SZTPY v Minister for Immigration
[2015] FCCA 260
•10 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTPY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 260 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (RRT) – whether RRT considered certain information would be the reason or part of the reason for affirming the decision under review – whether RRT made an irrational finding or made a finding without any evidence to support the finding – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3) |
| SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 |
| First Applicant: Second Applicant: Third Applicant: Fourth Applicant: Fifth Applicant: | SZTPY SZTPZ SZTQA SZTQB SZTQC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3041 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 Hughes |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The first, second, and fifth applicants pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3041 of 2013
| SZTPY |
First Applicant
SZTPZ
Second Applicant
SZTQA
Third Applicant
SZTQB
Fourth Applicant
SZTQC
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Two questions arise on this application for judicial review. The first is whether the second respondent (Tribunal), before it decided to affirm the decision under review, considered that one item of information would be the reason or a part of the reason for affirming that decision so that it 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. The second question is whether the Tribunal made a finding that was either irrational or was made without any evidentiary support.
Background
The applicants are nationals of Iran. The first two applicants are husband and wife. The third, fourth, and fifth applicants are their daughters.
On 27 July 2012 the applicants applied for a protection visa. The first two applicants and the fifth applicant applied in his or her own right. The third and fourth applicants applied as members of the family unit of which the first and second applicants are members. The first, second and fifth applicants claimed they have a well-founded fear of being persecuted in Iran because they have converted from Islam to Christianity.
The alleged facts on which they relied are as follows. The first applicant became interested in Christianity through the encouragement of one of her daughters (SZTPW) who had herself been introduced to Christianity by the first applicant’s brother (the Brother), and by another daughter, the fifth applicant (SZTQC), when SZTPW had visited Australia.[1] The second named daughter became interested in Christianity when she lived with the Brother.[2]
[1] CB2-167, [22]. SZTPW is not one of the applicants in these proceedings, but was an applicant in a separate proceeding before the Tribunal, and is one of two applicants in a separate application for judicial review in this Court.
[2] CB2-167, [23]
During the first applicant’s frequent visits to the home of her daughter, SZTPW, over the past four years, the first applicant and (so I infer), her husband, the second applicant, became interested in Christianity.[3] After SZTPW’s second visit to Australia in 2010, weekly gatherings were organised at SZTPW’s home on Sunday evenings to watch a broadcast via satellite on the Mohabbat TV channel.[4] The program invited viewers to join in prayers, and included a segment that discussed the Bible.[5]
[3] CB2-168, [32]
[4] CB2-168, [33]
[5] CB2-168, [33]
These weekly meetings took place for approximately three months before 5 February 2012 when a meeting that was taking place on that day was raided by security authorities.[6] During the raid the security agents became aware the applicants had been watching the Christian program, and discovered pages from the Bible that the first applicant’s son-in-law had received from the first applicant’s cousin in Belgium.[7] After the first applicant’s son-in-law had spoken privately with one of the agents, all those present signed an undertaking.[8] Before leaving, one of the agents informed those present that he would have to report the matter to the Information Ministry which meant that those present might have to go to court to answer apostasy charges.[9]
[6] CB2-168, [35]
[7] CB2-168, [42]-[44]
[8] CB2-170, [48]
[9] CB2-170, [50]
After the incident, the first and second applicants did not feel safe in their own home as SZTPW began to receive threatening telephone calls.[10] All this coincided with the first and second applicants two daughters being due to graduate in Australia and one of the first and second applicants daughter’s being due to marry in Australia.[11]
[10] CB2-170, [54]
[11] CB2-170, [55]
