated her desire to attend the hearing and to give evidence and present arguments in relation to the issues arising in relation to the decision under review as a review applicant. She attended the hearing. However the only opportunity the Tribunal afforded her at the hearing was to respond to one question as to whether she had claims separate to those of her husband. She was then told to leave the hearing room. She was not asked if she wished to give evidence about her claims or about those of her husband. It was left open that she might be called back to give evidence. That did not occur. Rather, the Tribunal later indicated to the husband (not to the wife) that it did not think there was any need to ask questions of the wife as she and the husband had the same claim. Towards the end of the hearing when the husband sought to give a “brief account from the beginning until the end” he was restrained by the Tribunal member who stated that he was satisfied with the hearing and all the other evidence in the file.
In the circumstances of this case I am not satisfied that it can be said that the way the wife “conducted herself” at the hearing (at which she was present only briefly) was such as to indicate that she did not seek to rely on her own claims based on her own religion and the impact of the Sepah incident on her as a member of her brother’s family. Her acceptance that she had no claims “separate” to those of her husband is to be seen in light of the fact that both Applicants claimed to fear harm based on their religious beliefs and activities.
Nor am I satisfied that the wife’s conduct at the hearing amounted to an indication that she wished to rely on the oral evidence given by her husband (which she did not hear) or that she, in effect, “elected” not to give evidence. The wife clearly indicated her desire to participate in the hearing in both Response to Hearing Invitation forms. She attended the hearing. I am not persuaded that because of the absence of protest, objection or a reiteration of the wife’s prior request to give evidence at the hearing (whether by the wife, her husband or their advisor) the Tribunal met its obligations to the wife under s.425.
It is for the Tribunal to afford a review applicant the opportunity required by s.425 of the Act. Given this, the manner in which the hearing proceeded and the wife’s absence from the hearing room while her husband gave evidence (on the instruction of the Tribunal), the absence of any express “protest” or “request” in relation to the wife giving evidence is not such as to indicate that she had resiled from her indication that she wished to participate in the hearing as a review applicant. From the wife’s perspective the invitation to the Tribunal hearing was an empty gesture.
The conclusion that the Tribunal failed to meet its obligation to the wife under s.425 of the Act is reinforced in this case by the fact that, as set out above, the Tribunal did not confine its reasons about the wife to her claim to be a member of her husband’s family unit.
In its reasons for decision the Tribunal appeared to refer to evidence of the wife to the delegate that she had no independent claims of her own. There is no reference to any other evidence of the wife to the delegate. She was not invited to the Departmental interview. The delegate made no reference to whether the wife attended or gave evidence at the Departmental interview. However in Part B of the protection visa application the wife did indicate “no” in response to the question “do you have your own claims to protection”.
In its reasons for decision the Tribunal did not summarise the evidence at the Tribunal hearing, beyond referring to the fact that “the applicants” (sic) appeared to give evidence and present arguments, an interpreter assisted and the Tribunal also received oral evidence from Pastor Piper and Ms Thorpe. However it is apparent from a consideration of the transcript of the Tribunal hearing that some aspects of the husband’s oral evidence were referred to by the Tribunal in its findings and reasons.
The Tribunal did record that the wife “was asked whether she had any claims separate from her husband and she stated that she did not”. It is apparent that this was a reference to the Tribunal hearing. Despite this, the Tribunal made detailed findings about substantive claims on the part of the wife. Not only did it reject the husband’s credibility and find that “he” had fabricated his claims, it also made findings about whether the wife had a well-founded fear of persecution on the basis of her real or imputed religion or whether she met the complementary protection criterion. Relevantly, the Tribunal did not accept that “the applicants” were genuine Christian converts. It found that “they” had been deliberate and targeted in “their” approach to establishing a Christian profile to improve “their” chances of gaining a protection visa. Moreover it disregarded the attendance at Church and baptism in Australia of both Applicants pursuant to s.91R(3) of the Act in assessing the Refugees Convention claims. In other words the Tribunal considered whether the wife had a well-founded fear of persecution or a complementary protection claim for reason of her religion as well as her claims as a member of her husband’s family unit.
