SZTPW v Minister for Immigration

[2015] FCCA 259

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPW & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 259

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (RRT) – whether the RRT considered whether certain information would be the reason or a part of the reason for affirming that decision – whether the information said to be information the RRT failed to consider was information to which s.424A(1) of the Migration Act 1958 (Cth) applied – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)

SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609
SZQQA v Minister for Immigration & Anor [2014] FCCA 1923

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

First Applicant:

Second Applicant:

SZTPW

SZTPX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3039 of 2013

Judgment of: Judge Manousaridis

Hearing date: 3 July 2014

Delivered at: Sydney

Delivered on: 10 February 2015

REPRESENTATION

Counsel for the Applicant: Mr D Hughes

Solicitors for the Applicant: D’Ambra Murphy Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3039 of 2013

SZTPW

First Applicant

SZTPX
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The question that arises on this application for judicial review is whether the second respondent (Tribunal), before it decided to affirm the decision under review, considered that two items of information would be the reason for affirming that decision and, therefore, came under an obligation to provide to the applicants the particulars prescribed by s.424A(1) of the Migration Act 1958 (Cth) (Act) in relation to that information.

Events out of which questions arise

1. On 27 July 2012 the applicants, who are husband and wife, and nationals of Iran, applied for a protection visa. They claimed they had a well-founded fear of being persecuted in Iran because they had converted from Islam to Christianity.

2. The alleged facts on which the applicants relied are as follows. When visiting her sisters and uncle in Australia in 2008, the first applicant was encouraged by her sister and by her uncle to visit on a number of occasions a church near where they lived.[1] On her return to Iran, the first and second applicants privately watched Christian programs illegally via Satellite, those programs included Kalameh, Mahabbat TV, and Nejat TV.[2] On a second visit to Australia in 2009 the first applicant spent more time discussing her questions about Christianity with her sister and uncle, and visited the church she had visited in 2008.[3]

   [1] CB1-94, [25]

   [2] CB1-95, [29]

   [3] CB1-95, [31], [32]

3. On her return to Iran, the first applicant started to speak to the second applicant, her parents, and other relatives about what she had read and learnt about Christianity.[4] By late 2011 what had been irregular get-togethers became regular meetings between the first and second applicants, the first applicant’s parents, two of her sisters, the second applicant’s cousin and his wife, the second applicant’s brother, and the first applicant’s uncle’s granddaughter.[5] The meetings took place on Sundays.[6] Additionally, the second applicant exchanged a few emails with the first applicant’s second cousin who is a pastor in Belgium (The Pastor).[7] The Pastor sent to the second applicant five pages from the Gospel of Matthew that spoke about the miracles of Jesus.[8]

   [4] CB1-95, [36]

   [5] CB1-95, [37]

   [6] CB1-95, [38]

   [7] CB1-96, [39]

   [8] CB1-96, [40]

4. In February 2012, when the applicants and other persons who attended the regular meetings were watching “our usual Sunday night program and praying together”, the applicants’ home was raided by government agents who discovered the applicants had been watching a Christian program, and the extract from the Bible the first applicant’s cousin had sent.[9] All persons present at the meeting signed an undertaking after the second applicant had paid a bribe to the agents, and the government agents stated they would report the matter to the Information and Security Ministry.

   [9] CB1-96-98, [42]-[63]

5. After this incident, the applicants knew they were now under the security agents’ radar, they began thinking of ways to leave Iran.[10] The applicants further claimed that, after the incident, the applicants received suspicious telephone calls in which the first applicant was threatened that if they did not leave Christianity they would be killed.[11] Further, after the applicants left Iran, police came to the applicant’s house and asked neighbours where the applicants had gone.[12]

   [10] CB1-98, [67]-[69]

   [11] CB1-200, [18]

   [12] CB1-200, [18]

6. The applicants attended a hearing before the Tribunal on 9 October 2013. The first applicant gave evidence that her uncle who introduced her to Christianity (the Uncle) was a Christian for twelve years.[13] She did not know, however, which church he attended, although she said the church was far away. The first applicant also did not know where the Uncle had been baptised.[14] She said the Uncle did not currently attend church because he worked seven days a week. She did not know when the Uncle stopped going to church, but he was not going to church in 2008 when the first applicant visited Australia.[15]

   [13] CB1-199, [12]

   [14] CB1-199, [12]

   [15] CB1-199, [13]

7. The second applicant was also asked about the Uncle. He did not know into what religion the Uncle was baptised, or which church he attended.[16] The second applicant was also unable to say what type of wedding the Uncle had, or where it was conducted, although he did say that the Uncle’s wife was not religious, so the Uncle would not insist on a religious wedding.[17]

   [16] CB1-201, [25]