As for SZTQC, she arrived in Australia when she was 17 years of age.[12] She said that one day she heard the Brother talking over the telephone to one of his friends about attending a church in the city.[13] The applicant organised with her friend to attend that church.[14] After her first visit, SZTQC became more curious about Christianity, and started to talk about it with the Brother and her friends.[15] After the first and second applicants arrived in Australia, and informed SZTQC of what had occurred in Iran, SZTQC decided to apply for protection because she became scared of the prospect of her being returned to Iran and, as a Christian, she will not deny her faith in Christ to anyone under any circumstances.[16]
[12] CB2-176, [22]
[13] CB2-177, [28]
[14] CB2-177, [29]
[15] CB2-177, [31]
[16] CB2-179, [51]
On 9 October 2013 the Tribunal held a hearing in relation to an application for review made by SZTPW and her husband. During that hearing (First Proceeding Hearing), the Tribunal asked questions of both SZTPW and her husband about the Brother. SZTPW said the Brother is a Christian for twelve years.[17] She did not know, however, which church he attended, although she said the church was far away. SZTPW also did not know where the Brother had been baptised.[18] She said the Brother did not currently attend church because he worked seven days a week.[19] She did not know when the Brother stopped going to church, but he was not going to church in 2008 when SZTPW visited Australia.[20] SZTPW’s husband said he did not know into what religion the Brother was baptised, or which church he attended.[21] SZTPW’s husband was also unable to say what type of wedding the Brother had, or where it was conducted, although he did say that the Brother’s wife was not religious, so the Brother would not insist on a religious wedding.[22]
[17] CB1-199, [12]
[18] CB1-199, [12]
[19] CB1-199, [13]
[20] CB1-199, [13]
[21] CB1-201, [25]
[22] CB1-201, [25]
On 14 October 2013 the applicants attended a hearing before the Tribunal. The Tribunal asked the first applicant and SZTQC questions about the Brother. The first applicant said she did not know anything about the Brother’s religious observance because he was very busy and they never had time.[23] SZTQC said that the Brother was working two jobs, and she did not think he had gone to church since she had been living with him. She said that the Brother watched SBS programs, and had religious books on his shelves. SZTQC also said she did not know whether the Brother now went to church and she did not speak to the Brother about Christianity. She said she had issues with the Brother.[24]
[23] CB2-311, [19]
[24] CB2-312, [29]
The Tribunal’s reasons
The Tribunal found the applicants’ evidence regarding their claims to lack credibility, and did not find the applicants to be reliable, credible or truthful witnesses.[25] The Tribunal found the applicants fabricated their claims in order to be granted a protection visa.[26] The Tribunal relied on a number of matters for these findings.
[25] CB2-314, [44]
[26] CB2-314, [44]
First, the first applicant was vague on what the nature of her attraction and spiritual journey towards Christianity was.[27] Second, the first applicant’s husband was similarly vague in his recollection of prior attendance in Australia, saying he had gone to other churches but couldn’t remember their names, or the years he attended.[28] Third, the Tribunal was not satisfied that a person who claimed to be as interested in Christianity as the first applicant claimed would not have sought to have learned more about Christianity while in Australia.[29] Fourth, the Tribunal did not accept the first applicant did not discuss with the Brother the issue of Christianity, or know anything of his religious observance, because they never really had time to talk about it.[30]
[27] CB2-314, [45]
[28] CB2-315, [46]
[29] CB2-315, [47]
[30] CB2-315, [48]
The fifth matter on which the Tribunal relied is of importance in this application for judicial review, for it is the Tribunal’s reliance on this matter which the applicants submit manifests irrationality by the Tribunal. That matter is as follows:[31]
I also do not accept that she [the first applicant] watched any Christian satellite television programs in Iran. She claimed that she and her daughter [SZTPW] (and later a larger group of followers) had watched a show called Love (Mohabbat) once a week on Sundays from the end of 2011 that came on about 7 or 7.30 pm and went for an hour or an hour and a half. A check of the Mohabat TV website [accessed on 2 November 2013] program for Sundays failed to reveal any show of that name, nor any show that lasted for the time period she claimed. All shows around the time she nominated were half an hour, including one targeted at Afghanistan.