In addition the Tribunal considered but did not accept the claim that the wife had been rejected for jobs in Iran because she did not wear Islamic dress. It made this finding because of issues with her husband’s credibility, as well as the fact that, when asked, the wife stated that she had no claims separate to her husband. The Tribunal also considered, but did not accept, the claims that the wife’s brother’s home in Iran was searched by Sepah officers and a book taken. Again, its findings in this respect were based on credibility issues surrounding “the husband’s overall claim” as well as the timing of the incident as well as the fact that the wife “claimed” she had no claims separate to those of her husband. On this basis it found that this claim had been “fabricated to provide a refugee profile for the applicant’s wife”. These issues had not been canvassed with the wife at the hearing.
In the particular circumstances of this case I am satisfied that the Tribunal failed to comply with s.425(1) of the Act and hence fell into jurisdictional error in that it failed to give the wife a meaningful opportunity to give evidence and present arguments at the Tribunal hearing in relation to the issues arising in relation to the decision under review. Ground one is made out.
Irrelevant Considerations
Ground two is that:
2. The Tribunal took an irrelevant consideration into account in failing to give the Applicant wife an opportunity to give evidence.
Particulars
(a) That the applicant wife did not have claims to protection that were independent from those of her husband.
The Applicants submitted that the Tribunal was under an obligation to invite each review applicant to attend a hearing and present his or her arguments in relation to the issues arising in relation to the decision under review. It was submitted that the fact that the Applicant wife said that she had no claims separate to those of her husband was “entirely irrelevant” and consequently that the Tribunal not only failed in its duty under s.425 but that it also made a procedural decision in the course of conducting its review that involved taking an irrelevant consideration into account in a manner that amounted to jurisdictional error. In essence, the Applicants submitted that by acting on the premise that there was no need to call the wife to give evidence at the hearing because she did not have claims independent to those of her husband, the Tribunal took an irrelevant consideration into account.
No authority was cited by the Applicants in support of the proposition that the Tribunal fell into error in taking into account the wife’s evidence that she did not have separate claims in deciding not to call her to give evidence. As the First Respondent pointed out, in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 Mason J (at [15]) referred to the considerations that a decision-maker must take into account as follows:
…What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 McHugh, Gummow and Hayne JJ stated at [73]:
... The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider...
In the present case, the factors the Tribunal was relevantly required to consider are to be determined primarily by reference to the Act, including the criteria for the visa in question as well as s.425. What was in issue was whether the Applicants met the relevant criteria for a protection visa (as was the case in Ex parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 at [40]).
It cannot be said that the fact that the wife agreed with the Tribunal’s proposition that she had no separate claims to those of her husband was “a consideration” of the kind that the decision maker could not take into account in relation to whether she met the criteria for a protection visa. This evidence was not an irrelevant consideration in the sense considered in Peko-Wallsend and Yusuf.
Beyond this, while the Tribunal failed to comply with s.425 in this particular case, that does not mean that it was not open to it to have regard to all the circumstances, including the wife’s response to a question about whether she had separate claims, in determining how to meet its obligation under s.425(1) of the Act. Even if the notion of “irrelevant considerations” could provide a basis for jurisdictional error in relation to the manner in which the Tribunal conducted its review, the factors the Tribunal could take into account in the context of s.425(1) are not limited by the subject matter, scope and purpose of the Act such as to exclude as irrelevant an applicant’s response to such a question.
It has not been established that by taking such evidence into account in its conduct of the hearing the Tribunal had regard to an irrelevant consideration in a manner constituting jurisdictional error. Ground two is not made out.
Section 426(3) of the Migration Act
The third ground is as follows:
Alternatively to grounds 1 and 2 above, if the Applicant wife was to be treated as merely a witness in the proceedings, the Tribunal erred in failing to have regard to the Applicant’s wishes that the Applicant wife give evidence, as is required by s.426(3) of the Migration Act.
The Applicants pointed out that under s.426(2) of the Act the husband had the right to give the Tribunal written notice that he wanted it to obtain oral evidence from a person or persons named in the notice. It was submitted that the wife was named in the relevant notice (being the Response to Hearing Invitation form) and hence that if the wife was not to be afforded an opportunity to give evidence as a review applicant, the Tribunal should have considered whether to take evidence from her as a witness for her husband. The Applicants relied on Minister for Immigrationand Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38] in relation to the Tribunal’s obligation to have regard to a s.426(2) notice and submitted that the Tribunal did not consider any of the matters referred to in Maltsin in considering whether to take evidence from the wife as a witness.
