SZTPY v Minister for Immigration and Border Protection

[2015] FCA 565

FEDERAL COURT OF AUSTRALIA

SZTPY v Minister for Immigration and Border Protection [2015] FCA 565

Citation:	SZTPY v Minister for Immigration and Border Protection [2015] FCA 565
Appeal from:	SZTPY & Ors v Minister for Immigration & Anor [2015] FCCA 260
Parties:	SZTPY, SZTPZ, SZTQA, and SZTQB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 178 of 2015
Judge(s):	DAVIES J
Date of judgment:	5 June 2015
Catchwords:	MIGRATION – whether s424A(1) breached – whether Tribunal must give information that would be reason or part of reason
Legislation:	Migration Act 1958 (Cth) ss 424A
Cases cited:	SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Date of hearing:	28 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Appellants:	Mr D Hughes
Solicitor for the Appellants:	D’Ambra Murphy Lawyers
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 178 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTPY
First Appellant

SZTPZ
Second Appellant

SZTQA
Third Appellant

SZTQB
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	5 JUNE 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first, second and third appellants pay the first respondent’s costs.  

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 178 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTPY
First Appellant

SZTPZ
Second Appellant

SZTQA
Third Appellant

SZTQB
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	5 JUNE 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellants have appealed the decision of the Federal Circuit Court ("FCC") dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the delegate of the first respondent refusing the appellants' protection visas.

2. The first and second appellants are husband and wife. The third and fourth appellants and the fifth applicant below (“SZTQC”) (who did not appeal) are their daughters. This appeal was heard together with the appeal in NSD 176 of 2015.

3. The Appellants are nationals of Iran. The first and second appellants applied for a protection visa claiming that they are Christian and fear persecution in Iran by reason of their faith.  In short, they claimed to have converted from Islam to Christianity whilst in Iran and to have come to the adverse attention of the security forces for their interest in Christianity. They claimed that they feared being arrested, interrogated and jailed should they be returned to Iran because of their Christian faith. The third and fourth appellants applied as members of the family unit of the first and second appellants.

4. The first appellant claimed that she first became interested in Christianity after two of her daughters, SZTQC and the first appellant in NSD 176 of 2015 (“SZTPW”) stayed with her brother in Australia. The Tribunal found that the appellants were not credible and that they had fabricated their claims.

5. The alleged facts on which the appellants relied were set out as follows at [4] to [8] of the FCC decision:

   The first [appellant] became interested in Christianity through the encouragement of one of her daughters [SZTPW] who had herself been introduced to Christianity by the first [appellant’s] brother (the Brother), and by another daughter…[SZTQC] when SZTPW had visited Australia. The second named daughter became interested in Christianity when she lived with the Brother.

   During the first [appellant’s] frequent visits to the home of her daughter, SZTPW, over the past four years, the first [appellant] and (so I infer), her husband, the second [appellant], became interested in Christianity. 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. The program invited viewers to join in prayers, and included a segment that discussed the Bible.

   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. During the raid the security agents became aware the [appellants] had been watching the Christian program, and discovered pages from the Bible that the first [appellant’s] son-in-law had received from the first [appellant’s] cousin in Belgium. After the first [appellant’s] son-in-law had spoken privately with one of the agents, all those present signed an undertaking. 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.

   After the incident, the first and second [appellants] did not feel safe in their own home as SZTPW began to receive threatening telephone calls. All this coincided with the first and second [appellants’] two daughters being due to graduate in Australia and one of the first and second [appellants’] daughter’s being due to marry in Australia.

   As for SZTQC, she arrived in Australia when she was 17 years of age. 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. The [appellant] organised with her friend to attend that church. After her first visit, SZTQC became more curious about Christianity, and started to talk about it with the Brother and her friends. After the first and second [appellants] 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.

   [footnotes omitted]

6. The evidence given by the appellants at a hearing before the Tribunal on 14 October 2013 was set out at [10] of the FCC decision as follows:

   The Tribunal asked the first [appellant] and SZTQC questions about the Brother. The first [appellant] said she did not know anything about the Brother’s religious observance because he was very busy and they never had time. 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.

7. The Tribunal had earlier, on 9 October 2013, held a hearing in in respect of the claim made by SZTPW and her husband (“the First Proceeding”). The claims for protection made by SZTPW and her husband in that proceeding were based on substantially similar matters as the claims for protection made by the appellants in this case. The FCC reasons recorded, at [9], that in the first proceeding:

   During that hearing…the Tribunal asked questions of both SZTPW and her husband about the Brother. SZTPW said the Brother is a Christian for twelve years. 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. She said the Brother did not currently attend church because he worked seven days a week. She did not know when the Brother stopped going to church, but he was not going to church in 2008 when SZTPW visited Australia. SZTPW’s husband said he did not know into what religion the Brother was baptised, or which church he attended. 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.