[31] CB2-315, [49]
Seventh, the Tribunal did not accept the first applicant was not conscious of the time of the program, or that she could not focus on the program because she had to prepare and serve food.[32] Eighth, the Tribunal was not satisfied that, given Mohabat was a 24 hour station the first applicant would not have devoted herself more to learning about the new religion; the Tribunal did not accept the first applicant’s various reasons for not doing so, these being that she only watched on Sundays because that was the day that Christians worshipped, and that she only looked at it on SZTPW’s television, and that her daughters were more interested than she was.[33]
[32] CB2-315, [50]
[33] CB2-315, [50]
Ninth, the Tribunal did not accept the applicants had a relative in Belgium who had sent them an extract from the Bible,[34] or, if they did have such relative, that he had done any religious study.[35] Tenth, the Tribunal did not accept that SZTQC made any effort to research into Christianity before the arrival of her family in Australia.[36] Her claims to have done so were vague, unverifiable, and lacking in credibility.[37] Despite having lived with the Brother for years, SZTQC knew nothing about the way the Brother practiced his Christianity.[38] Although she claimed her research into Christianity consisted in her watching some programs on SBS television, she could not name any such programs except one she claimed was named the “Sound of Music” of which no record of such a religious program could be found.[39] And the Tribunal did not accept SZTQC visited churches because of their peacefulness.[40]
[34] CB2-315, [51]
[35] CB2-316, [52]
[36] CB2-316, [54]
[37] CB2-316, [54]
[38] CB2-316, [54]
[39] CB2-316, [54]
[40] CB2-316, [55]
Because the Tribunal did not find the first, second, and fifth applicants had any prior interest in Christianity, or watched any Christian religious programs by satellite, or had any correspondence with any cousin in Belgium, the Tribunal did not accept the applicants pursued an interest in Christianity in Iran and, therefore, did not accept there was any raid by security authorities while the first and second applicants were watching religious programs.[41]
[41] CB2-316, [56]
Did the Tribunal comply with s.424A of the Act?
Counsel for the applicant submits that, at the First Proceeding Hearing the Tribunal became aware of the information concerning the Brother to which I refer in paragraph 9 of these reasons (Information). That is, the Tribunal became aware that neither SZTPW nor her husband could identify what church the Brother attended. Counsel submits that the Tribunal considered that information would be the reason for affirming the delegate’s decision but did not provide to the applicants the particulars prescribed by s.424A(1) of the Act.
Counsel for the applicant relies on two matters. The first is that the Tribunal member who decided the claims that are the subject of the application before me also determined SZTPW’s and her husband’s claims, and he handed down both decisions at the same time. Second, the Information is closely associated or directly relevant to information counsel submits the Tribunal relied in affirming the delegate’s decision in the case before me. That information is that identified in paragraph 29 of the Tribunal’s reasons, where the Tribunal put to SZTQC that “nobody seemed to know what church [the Brother] worshipped at”.[42]
[42] CB312, [29]
The Minister, on the other hand, submits the Tribunal did not have regard to the information when affirming the delegate’s decision.
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”:[43]
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.
[43] SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 at [9]
In SZQQA I also considered the meaning of “information” for the purposes of s.424A(1) of the Act.[44] 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.
[44] SZQQA v Minister for Immigration & Anor [2014] FCCA 1923 at [10]-[14]
The first question, therefore, is whether the Information is “information” within the meaning of s.424A of the Act. In my opinion, it is. It is evidence given by SZTPW and her husband that they do not know what church the Brother attends; and it is evidence that is capable of undermining the applicants’ claims. From that evidence, if accepted, it could be inferred that the Brother was not a Christian; that SZTPW, in turn, was not introduced to Christianity by the Brother as she claimed she had been and was not, therefore, a Christian; that SZTPW, in turn, did not encourage the first applicant to become a Christian; and that, therefore, the first applicant and the other applicants were not Christians, contrary to what they claimed.
