SZUDL v Minister for Immigration
[2014] FCCA 2018
•4 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUDL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2018 |
| Catchwords: MIGRATION – Application for extension of time – substantive application seeking review of Refugee Review Tribunal – not in the interests of the administration of justice to extend time – extension of time refused. |
| Legislation: Migration Act 1958 (Cth) ss.5, 36, 65, 91R, 417, 424A, 424AA, 441G, 476, 477 |
| SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 Vu v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 SZSFK v Minister for Immigration & Anor [2013] FCCA 7 SZTVL v Minister for Immigration & Anor [2014] HCATrans 10 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZTET v Minister for Immigration & Anor [2013] FCCA 2367 SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| Applicant: | SZUDL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 865 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 June 2014 |
| Date of Last Submission: | 26 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Flynn with Mr P Bodisco |
| Solicitors for the Applicant: | Stanford Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application for an extension of time made on 31 March 2014 under s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $9,750.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 865 of 2014
| SZUDL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings purports to seek judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to him.
The Application for an Extension of Time
The applicant’s substantive application, said to be made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), was filed with the Court on 31 March 2014. Section 477(1) of the Act provides that such applications must be made to this Court within 35 days of the date of the Tribunal’s decision. However, it was made 111 days after the 35 day period expired (over three and half months later). As it stands, the application is therefore not competent.
Section 477(2) of the Act provides that the Court may exercise its discretion to extend the time within which such an application may be made where it is in the interests of the administration of justice to do so, and where an application in writing to extend time has been made.
The applicant made an application for an extension of time, in writing, on 31 March 2014, as repeated the proposed amended application made on 21 May 2014:
“1. I was confused about the process and as a result did not know what were my rights regarding appealing the decision of the Refugee Review Tribunal.
2. Further, or in the alternative, I did not know what to do regarding a review of the Refugee Review Tribunal decision.”
The issue in these proceedings, therefore, is whether time should be extended pursuant to s.477(2) of the Act. The elements relevant to such consideration are not exhaustive. In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], I noted a number of elements that may be relevant in the extension of time application. In the current case attention should be directed to the extent of the delay in making the application, whether there is any reasonable or satisfactory explanation for the delay, and whether there is any merit in the grounds of the substantive application such that it is in the interests of the administration of justice to extend time.
Before the Court
Before the Court at the hearing of the application for the extension of time Mr W Flynn with Mr P Bodisco of counsel appeared for the applicant. Mr D Hughes of counsel appeared for the first respondent.
The Court had before it a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister, the affidavit of Charles Frederick Stanford, solicitor, made on 5 May 2014 annexing a transcript (“T”) of the Tribunal’s hearing with the applicant, the affidavit of Mr Stanford made on 12 June 2014 annexing a letter from a clinical psychologist (Dr Reza Pishyar), the applicant’s affidavit made on 13 May 2014, a proposed amended (substantive) application, and written submissions from both parties. There was no objection by the Minister to any of the affidavits, and none of the witnesses were required for
cross-examination.
The Application to Extend Time
As stated above, the application to this Court was filed some three and a half months after the expiry of the 35 day period referred to in s.477(1) of the Act. The extent of the delay is of such length that it is not to be seen to fall within a situation sometimes seen in matters of this type where postal misadventure, and the like, results in a delay of a few days.
It is the reasons for that delay, and whether a satisfactory, or reasonable, explanation for it has been given, to which attention must first be directed.
The applicant draws on the evidence before the Court to submit that the reason for the delay were his various emotional and psychological conditions which prevented him from “…attend[ing] to my personal affairs” ([9] of the applicant’s affidavit of 13 May 2014, and see the annexure to the affidavit of Mr Stanford of 12 June 2014).
The applicant asked the Court to accept his evidence at its highest, given the “strength” of that evidence and that it had not been subject to any cross-examination by the respondent. I agree with the applicant in this regard. There is no reason not to accept his evidence, including the report from the clinical psychologist, Dr Pishyar, as to his emotional and psychological state at about the time of the receipt of the Tribunal’s decision, and following that receipt.