Section 426 of the Act is as follows:
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
In this case the Tribunal invited both Applicants to appear to give evidence at a hearing. In both Response to Hearing Invitation forms the wife herself expressly indicated her desire to give evidence and present arguments “as a review applicant”. The husband did not ask the Tribunal to take evidence from his wife as a witness (as was done in relation to Pastor Piper and Ms Thorpe). Indeed the Response to Hearing Invitation form distinguished between a review applicant and a witness. Even if in a particular case a primary applicant could indicate a desire that the Tribunal obtain oral evidence from a secondary applicant as a witness for the primary applicant, that is not what occurred in this case. The Tribunal’s obligation under s.426(3) to have regard to an applicant’s wishes did not arise as there was no written notice by the Applicant husband that he wanted the Tribunal to obtain oral evidence from the wife as required under s.426(2). The wife is not to be “treated merely as a witness”. Hence no issue of the application of s.426(3) of the Act arose in relation to the Tribunal’s failure to obtain evidence from the wife at the Tribunal hearing.
The Applicants sought to rely on two paragraphs in an affidavit of 24 October 2013 sworn by the Applicant wife and filed on 4 November 2013 in support of this ground. However as the obligation under s.426(3) did not arise, the issue of what evidence the wife could have given as a witness for her husband does not arise. Hence her affidavit evidence about the Tribunal’s findings and evidence she may have given had she been called as a witness for her husband at the Tribunal hearing is not relevant in relation to this ground (or in relation to ground four which was also relied on only if the wife was to be treated as merely a witness).
Whether unreasonable exercise of discretion
The fourth ground is as follows:
Alternatively to grounds 1 and 2 above, if the applicant wife was to be treated as merely a witness in the proceedings, the decision of the Tribunal not to call the wife to give evidence was unreasonable in the legal sense.
Particulars
(a) It was unreasonable for the Tribunal to have decided not to take evidence from the applicant in circumstances where;
(i)She was present and available to give evidence,
(ii)She was willing to give evidence,
(iii)She could have given first hand evidence about events in Iran and Malaysia,
(iv)Any findings made against the applicant husband would necessarily affect her,
(b) The matters particularised in paragraph (a) above were within the knowledge of the Tribunal.
As indicated, this ground was also relied on only if the Applicant wife was to be treated as merely a witness in the proceedings. It was contended that in such a case it was “manifestly unreasonable” for the Tribunal to fail to take evidence from the wife in circumstances where she was present and willing to give evidence as a material witness to events that had occurred in Malaysia and Australia and given that the decision would ultimately affect her. The Applicants relied on the discussion of the concept of unreasonableness in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (see French CJ at [26] and [28] and Hayne, Kiefel and Bell JJ at [66] – [68]).
However the Applicant wife is not to be regarded as merely a witness in the proceedings before the Tribunal. She sought to give evidence as a review applicant in her own right in circumstances where independent claims to protection on her part arose clearly on the material before the Tribunal. This ground does not address the reasonableness of the Tribunal’s approach to the wife giving evidence as a review applicant. Having regard to the limited basis on which this ground was put I am not satisfied that it is made out.
Whether irrational, arbitrary or unreasonable finding by the Tribunal
Ground five in the Further Amended Application is that:
The Tribunal’s finding that the applicants had adopted Christianity in Malaysia in a “deliberate and targeted manner in order to establish a pre-existing link with Christianity before entering Australia”(CB 316-7 [23]) was irrational, arbitrary or unreasonable so that the “satisfaction” required by section 65 of the Migration Act was not reached.
The Applicants took issue with the following finding by the Tribunal:
I accept that the applicants attended the Persian Christian Fellowship (PCF) sporadically between January and April 2011 and then weekly between April and September 2011. They have presented a letter from a Pastor Rami in Malaysia stating they were church members and a letter from the senior pastor at the Poiema Christian Centre in Kuala Lumpur saying that the PCF has been using their premises and that Pastor Ramzi had informed him that the applicants had been active in the PCF during their stay in Malaysia. I find however, that this was done in a deliberate and targeted manner in order to establish a pre-existing link with Christianity before entering Australia.
