SZTOR v Minister for Immigration

[2015] FCCA 690

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 690

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that a reasonable apprehension of bias attended it, the Tribunal breached s.424A of the Migration Act 1958 and failed to consider all the evidence.

Legislation:

Migration Act 1958, ss.36, 91R, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
SZSJA v Minister for Immigration & Border Protection (2013) 139 ALD 36

First Applicant: SZTOR

Second Applicant: SZTOS

Third Applicant: SZTOT

Fourth Applicant: SZTOU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2955 of 2013

Judgment of: Judge Cameron

Hearing date: 10 March 2015

Date of Last Submission: 10 March 2015

Delivered at: Sydney

Delivered on: 27 March 2015

REPRESENTATION

Solicitors for the Applicants: Mr N. Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd

Solicitors for the Respondents: Ms L. Buchanan of Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2955 of 2013

SZTOR

First Applicant

SZTOS

Second Applicant

SZTOT

Third Applicant

SZTOU

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are Iranian citizens who arrived in Australia on 28 June 2012.  On 23 July 2012 the first applicant lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in Iran because of her religion.  Although her husband, the second applicant, contemporaneously lodged a separate protection visa application, his claim to fear persecution in Iran was based on her claims.  The third and fourth applicants, who are the children of the first and second applicants, were included in the first applicant’s protection visa application as members of her family unit.

2. On 29 October 2012 the applicants’ applications were refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of their departmental decisions.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings the Court’s 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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the first applicant’s claim for a protection visa were set out in the Tribunal’s decision. Relevant factual allegations are summarised below.

2. The first applicant made the following claims in her protection visa application:

   a)she had made an unsuccessful claim for asylum in the Netherlands in 2003.  On her return to Iran, she found employment with a bank but was dismissed after six months because of her close association with some Christian customers;

   b)she first became familiar with Christianity whilst in the Netherlands.  She attended a church there for four years;

   c)she had read the Bible on the internet and had watched several Christian satellite TV stations in Iran;

   d)in June 2011 she was caught attending a Christian gathering in Tehran and was detained, questioned and physically assaulted for four nights.  The second applicant secured her release through the payment of bribes;

   e)after her release, she and the second applicant travelled to Turkey and the Netherlands. She attended church in the Netherlands nearly every week during their time there;

   f)in February 2012, following their return to Iran, the person who had taken their bribe informed them that he knew that the first applicant had attended church in the Netherlands and had been watching Christian television.  He threatened to reopen her file unless they gave him more money, which they did;

   g)she left Iran in May 2012 having been access to education, public employment and personal freedoms; and

   h)she had been attending church and Bible study classes in Australia. 

3. The first applicant appeared before the Tribunal on 21 October 2013 and made the following additional claims:

   a)her life would be in danger in Iran because she had converted to Christianity;

   b)her path to Christianity had started in 2000 when on a cold night she walked into a church in the Netherlands and had been taken into a prayer room by congregation members.  She had attended church several times thereafter and had been given information about Christianity by some friends but had not otherwise received, nor had she sought out, any instruction on Christianity during her time in the Netherlands;

   c)she had had a vision of Jesus on 5 December 2000 and considered herself to be Christian from that time;

   d)she had met a woman named Marjan whilst living in Holland.  When Marjan found out that the first applicant’s father was coming to Tehran, she gave him a package for the first applicant to give to a woman in Tehran in the hope that the two of them would meet;

   e)that woman ran Bible classes in Tehran.  The first applicant attended those classes regularly from January 2011 until her arrest in June 2011;

   f)she did not stay in contact with Marjan after her (the first applicant’s) return to Iran in 2003 although Marjan had stayed with her during a visit in 2006.  They had also met in 2007 and 2011 in the Netherlands;

   g)she had watched some Christian satellite channels while in Iran between 2003 and 2011 but had had to be careful in case her neighbours heard or her family found out.  She had not talked about Christianity over the telephone because it had been dangerous to do so;  and

   h)she and the other applicants had been baptised in Australia in February 2013.

4. The second applicant did not attend the Tribunal hearing because one of their children was unwell.  The first applicant told the Tribunal that the second applicant’s claims were the same as hers and that he had no separate claims.