   [17] CB1-201, [25]

8. The applicants were asked questions about the Pastor. The first applicant said her mother had moved to Belgium about twelve years previously and her mother was ringing to check up on them. The applicants learnt the Pastor had become a minister, so they asked him to send them some pages, which he did. The first applicant did not know what type of minister he was, and the first and second applicants had not been in contact with him since they arrived in Australia.[18] The second applicant also did not know what denomination the Pastor was qualified as a minister in, and he had not re-established contact with the Pastor after the applicants had converted to Christianity in Australia.[19]

   [18] CB1-200, [17]

   [19] CB1-201, [26]

9. In support of their claims the applicants submitted a letter from the priest of a church (the Priest) in relation to the first applicant’s parents, the first and second applicants, and one of the first applicant’s sisters.[20]  The letter stated that, with the exception of one of the first applicant’s parents, the persons to whom it referred had been baptised and attended church.

   [20] CB1-168

10. On 14 October 2013 the same Tribunal member held a hearing in relation to an application for review made by the first applicant’s parents and three of the first applicant’s sisters (Second Proceeding). In those proceedings, the applicants also claimed they feared persecution if they returned to Iran because they had converted from Islam to Christianity. The alleged facts on which those claims are based are substantially the same as those on which the applicants in the case before me are based. During the hearing the Tribunal member put to one of the first applicant’s sisters that nobody seemed to know at what church the Uncle worshipped. The sister claimed the Uncle was working two jobs, and she did not think the Uncle had gone to church since she had been living with him.[21]

    [21] CB2-312, [29]

11. During the hearing in the Second Proceeding, the Tribunal asked questions of the Priest. The Priest reiterated his support for the family of which the first applicant was a member. He said the family had a gradual attraction to Christianity, that the first applicant and her sister had requested baptism, and that he did not perceive a desperate or conniving attitude.[22] The Priest said that in 2010 he had baptised two Iranians.[23] In response to the Tribunal’s question about how the Priest “did his due diligence checks regarding the validity of claims”, the Priest said he did not check on what churches applicants for baptism went to, or if they had watched particular programs. The Priest also said he could not recall previously having failed to baptise someone who had requested it.[24]

    [22] CB2-313, [36]

    [23] CB2-313, [37]

    [24] CB2-314, [38]

The Tribunal’s reasons

1. The Tribunal did not find the applicants to be reliable, credible or truthful witnesses.[25] The Tribunal found the first applicant’s evidence of her church attendances in 2009 was vague,[26] the first applicant made no effort to engage in any kind of educative process with someone religiously qualified,[27] and the Tribunal did not accept the Uncle provided the first applicant with religious mentoring.[28]

   [25] CB1-203, [40]

   [26] CB1-203, [41]

   [27] CB1-204, [43]

   [28] CB1-204, [44]

2. As to the last finding, the Tribunal relied on the absence of any evidence to indicate the Uncle practices, or has any affinity with, or knowledge of Christianity; it also relied on the first applicant’s not knowing what church the Uncle attended.[29] The Tribunal found it was not plausible that “someone who himself has no contemporary relationship with Christianity would seek to guide someone towards this particular religion or be in a position to answer questions regarding it with any authority”.[30] The Tribunal also did not accept the Uncle did not attend church because he worked seven days a week.[31] It found that the first applicant’s evidence about the Uncle’s marital arrangements was deliberately vague to hide the fact he had been married according to Islamic marital practices.[32]

   [29] CB1-204, [44]

   [30] CB1-204, [44]

   [31] CB1-204, [45]

   [32] CB1-204, [46]

3. The Tribunal did not accept the applicants have a cousin in Belgium who is a Christian minister, and that he sent the applicants an email with an attachment containing a few pages of Matthew’s gospel.[33] There was no indication why that was sent,[34] and there was no evidence of the email.[35] Further, there was no indication the Pastor had done any religious study.[36]

   [33] CB1-204, [48]

   [34] CB1-204, [48]

   [35] CB1-204, [48]

   [36] CB1-204, [49]

4. Based on these findings, the Tribunal did not accept Iranian security agents had raided the applicants’ home.[37] Further, the Tribunal found that if the applicants had been of interest to the authorities, they could have detained the applicants instead of harassing them for no real purpose, and there was no credibility to the claim that the authorities looked for them after they left Iran, but not during the four months between the raid and their leaving Iran.[38] The Tribunal said these findings are strengthened by the fact that the applicants left Iran in June 2012 even though they had been granted visas on 9 April 2012, and that their departure from Iran in June 2012 coincided with the first applicant’s sister’s wedding in Australia on 1 July 2012.[39]

   [37] CB1-205, [51]

   [38] CB1-205, [52]

   [39] CB1-20, [53]