The next question is whether the Tribunal considered the Information would be the reason or part of the reason for affirming that decision under review. It is reasonably open to infer that the Tribunal had in mind the Information at some stage before it affirmed the delegate’s decision in this case. The basis of that inference would be that the Tribunal member considered SZTPW’s and her husband’s claims, and he delivered the Tribunal’s reasons for decision in that case at the time he delivered the Tribunal’s reasons for decision in this case. But assuming the Tribunal did have in mind the Information, that by itself cannot reasonably give rise to the inference that the Tribunal considered the Information would be the reason, or part of the reason for affirming the delegate’s decision.
The Tribunal did not refer to the Information in its reasons; and there is nothing to suggest that the Tribunal relied on the Information in deciding to affirm the decision. There not being any indication in the Tribunal’s reasons that the Tribunal considered the information would be the reason or a part of the reason for affirming the delegate’s decision, the only possible set of facts in which the Tribunal could have considered the Information as the reason or part of the reason for affirming the delegate’s decision is either if the Tribunal did in fact intend to consider the Information in that way (at which point, counsel for the applicants submits, the obligation to give the particulars referred to in s.424A crystallised), but decided not to do so; or if the Tribunal did carry through with its intention and did in fact consider the Information to be the reason or part of the reason for affirming the delegate’s decision, but it did not record that it did so in its reasons for decision. Whether the Tribunal did either of these things is no more than a matter of speculation.
I am not persuaded that the Tribunal at any stage considered that the Information would be the reason or part of the reason for affirming the delegate’s decision. This ground of review, therefore, fails.
Irrational finding or finding with no evidence
The applicant submits the Tribunal acted irrationally, or on the basis of no evidence, by relying on the fact that as at 13 November 2013 there was no program on the Mohabat TV website that matched the program the first applicant claimed she and others had watched every Sunday for the three months up to the day on which the Iranian security agents raided SZTPW’s home. Counsel for the applicant submits that it is irrational to infer from the fact that a particular program was not shown on a Sunday in November 2013 that such program was not shown on a Sunday in late 2011 and early 2012. Counsel submits it is irrational because the broadcast and scheduling of programs change over time so that a program’s not being scheduled at a particular time and day at one point in time does not mean that the program was not scheduled on the same day and time at some earlier or later point in time.
In my opinion, it was reasonably open to the Tribunal to rely on Mohabat TV’s website’s not including in its scheduled programs as at 13 November 2013 “Love” on the days and times the applicant claimed that program was shown by Mohabat TV in late 2011 and early 2012 as a reason for not accepting the applicant’s evidence that she and others did watch “Love” in late 2011 and early 2012. Although it may readily be accepted that the broadcast and scheduling of programs are liable to change over time, it is also part of everyday experience that the time and days on which many programs are broadcast do not change over time. That by itself rendered it rational for the Tribunal to rely on the current programming of Mohabat TV as a basis for inferring the programming of Mohabat TV at some earlier point in time.
That it was rational for the Tribunal to rely on Mohabat TV’s programming in November 2013 as a basis for inferring Mohabat TV’s programming in late 2011 and early 2012 may be demonstrated this way. Assume, contrary to what the Tribunal’s enquiry revealed, that as at 13 November 2013 Mohabat TV did in fact broadcast “Love” on the days and times the first applicant claimed she and others viewed that program in late 2011 and early 2012. Would that information have been reasonably capable of corroborating or otherwise supporting the first applicant’s claim that she and others viewed “Love” in late 2011 and early 2012 on the days and times she claimed? In my opinion, there can be no doubt that it could have been so considered. If that is so, the Tribunal’s observing that Mohabat TV did not in November 2013 schedule “Love” simply records the absence of evidence that could have corroborated or otherwise supported the applicants’ claims, and which, therefore, could have been relevant to the Tribunal’s considering whether it should be satisfied that the applicants had made out their cases for protection.
For these reasons, the applicants’ second ground of review also fails.
Disposition
The applicants have failed to make good the two grounds of review which they pressed at the hearing before me. I propose, therefore, to order that the application be dismissed, and that the first, second, and fifth applicants pay the Minister’s costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 February 2015