5. At the hearing the Tribunal also took evidence from a Ms K, whom the first applicant claimed to have met during Bible study classes in Iran, and from the minister of the church which the applicants had been attending in Australia.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal was not satisfied that the applicants were persons 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”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the first applicant’s account of her introduction to Christianity, namely that she had randomly walked into a church in the Netherlands in 2000 to get out of the cold and was taken into a prayer room by members of the congregation, had been vague and was inconsistent with someone who had professed a love for a new religion;

   b)despite the first applicant’s claim that she considered herself to be Christian from the time of her vision of Jesus in December 2000, she appeared to have done little to advance her understanding of Christianity between that time and her departure from the Netherlands in February 2003.  Amongst other things, she did not speak to the minister nor did she seek out any religion classes to better inform herself about Christianity and her failure to do so was, in the Tribunal’s view, indicative of someone who had no active interest in exploring a new religion.  The Tribunal therefore did not accept that the first applicant had attended churches in the Netherlands other than as a tourist;

   c)the Tribunal did not accept that the applicant had a friend named Marjan who had introduced her to a person who ran a house church in Iran, noting that:

   i)the first applicant’s history of contact with Marjan appeared implausible.  For example, she claimed that she had not maintained contact with Marjan and yet had been able to host Marjan and her husband in Iran in 2006 and also claimed to have spent time with her in the Netherlands in 2007 and 2011;

   ii)despite the fact that Marjan allegedly knew of her interest in Christianity, the first applicant never used her to facilitate any access to Christian learning whilst in the Netherlands;

   iii)the method that Marjan used to put the first applicant in contact with the Tehrani woman was implausible.  The Tribunal found that if Marjan and the first applicant had been able to communicate in order to arrange meetings in 2006 and 2007, then it would be reasonable to assume that Marjan could have found a less convoluted way of arranging a meeting between the Tehrani woman and the first applicant;

   iv)in the Tribunal’s view, it was not credible that Marjan, who had known of the first applicant’s interest in Christianity since the early 2000s, would suddenly arrange a meeting with a house church leader in Tehran in 2012; and

   v)the first applicant claimed that she had revealed to the Tehrani woman at their first meeting that she was interested in Christianity.  The Tribunal found that this was inconsistent with the first applicant’s claims to have practised security procedures with respect to her Christian beliefs up to that point;

   d)having found that the first applicant did not have a friend named Marjan, the Tribunal also did not accept that the Tehrani woman (if she existed) had been a house church leader or that the first applicant had been detained while attending a house church.  The Tribunal further noted in this regard that although the first applicant had claimed to fear the authorities following a four-day detention and interrogation, she had been able to proceed on a holiday for more than six weeks which took her to two countries where she could have sought protection.  The Tribunal found that such actions were not indicative of someone who feared persecution from the authorities;

   e)in light of these matters the Tribunal did not accept that the first applicant had had any interest in Christianity before her arrival in Australia in 2012.  The Tribunal found that the applicants had fabricated their claims in order to be granted protection visas.  Consequently, the Tribunal did not accept that the first applicant had been denied access to education for religious reasons, that she had been dismissed from her job because of her close association with Christian customers or that she had been denied access to public employment and personal freedoms;

   f)given its finding that the house church sessions had never occurred, the Tribunal was not satisfied that the first applicant and Ms K had not simply described some real person whom they both knew but who was unconnected to any house church.  It also noted that their similar descriptions of the Tehrani woman’s age suggested a degree of collusion.  In the circumstances, the Tribunal gave little weight to the testimony of Ms K;

   g)the Tribunal found that the first applicant’s actions whilst in Australia were not indicative of someone who had undertaken any significant spiritual examination in that she had not explored any other religions or other branches of Christianity and had not displayed any significant knowledge of the other branches of Christianity.  While the Tribunal acknowledged that there was no specific test as to what a sufficient degree of research entailed, it found that the complete absence of any research suggested a deliberate and targeted approach;

   h)the Tribunal noted that the second applicant’s claimed conversion followed the same path as the first applicant’s.  It found that as the first applicant had not been a credible witness,  and given that the second applicant had not provided details regarding his claimed conversion and had not attended the hearing, the Tribunal was not satisfied that he had genuinely converted to Christianity;  and

   i)the Tribunal found that the applicants had engaged in church activities in Australia for the sole purpose of strengthening their claims for refugee status. The Tribunal therefore disregarded this conduct pursuant to s.91R(3) of the Act.

Proceedings in this Court

1. In their amended application the applicants alleged:

   1.The Tribunal failed to comply with s.424A of the Migration Act 1958.