The difficulty for the applicant, however, is that this evidence is of limited assistance, if any, in addressing the key question of whether he was capable of understanding the relevant advice given to him by his migration agent, and his capacity to give the agent instructions for the conduct of his migration affairs.
The applicant reports a conversation that he had with his migration agent. He says that his agent told him ([2] of the affidavit of 13 May 2014):
“There is nothing for you to do. It is out of your hands. If you have money to hire a solicitor you can go ahead but if not, then in two weeks time I will send something to the Minister.”
[The exact date of this conversation is not given. See further below.]
The applicant then gives evidence of his subsequent conduct. That is, he did not see a solicitor because he understood there was “nothing he could do”, and he did not have money to hire a solicitor.
What is not explained by the applicant is the reference to a “solicitor” in this evidence. He does not say why his agent made this reference to him. Taking the words of the agent as the applicant has reported them, what emerges is that the agent told the applicant that, in effect, he had two options. First, he could “go ahead” with seeing a solicitor. The reasonable implication arising from this is that he would go ahead and seek some legal advice, redress, or even judicial review. In the circumstances, reference to a solicitor could only have been for the purpose of receiving legal advice, which may have included the option of initiating proceedings in this Court.
In this context, the available inference, is that first, the agent told the applicant that the applicant could nothing “of useful effect” on his own, and neither could the agent, who appears not to have been a solicitor (on the evidence before the Court).
Second, that in the alternative he could seek Ministerial intervention (“I will send something to the Minister…”), pursuant to s.417 of the Act. The agent said he could assist with this option.
The applicant’s evidence is that he “did not have any money to hire a solicitor” ([3] of the affidavit of 13 May 2014). He therefore elected to pursue the second course of action. The agent did seek “Ministerial Intervention” pursuant to s.417 on the applicant’s behalf, by letter dated 4 December 2013 (CB 214 to CB 219).
It is not clear from the applicant’s evidence as to the exact date of his conversation with his migration agent. Plainly, it must have been at some time after the Tribunal’s decision (5 November 2013), and the notification of that decision to the agent in accordance with s.441G of the Act (letter dated 6 November 2013 and sent by fax, CB 198).
The agent’s letter seeking “Ministerial Intervention” is dated 4 December 2013 (CB 214). Applying the applicant’s evidence of his report of the conversation with the agent, the agent in effect gave the applicant two weeks to see if he could obtain the money to “hire a solicitor”. He said that at the end of that period he would write to the Minister if the applicant did not “go ahead” with the first course of action.
Two things can be said here. First, it reinforces the view that I have taken of the evidence that the applicant was given relevant options to choose from, including proceeding through a solicitor, to a Court to pursue matters that the agent could not. That is, at least, to seek advice about the applicant’s “legal” options.
Second, I accept the applicant’s evidence that he cannot recall when he had this conversation with his agent. However, the matters referred to immediately above allow an inference that that conversation took place on, or about, two weeks before 4 December 2013. That is, at least around 20 November 2013.
Whatever the exact date of the conversation, even at the latest it must have been on, or before, 4 December 2013 (that is, the date of the agent’s letter to the Minister, CB 214 to CB 219). There is no evidence to suggest the agent acted without instructions. The applicant’s own evidence, from which a strong inference may be drawn, that indicates the agent acted with instructions from the applicant.
The question also arises from the applicant’s submissions before the Court whether the applicant’s emotional and psychological condition was such that, even as a lay person, he can be said to have understood what was put to him by his agent such that his election not to proceed with a solicitor was not “properly” made, or was otherwise affected by his condition.
First, it must be noted that Dr Pishyar’s report (which is otherwise accepted) makes no statement, or reference, to the applicant’s capacity, or otherwise, to comprehend what he himself now says his agent told him. Noting that on his own evidence the applicant is able to recall and recite what his agent told him some five or six months prior to the making of his affidavit.
Second, that report was plainly directed to the question of whether the applicant should “…have his refuge protection visa in Australia…” (see Dr Pishyar’s letter attached as annexure “A” to the affidavit of Mr Stanford of 12 June 2014 – see [7] above).