5. Finally, the Tribunal noted the “very strong references” the Priest, his wife, and parishioners had provided to the Tribunal in support of the applicants and the first applicant’s parents and two sisters. The Tribunal accepted the references had been provided in good faith, but found the authors had “accepted the applicants’ claims of prior interest in Christianity and of persecution from Iranian authorities at face value whereas the Tribunal has found that these accounts have been fabricated”.[40]

   [40] CB1-205, [55]

The parties’ submissions

1. The applicant submits there are two items of information each of which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. The first is the statement “[i]t was put to her [one of the first applicant’s sisters] that nobody seemed to know what church her uncle worshipped at” contained in the Tribunal member’s reasons for decision in the Second Proceedings (Second RD).[41] The second item of information is the statement, also contained in the Second RD, that the Priest could not recall previously having failed to baptise someone who had requested it and gone through the required process.[42]

   [41] CB2-312, [29]

   [42] CB2-314, [38]; CB2-317, [60]

2. Counsel for the applicants submits that each of the items of information is “information” within the meaning of s.424A of the Act. The first item was “capable of undermining a central plank of” the applicants’ claim, namely that the Uncle had introduced the first applicant to Christianity as a result of which she converted to Christianity and faces persecution in Iran.[43] The second item of information was evidence that “had a tendency to undermine the applicants’ claims that their baptism in Australia supported their claims to be Christian”.[44]

   [43] Applicants’ written submissions, [23]

   [44] Applicant’s written submissions, [28]

3. Counsel for the applicant further submits that, although the Tribunal member does not refer to the two items of information in his reasons for decision, it should be inferred that, at some stage before he affirmed the delegate’s decision, the Tribunal member did consider that both items of information would be the reason, or a part of the reason, for affirming the delegate’s decision. Counsel relies on two matters for this submission. The first is that the Tribunal member determined the Second Proceeding, and the Tribunal member published the Tribunal’s reasons in relation to the matter before me on the same day he published the Second RD.

4. The second matter on which counsel relies is that the Tribunal member in fact relied on information to which the two items of information were closely associated or directly relevant. The information on which the Tribunal actually relied to which the first item of information was closely associated or directly relevant is the first applicant’s not knowing what church the Uncle attended.[45] The information on which the Tribunal actually relied to which the second item of information was closely associated or directly relevant is that contained in paragraph 55 of its reasons,[46] and in particular, the Tribunal’s findings that the Priest and the other authors of the letters of support accepted the applicants’ claims of prior interest in Christianity and of persecution from Iranian authorities at face value, whereas the Tribunal has found that these accounts have been fabricated. In relation to the second item of information, counsel also relies on what he submits is the similarity between the wording of paragraph 55 of the Tribunal’s reasons for decision and the wording of paragraph 60 of the Second RD.[47]

   [45] CB1-204, [44]; T16.20

   [46] CB1-205

   [47] T18.40

5. Counsel for the first respondent (Minister) submits there is no basis for inferring that the Tribunal member relied on the information. In any event, counsel submits that neither item of information is “information” for the purposes of s.424A of the Act.

Construction of s.424A(1)

1. In SZQQA v Minister for Immigration & Anor I made the following points about the meaning of the expression “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”:[48]

   a)The “information” to which s.424A(1) of the Act applies must be information the Tribunal has in its mind.

   b)The “information” must be in the Tribunal’s mind as part of a chain of reasoning – as a premise in an argument in the logician’s sense – the conclusion of which is the affirmation of the decision under review.

   c)The Tribunal must have in its mind the chain of reasoning of which the information forms part in advance of the Tribunal’s determination of the application for review before it.

   d)The Tribunal intends to affirm the decision under review on the basis of the chain of reasoning of which the information forms part. It is that intention that triggers the obligations imposed by s.424A(1) of the Act.

   e)The Tribunal’s intention is conditional. Before the Tribunal can act on its intention, and assuming the information does not fall within the category of information described in s.424A(3) of the Act, the Tribunal must do that which s.424A(1) of the Act requires the Tribunal to do. That is, the Tribunal must give the applicant particulars of the information, it must ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of its being relied on in affirming the decision under review, and invite the applicant to comment or respond.

   f)If the applicant comments or responds to the invitation, the Tribunal must consider the comments and response, before it considers whether to carry through with its intention to rely on the information.

   [48] SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 at [8]

2. In SZQQA I also considered the meaning of “information” for the purposes of s.424A(1) of the Act.[49] I there concluded that the information that is caught by s.424A(1) of the Act must be “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. It must be evidence on the basis of which the Tribunal intends to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or evidence in combination with other evidentiary material on the basis of which the Tribunal intends to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection.