   Particulars

   (a)The Tribunal committed jurisdictional error by failing to give, in accordance with s.424A of the Migration Act 1958, clear particulars of the following adverse information to the Second Applicant:

   (i)          The Tribunal did not accept that the Second Applicant was a genuine convert to Christianity ‘in the light of the credibility issues’ that it found concerning the First Applicant.

   (ii)     The Tribunal did not accept that the Second Applicant was a genuine convert to Christianity because of the non-attendance of the Second Applicant at the hearing held by the Tribunal.

   (b)That information was information that the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision, as it undermined the Second Applicant’s claim that he had a well-founded fear of persecution for reason of religion and was a person to whom Australia owes protection obligations under the Refugees Convention; and or that he was entitled to complementary protection pursuant to s.36(2)(aa) of the Act.

   2.There is an apprehension of bias.

   Particulars

   (a)The decision is infected with jurisdictional error because there is an apprehension of bias. The Tribunal:

   (i)          (not pressed)

   (ii)     required the First Applicant to have explored other religions or other branches of Christianity; and or

   (iii)   required the First Applicant to have displayed significant knowledge of other branches of Christianity; and or

   (iv)    applied a test that a sufficient degree of research be done into other religions and branches of Christianity;

   (v)     and held as adverse conduct the decision of the First Applicant to go to one church only, described by the Tribunal as being a ‘deliberate and targeted approach’;

   before one can be considered to have genuinely converted to Christianity, despite there being no such constraint or constraints when it comes to questions of faith and conversion.

   (b)The posited fair-minded observer would therefore reasonably apprehend that the Tribunal had predetermined the application and or that conclusions had been reached with a mind not open to persuasion and that it would be unable or unwilling to evaluate all the material fairly.

   3.The Tribunal failed to have proper regard to or failed to consider the First Applicant’s claims and evidence.

   Particulars

   (a)The Tribunal failed to have proper regard to or failed to consider the First Applicant’s claims and evidence by:

   (i)          finding that the First Applicant stated, in response to a question from the Tribunal as to why she didn’t explore other ways of surrounding herself with Christianity such as by going to Armenia, that ‘she wasn’t looking for a church to go to’ (CB295 at [27]) when no such response was given to the Tribunal by the First Applicant.

   (ii)     finding that the First Applicant stated that ‘she didn’t care about the different paths and didn’t have the time for research as she was a mother’ (CB295 at [30]), when no such response was given the Tribunal by the First Applicant.

   (iii)   (not pressed)

   (iv)    (not pressed)

   (v)     (not pressed)

   (b)(not pressed)

   (c)failing to have regard to why the Second Applicant could not attend the hearing before finding that the Second Applicant was not a genuine convert to Christianity because of his non-attendance at the hearing held by the Tribunal.

   4.     (not pressed)

Ground 1

1. In the first ground of the amended application the applicants alleged a breach of s.424A of the Act in relation to the second applicant. That section relevantly provides:

   (1)     Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

2. The applicants alleged that the information which the Tribunal should have identified to the second applicant was its conclusion that it did not believe the first applicant and also its rejection of his claim to be a genuine convert to Christianity because he had not attended the Tribunal hearing.

3. The first of these two matters was not “information” as that word in understood in the context of s.424A. It was the product of the Tribunal’s reasoning process and so not a matter which had to be notified pursuant to s.424A(1).

4. The second matter was of a different quality.  What the Tribunal relevantly said was:

   I have found the first-named applicant not to be a credible witness and not accepted that her conversion is genuine.  The second-named applicant’s claimed conversion has followed the same path as the first-named applicant.  I have taken into account the references provided … and the testimony provided by Mr Fitzgerald however in light of the credibility issues of the first-named applicant and given the second-named applicant’s lack of detail regarding his claim for conversion as well as his non-attendance at the hearing either in person or by phone, I am also not satisfied that he has genuinely converted to Christianity. (at para.59)

5. The Tribunal was not saying there that the second applicant’s absence from its hearing was a factual matter which was weighed in the balance.  It was simply noting that the second applicant had not attended the hearing, and so had not adduced his own evidence on the issues relevant to him, with the consequence that the evidence was insufficient to satisfy the Tribunal that he had converted to Christianity.  The Tribunal was identifying evidence it did not have, not what it did have.