   [footnotes omitted]

8. No issue was taken with the FCC’s summary.

9. Other relevant evidence at the Tribunal hearing in this case was the first appellant’s evidence, recorded in the Tribunal’s decision at [19]:

   Regarding her [brother’s] conversion she claimed that they never really had time to talk about it. She didn’t know anything about his religious observance as he was very busy and they never had time. It was put to her that she had claimed to be attracted to Christianity because of her daughters, her brother was in Australia and had converted and stayed with him but yet she never raised the issue at all. She again claimed he was busy and sometimes Lila spoke to him about it but she didn’t. Asked why he kept the name …given it was very Islamic, she claimed that she didn’t know.

10. The Tribunal also referred, at [25], [29] and [30], to SZTQC’s evidence that:

    [SZTQC] claimed that she was in Australia and feeling a bit lonely and that at the end of 2007 her uncle… had spoken to a friend about a church in the city that was beautiful and she went with a friend from college to the church, which was St Mary’s Cathedral. She immediately felt calm and peaceful and this led her to go to church often. Asked to clarify she said that she and her friend often went inside a church they saw, about two or three times a month but more often during exams.
    ……

    It was put to her that nobody seemed to know what church her uncle worshipped at, and she claimed he was working two jobs and didn’t think he had gone to church since she had been living with him, but he had watched SBS programs and had religious books on his shelves. She didn’t know whether her uncle now went to church and when she was asked whether she spoke to him about Christianity, she said that she didn’t and had some issues with him.  

    Asked when she started taking instruction into Christianity, she claimed that she started when her family arrived in Australia and she considered they were safe. Asked why her uncle…had kept his religious Shi’a name now he was Christian she said that she didn’t know.

11. At [47] , [48]  and [49] the Tribunal found as follows:

    I am not satisfied that someone as interested as the first-named [appellant] claimed to be would not have sought to learn more about the religion while here, particularly given she had a daughter [SZTQC] who spoke English and who alleged that she also shared an interest in Christianity, and a brother who was allegedly a Christian convert, either of whom could have assisted her exploration.

    I do not accept that her failure to do so was because she was too busy with engagement activities for one of her daughters at the time. I do not accept that she never raised the issue of Christianity with her brother… or knew anything of his religious observance because they never really had time to talk about it. The period of time (two months) the first-named [appellant] was in Australia should have been more than sufficient to make at least some practical effort to explore some aspects of a new religion to which she claimed she had become attracted.  

    I also do not accept that she 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 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.

12. Based on these and other findings, the Tribunal did not accept that the appellants had any pre-existing interest in Christianity prior to arriving to Australia nor did it accept that they had come to the attention of the Iranian security authorities because of their interest in Christianity.

13. Before the FCC, the appellants argued that the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) by failing to put particulars of certain information to the appellants. The information was said to be information relating to the first appellant’s brother which the Tribunal became aware of during the hearing of the first proceeding  which took place on 9 October 2013, a few days prior to the hearing in this matter on 14 October 2013: that is, that ‘nobody seemed to know what church [the brother] worshipped at.’

14. It was submitted that in the course of the first proceeding, the Tribunal became aware that neither SZTPW nor her husband could identify where SZTPW’s uncle (the first appellant’s brother) attended church and this was information for the purposes of s 424A of the Act. The FCC held that it was ‘information’ for the purposes of s 424A, but that the Tribunal had not breached s 424A. The FCC reasoned, at [23] to [25], as follows:

    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 [appellants] 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.

15. The grounds of appeal before this Court allege the following:

    1.The learned Federal Circuit Judge (primary judge) erred in holding that the respondent Tribunal complied with s424A of the Migration Act 1958 (Cth) (Act). His Honour ought to have held that the Tribunal contravened the section because:

    a.   the primary judge correctly held at [22] and [23] that the Tribunal was aware of “information” within the meaning of s424A(1), being that neither SZTPW or her husband could identify what church her brother attended; however

    b.   the primary judge erred by holding at [24] and [25] that the Tribunal did not consider that the information would be a reason, or part of the reason, for affirming the decision under review.

    2.The primary judge erred at [27] by holding that the Tribunal acted irrationally or on the basis of no evidence. His Honour ought to have held that the Tribunal’s finding under challenge was irrational, arbitrary, capricious, or made without evidence.