The Applicants submitted that this was a “bizarre finding” because there was no indication “as to where it came from”. It was asserted that such a statement assumed that the husband and/or his wife had knowledge of Australian immigration law (in particular refugee law) before they came to Australia. The Applicants submitted that there was absolutely no evidentiary basis for such an assumption. It was pointed out that in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Crennan and Bell JJ stated at [130]:
In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.
It was contended that there was no evidence upon which the Tribunal could come to the conclusion that the Applicants had contrived their church attendance in Malaysia and no evidence that either Applicant had a pre-existing knowledge of immigration law in Australia that indicated that the husband or wife knew that a pre-existing profile had to be established.
The First Respondent submitted that ground five of the Further Amended Application constituted nothing more than an expression of dissatisfaction with the Tribunal’s reasons and findings and that in light of the decisions of Li and SZMDS, it was clear that unreasonableness only attached to discretionary decision-making.
In relation to whether such reasoning was illogical or irrational, the First Respondent pointed out that, as Crennan and Bell JJ stated in SZMDS, a decision can only be impugned on irrationality grounds in circumstances where no reasonable person could have reached that conclusion. It was submitted the Tribunal’s conclusion that the Applicants had conducted themselves in a particular way in order to establish a pre-existing relationship with Christianity before coming to Australia was simply a factual finding and that the conclusion about the Applicants’ commitment to Christianity in Malaysia did not meet the high threshold that a claim of irrationality must reach.
A Tribunal’s finding may be irrational or illogical such that the state of satisfaction required by s.65 of the Act is not reached or so unreasonable that no reasonable decision-maker could have come to it and in that sense give rise to a jurisdictional error (see Li at [27] – [28]). The difficulty that faces the Applicants is that, as Crennan and Bell JJ stated in SZMDS at [130], a decision will only be irrational or illogical in this sense if no reasonable person could have reached such a conclusion. In SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58 Rares J explained this approach at [15]:
…even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
His Honour also explained SZMDS in the following way (at [3]):
Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage …(citation omitted).
In other words, the threshold required to reach a level of satisfaction that a finding is irrational or illogical in a manner establishing jurisdictional error is high. On balance, I am not satisfied that such threshold has been reached in the present case. While it is of concern that the Tribunal made findings about the wife’s motivation in the absence of any evidence from her, it has not been established that it was not possible for a rational person to arrive at the factual finding in issue on the material before the Tribunal. The Tribunal took into account its adverse credibility findings in relation to the husband in finding that he fabricated the claims. In addition, in relation to claims about the couple’s activities in Malaysia there was limited supporting information provided about the extent of their religious activities in Malaysia and no evidence that the Applicants had shown any inclination to undertake a significant level of inquiry before converting to Christianity in Malaysia. Even if it could be said that there was some lack of logic or rationality in the Tribunal’s finding that the Applicants’ actions in Malaysia were done in a “deliberate and targeted manner”, it has not been established that no reasonable decision-maker could have reached that conclusion (see SZMDS and SZOOR). Ground five is not made out.
Whether breach of s.425(1) in relation to dispositive issues
The sixth and final ground is that:
The Tribunal acted in breach of the requirements of section 425 of the Migration Act by not disclosing to the applicants, or either of them, that an issue in the proceedings was their motivation for adopting Christianity in Indonesia (sic), and specially whether they had contrived to establish a pre-existing link with Christianity before entering Australia.
It was clarified at the hearing that the reference to Indonesia in this ground was intended to be a reference to Malaysia. The hearing proceeded on the basis that the Application was to be treated as further amended in that respect.
The Applicants pointed to the Tribunal’s assessment of if, when and how often they attended church in Malaysia and submitted that the Tribunal’s finding of contrivance of a pre-existing link with Christianity appeared “to come from nowhere”. It was submitted that this finding was “far removed from the subject matter of the questioning” during the Tribunal hearing. It was contended that the Tribunal’s line of questioning of the husband at the hearing in relation to the Applicants’ attendance at church in Malaysia did not “alert” the Applicants to what was the “real issue” on the Tribunal’s mind (that is, their motivation for attending Church in Malaysia).
Reliance was placed on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 in relation to the Tribunal’s obligation to raise dispositive issues with an Applicant at a hearing. It was pointed out that in SZDFZ Flick J stated at [22] that “An inflexible attempt to define those “issues” in a particular way may tend to divert attention from the principle concern of s.425, namely that an applicant is given a meaningful opportunity to be heard”. The Applicants submitted that the concept of “issues” was not be construed narrowly.