Ground 2

1. The second ground of the amended application was an allegation of apprehended bias grounded on the following particulars: 

   The Tribunal:

   (i)(not pressed)

   (ii)required the First Applicant to have explored other religions or other branches of Christianity; and or

   (iii)required the First Applicant to have displayed significant knowledge of other branches of Christianity; and or

   (iv)applied a test that a sufficient degree of research be done into other religions and branches of Christianity;

   (v)and held as adverse conduct the decision of the First Applicant to go to one church only, described by the Tribunal as being a ‘deliberate and targeted approach’ …

1. The applicants alleged that the Tribunal’s views on these matters were such as to induce the relevant lay observer to apprehend the possibility that it was not bringing an open mind to the review.  The applicant referred to the following paragraph from the Tribunal’s decision and exchanges from the transcript of its hearing.  In para.56 of its reasons the Tribunal stated:

   Her actions once in Australia are also not indicative of someone who has undertaken any significant spiritual examination.  She had not explored any other religions or other branches of Christianity, and didn’t display any significant knowledge of the other branches of Christianity. While the Tribunal acknowledges that there is no specific test as to what is a sufficient degree of research, the complete absence of any suggests a deliberate and targeted approach.  She had gone to a single church on the recommendation her friend Ms [K], but was vague on the differences between the different Christian denominations saying that she didn’t care about the different paths and that she didn’t have time for research as she was a mother.

   As its hearing the following exchanges occurred:

   Q206:Since you’ve been in Australia what steps have you taken to explore other religions other than Christianity or indeed other branches of Christianity?

   A(I):Since I came to Australia I’ve actually had time to explore into this and Jesus himself actually said this time’s for me very appropriate.  I’ve had time to … Bible studies at home, I did go to church … easily use these Bible studies.  I went to every Bible study that the church had planned.  We had, three times a week we had Bible studies.       

   Q207:Yeah, no, sorry, you’re in Australia.  Every religion and every branch of Christianity is open to you.

   A(I):      Ah hmmm.

   Q208:Have you taken any steps to explore the multiple branches of Christianity or the other religions that are in Australia to fulfil your spiritual needs and to determine what best attracts you?

   A(I):No, I have found … why should I look for something else?  It’s like I want this cup, I buy it, I have it.  I don’t go every day looking for other cups.  The real God is just one and I’ve found that in Jesus and it’s given me the peace.  What else do you need in your life but peace?

   Q209:Why, do you know which branch of Christianity you’re currently baptised in?

   A(I):      Yes.

   Q210:   What branch is that?

   A(I):      Protestant Pentecostal. 

2. The applicants submitted that the relevant observer would [sic] reasonably have apprehended from that paragraph and those exchanges the possibility that the Tribunal “had predetermined the application or that conclusions had been reached with a mind not open to persuasion and that it would be unable or unwilling to evaluate all the material fairly”.

3. An allegation of apprehended bias will not be determined by a consideration of the decision-maker’s reasons for decision: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. Consequently, the only evidence relied on by the applicants which was potentially relevant to this allegation was the quoted portions of the transcript. As to that evidence, I agree with the Minister’s submission that:

   In circumstances where the first applicant’s claims for protection arose from a claimed religious conversion, a fair minded lay observer might expect the Tribunal to explore with the applicant the basis for her conversion and the steps she has taken leading to such conversion. … There is nothing in the circumstances of this case which might give rise to any such apprehension.

Ground 3

1. In the first particular of the third allegation the applicants contended that on two occasions the Tribunal had understood the first applicant’s evidence incorrectly and so had not considered the evidence which she had in fact given. 

2. The Tribunal must consider an applicant’s claims in light of the facts as disclosed by the evidence in its possession. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant met the criteria for the grant of the visa sought, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 360-361 [46] per Sackville J, Black CJ and Sundberg J agreeing; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at 198-199 [145]. See also in the context of fraud on an applicant and on the Tribunal, SZSJA v Minister for Immigration & Border Protection (2013) 139 ALD 36 at 46-47 [53]-[59].

3. However, I am not persuaded that the Tribunal’s paraphrasing and abbreviation of the first applicant’s evidence bespoke a misunderstanding of it.  It seems to me to be a reasonable, if shorthand, reflection of what she said.  In any event, the applicants did not seek to identify in what way any misunderstanding of the sort they sought to identify might have had a bearing on the outcome of the review.

4. The remaining particular of this allegation which the applicants pressed concerned the second applicant’s absence from the Tribunal hearing.  However, as explained earlier in these reasons, the second applicant’s absence was of no material significance to the Tribunal’s decision except to the extent that it meant that he did not adduce evidence such that the Tribunal could be satisfied that he met the criteria for the grant of a protection visa.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 27 March 2015