   [49] SZQQA v Minister for Immigration [2014] FCCA 1923 at [10]-[14]

Are the items of information “information” within s.424A(1)?

1. As I have already noted, the first item of information is the Tribunal member’s putting to one of the first applicant’s sisters at the Second Proceeding hearing that “nobody seemed to know what church her uncle worshipped at”.

2. It is true, as counsel for the applicant submits, that the fact that “nobody” in the first applicant’s family knew what church the Uncle attended was a matter that undermined the applicant’s claim. Assuming “nobody” was intended to include the first applicant, the first applicant’s not knowing what church the Uncle attended is a basis for inferring that the Uncle did not attend church; and from that it could be further inferred that the Uncle was not a Christian and that, contrary to the first applicant’s evidence, the Uncle did not mentor the first applicant’s becoming a Christian.

3. In my opinion, the first item of information is not “information” within the meaning of s.424A(1) of the Act. It is not evidentiary material or documentation.[50] It is a determination the Tribunal made on the basis of other evidence. The “information” to which s.424A(1) applies “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”.[51]

   [50] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence” (SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).

   [51] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 (Finn and Stone JJ) quoted with approval by the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).

1. The second item of information is of a different character; it is evidence. It is evidence given by the Priest that he could not recall previously having failed to baptise someone who had requested it and gone through the required process. This evidence, together with other evidence, is capable of being employed by a decision-maker in a chain of reasoning that could undermine the applicant’s claim. From the fact that the Priest did not recall failing to baptise anybody it could be inferred that the Priest did not examine in any meaningful way the sincerity of the people he did baptise; from that inference, it could in turn be inferred that the Priest did not examine the sincerity of the applicants when he baptised them; and from that further inference it could be yet further inferred that the Priest’s opinions about the applicant’s commitment to Christianity should be given little or no weight.

2. Can it be said, however, that the evidence of the Priest’s absence of recollection, if employed in this way, undermines the applicant’s claim for protection? In my opinion, it can be so said. The effect of the use of the evidence in this way is to remove an evidentiary support – the evidence of a minister of the Church - of the applicants claim to being Christians.

Did the Tribunal consider whether information undermined applicants’ claims?

1. Even though I have concluded that the first item of information is not “information” within the meaning of s.424A(1) of the Act, I will consider whether the Tribunal considered whether either or both items of information would be the reason or a part of the reason for affirming the delegate’s decision.

2. When considering this question, both in relation to the first and second items of information, the question is not simply whether it could be said the Tribunal had the items of information in its mind at any time. What must be demonstrated is that the Tribunal had the information in its mind as part of a chain of reasoning, the conclusion of which would be the affirmation of the delegate’s decision, and that the Tribunal intended to affirm the delegate’s decision on the basis of that reasoning.

3. In my opinion, it is an available inference that at some time before he affirmed the delegate’s decision the Tribunal member did have in mind both items of information. That inference would arise from the fact that the Tribunal member prepared the Second RD at around the same time he prepared the reasons for decision in which he affirmed the delegate’s decision in the case before me. It cannot be further inferred, however, that at some stage the Tribunal considered that either item of information would be the reason or a part of the reason for affirming the delegate’s decision. The Tribunal does not in its reasons for decision refer to either item of information; nor is there anything in its reasons for decision which suggest that the Tribunal relied on either item of information as a reason, or part of a reason, for affirming the delegate’s decision. The decision the Tribunal made could easily be supported solely by reference to the matters the Tribunal explicitly referred to and relied on in deciding to affirm the delegate’s decision.

4. To conclude the Tribunal did at some stage consider either or both items of information would be the reason or a part of the reason for affirming the delegate’s decision would imply one of two possible sets of facts. One is that the Tribunal at some stage went so far as to formulate a chain or chains of reasoning which included either or both items of information which the Tribunal intended to employ to affirm the delegate’s decision (at which point, counsel for the applicants submits, the obligation to give the particulars referred to in s.424A crystallised), but then withdrew its intention to employ that chain or those chains of reasoning. The other possibility is that the Tribunal did not abandon its intention to employ the chains of reasoning that contained the items of information, but in fact relied on them without referring to them in its reasons. It is not possible rationally to infer either possible set of facts from the fact that the Tribunal member was aware of the items of information. Whether or not the Tribunal used the items of information in either of these ways cannot even reach the level of conjecture; at best, it is a matter for speculation.

5. I am not satisfied, therefore, that the Tribunal, as submitted by the applicants, considered that either or both items of information would be the reason or a part of the reason or reasons for affirming the delegate’s decision.

Disposition

1. The applicants have not made out the ground on which they seek to set aside the Tribunal’s decision. I propose, therefore to order that the application be dismissed, and that the applicants pay the Minister’s costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  10 February 2015