The Applicants acknowledged that there was a discussion at the Tribunal hearing of what the Applicant husband did in Malaysia (transcript p.11-16), but submitted that at no time was his motivation for attending church put into issue. In particular, it was submitted that the Tribunal did not raise the issue of whether the husband had a motive of establishing a pre-existing profile or identity as a Christian. More generally it was submitted that as the Tribunal did not make it clear that the question of whether the Applicants’ apparent conversion to Christianity in Malaysia was contrived was an issue in the review, it had failed to comply with s.425(1) and thus committed a jurisdictional error.
The First Respondent relied on the remarks of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL at [47] that:
…It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.
The First Respondent pointed out that there was detailed discussion and questioning of the husband by the Tribunal member in relation to his conduct in Malaysia. In particular, at p.11 of the transcript at line 43 the Tribunal said:
Can you tell me more in detail about your Christian actions in Malaysia when you started to – first of all, tell me when you started having doubts about Islam, and then tell me what places you attended, what study you did in Malaysia in terms of Christian activities.
It was pointed out that the Tribunal not only questioned the husband on “their” activities in Malaysia, but that it also expressed some doubts about some parts of the claim, for example, in relation to whether Bible study was an essential part of researching the religion of Christianity. The First Respondent submitted that the dispositive issues were sufficiently canvassed at the hearing and the husband was permitted to give evidence in relation to his activities in accordance with s.425. It was further submitted that the Tribunal was not required to put to the husband that the Tribunal did not believe his evidence. The First Respondent suggested that SZDFZ could be distinguished from the present case because in that case there had been no discussion of the relevant issue at all, whereas in this case the issue of attendance at church in Malaysia was canvassed at the Tribunal hearing.
What was said in SZBEL by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is to be seen in light of the qualification their Honours then expressed as follows (at [47]):
…It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.(Emphasis added).
At the same time, as their Honours explained in SZBEL at [48]:
…Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
In this case the Tribunal was not under an obligation to put to the Applicants that they were lying about their motives for attending Church in Malaysia. It was, however, under a duty to ask each of them to expand upon any aspects of the evidence which may be important to the decision and may be open to doubt (see SZBEL at [47]). The circumstances in which each Applicant attended church in Malaysia were relevant to whether such action was in earnest, or undertaken in a deliberate and targeted manner and this was an important aspect of determining whether each of them had a pre-existing link to Christianity before entering Australia. Given the Tribunal’s finding under s.91(3) of the Act, this ultimately had an important impact on its final decision.
Flick J explained in SZDFZ that the term “issue” in s.425 of the Act should not be construed narrowly. As His Honour stated (at [23]):
…attempts to draw distinctions between, for example, a “conclusion” as opposed to an “issue,” it is considered, are not particularly helpful. Such attempts may tend to divert attention away from properly construing and applying the language in fact employed in s 425(1), namely “the issues arising in relation to the decision under review”. That phrase is not to be narrowly construed. The term “issues” is a term of wide import. Furthermore, the intent of s 425(1) to not narrowly confine the invitation that must be extended is only further reinforced by the use of the phrases “relating to” and “in relation to”. The width of the terminology of “relating to” and “in relation to” is well recognised.
In this case I am satisfied that, as the First Respondent submitted, the Tribunal did fulfil its obligation to raise dispositive issues in relation to the Applicant husband with him when it pressed him for “more detail about your Christian actions in Malaysia” (transcript p. 11 at line 43) and then raised specific questions about his commitment to studying and adopting Christianity (transcript p.14 at line 30). In this sense the Tribunal raised the dispositive issues concerning the husband’s conduct in Malaysia with him. He was given the opportunity to expand on aspects of his evidence in relation to his activities and his commitment to Christianity in Malaysia in accordance with s.425 of the Act.
However while the Tribunal did not fail to raise dispositive issues with the husband at the hearing, as a consequence of its failure to afford the wife the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, it also fell into error in failing to afford her the opportunity to address any issues about her religious activities in Malaysia. The Tribunal failed to raise dispositive issues with the wife in relation to her claims for protection on the basis of her religion and religious activities. In that respect this ground is made out.
The matter should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding one-hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 24 July 2014
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