16. The ‘information’ to which s 424A(1) refers is ‘information’ which ‘would be’ the reason or part of the reason for affirming the decision. In SZBYRv Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 the High Court stated at [17] that:

    The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.

    In other words, s 424A depends on the Tribunal’s ‘consideration,’ that is, its opinion, at the time when the Tribunal became aware of the information, that such information would be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31at [24]. Furthermore, the information must be information which ‘would,’ not which ‘could’ or ‘might,’ be the reason or part of the reason for affirming the decision under review: SZLFX  at [25].

17. The appellants argued that s 424A was breached by reason that it was clear that the Tribunal in the first proceeding was aware of the significance that neither appellant in that case could say where SZTPW’s uncle (in this proceeding, the first appellant’s brother) went to church and the significance was said to be borne out by the fact that at the hearing on 14 October 2014 in this matter the Tribunal put to SZTQC that ‘nobody’ seemed to know what church the brother (uncle) attended. It was submitted that it was clear that the Tribunal considered that the information ‘would be a reason or part of a reason for affirming the decision under review.’ The appellants argued that the FCC’s error was to focus too closely on the Tribunal’s reasons and to place an inappropriate gloss on the expression ‘would be’ in s 424A by considering whether it may be inferred that the Tribunal ‘intended’ to employ that information to affirm the delegate’s decision.

18. No error in the approach of the FCC has been shown. Although the assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal became aware of the information, that is not to say that the Court cannot have regard to the reasons of the Tribunal to determine whether the Tribunal had the requisite state of mind. Whilst the assessment is not dependent upon whether the information did form part of the Tribunal’s reasons, the reasons why the Tribunal affirmed the decision under review may be relevant in determining whether the inference can be drawn that, at an antecedent time, the Tribunal must have reached the state of mind that it considered that the information would be the reason, or part of the reason, for affirming the delegate’s decision.

19. Although the Tribunal put to SZTQC in this case that ‘nobody’ seemed to know what church the brother (uncle) attended, it is not a necessary inference from that question that the Tribunal had considered that the evidence in the first proceeding would be the reason, or form part of the reason, for affirming the decision under review. The assumption implicit in the appellants’ argument is that the question was only able to be put because of the Tribunal’s knowledge gained in the first proceeding. However it cannot be inferred that the question was based upon the Tribunal’s knowledge gained in the first proceeding when the first appellant in this proceeding also gave evidence to like effect. Tellingly, the question was not put to the first appellant in this proceeding.

1. It is clear from the Tribunal’s reasons that the Tribunal’s decision to affirm the delegate’s decision was based on its finding that the appellants were not telling the truth and had fabricated their claims. The Tribunal did not accept the appellants’ evidence as reliable, credible or truthful. That conclusion was based on a number of matters including the first appellant’s evidence that she knew nothing about her brother’s religious observances. It is therefore not a necessary inference that the Tribunal had considered that the evidence in the first proceeding would be the reason, or form part of the reason, for affirming the decision under review in the circumstance where the Tribunal’s reasons show that the adverse credibility findings against appellants were based on the first appellant’s own testimony and, moreover, the testimony given by SZTQC in this case. Accordingly the first ground of appeal fails.

2. The second ground of the application before the FCC claimed that the Tribunal’s reasoning at [49] was irrational. At [49] the Tribunal stated that it did not accept that the first appellant had watched any Christian satellite television programs in Iran. The first appellant had claimed that she and her daughter had watched a show called Love (Mohabat) once a week on Sundays from the end of 2011 it came on about 7:00 pm or 7:30 pm and went on for an hour or an hour and a half. A check of the Mohabat TV website programme for Sundays failed to reveal any show of that name nor any show that lasted for the time period she claimed. It was asserted that there was no rational reason why a website of a television station accessed in November 2013 would allow conclusions to be drawn about the programming from two years earlier as programs change.

3. At  [27] the FCC rejected that the argument, reasoning:

   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 [appellant] claimed that program was shown by Mohabat TV in late 2011 and early 2012 as a reason for not accepting the [appellant’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.

4. I am not persuaded that the FCC was wrong. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Crennan and Bell JJ said at [131]:

   … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogicalor irrationalor unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   The finding made by the Tribunal was a matter on which reasonable minds may differ. Furthermore, not every lapse in logic will give rise to jurisdictional error: SZMDS. In the present case, a conclusion that the finding had no rational basis would not of itself vitiate the Tribunal's decision. The factual finding was only one of a number of separate and independent concerns in the Tribunal's reasons and, even if the finding was not supported by a logical basis it cannot be said that the ultimate decision was, as a consequence, illogical or irrational:  SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58. Accordingly the second ground of appeal fails.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated: 5 June 2015