Third, the report makes assertions accepting the applicant’s conversion to Christianity and that he would therefore be subject to, in effect, serious or significant harm if he were to return to Iran. Some care must be taken here. Dr Pishyar’s qualifications as a “clinical psychologist”, as stated in the report, are accepted. I accept the applicant’s submissions that as a clinical psychologist, Dr Pishyar’s expert opinion must also be accepted. But that acceptance can only extend to matters within the stated, or apparent, expertise of Dr Pishyar.
There is no evidence that Dr Pishyar has any expertise in assessing whether a person should be given protection in Australia, nor what would likely happen to the applicant if he were to return to Iran, or whether any such treatment or circumstance would amount to persecution or significant harm for the purposes of s.36(2) of the Act. That portion of the letter is no more than an expression of the Dr Pishyar’s personal, non-expert, view.
Even if those references were to be taken into account, the report is plainly directed to the issue of whether the applicant should be given “refugee protection” in Australia, not his capacity to understand conversations with his agent. At its highest, therefore, the applicant’s own descriptions of his symptoms, supported by the Dr Pishyar’s report, say nothing explicit about his relevant capacity in this regard.
I understood the applicant’s submissions before the Court to also be that an inference should be drawn that a person with those symptoms was not able to “attend to his personal affairs” (at [9] of the applicant’s affidavit made on 13 May 2014). The applicant provides examples in his evidence of how these symptoms affected various activities ([9] of the applicant’s affidavit of 13 May 2014). He says further that as a result of those symptoms “I also did not know what to do regarding seeking a review of the Tribunal’s decision” (at [10] of the applicant’s affidavit of 13 May 2014).
That is contradicted within his own evidence. As stated above, his own report of the conversation with his migration agent was that the agent told him to hire a solicitor if he had the money to do so. While it may be accepted that the applicant did not have the understanding, or capacity, to lodge any application to the Court himself, the advice that he should consider engaging a solicitor is clear.
Importantly, even though he provides a long list of activities that he says were affected, the applicant does not say that his memory or capacity were affected to such an extent that he did not understand what his agent told him. Even though the applicant otherwise said he suffered from memory loss and from poor concentration, he was able, under oath or affirmation (the affidavit is deficient in form in this respect) to “quote” words to particular effect.
The Court accepts the applicant’s evidence as to the contents of that conversation with his agent. Consequently, the Court also accepts that he could recall words, to the effect, that he says were used. This carries with it, whatever consequence his emotional and psychological condition otherwise had on his life and affairs, that on the relevant issue of what he did on receipt of the Tribunal’s decision, he was told of two options that he could pursue. One of those options, to hire a solicitor, was the option relevant to seeking judicial review. At that time, had he consulted a solicitor, the application for judicial review pressed before the Court now, could have been made within time in accordance with s.477(1) of the Act.
The applicant’s counsel also submitted that, with respect to his emotional and psychological “condition”, the applicant effectively lacked knowledge and sophistication to the extent that he had to “trust”, and did “trust”, his migration agent in relation to these matters. That is, he left his migration affairs to his agent in whom he had trust.
That argument, as I understood it, was put in the context of seeking to portray the applicant as someone who did not exercise, or, given his emotional and psychological condition was not able to exercise, proper attention to his affairs. In these circumstances, therefore, he left his “migration affairs” in the hands of his migration agent.
That may well be the case. But the reason that the applicant himself gives in his evidence for not seeing a solicitor, was not because of his condition, his trust of his agent, or leaving his affairs in the hands of his agent. Rather, it was because he did not have the money to hire a solicitor.
What remains therefore is that the applicant’s delay in seeking judicial review was that he elected to pursue Ministerial intervention. This is, in the circumstances, not a satisfactory explanation for the delay (see further below). What the applicant has not explained to the Court is, if he was unable to consult a solicitor in or about mid-November to early December 2013, how he was able to obtain the services of a solicitor three months later.
In all the circumstances, given the extent of the delay and the lack of satisfactory explanation for it, this argues against exercising the discretion to extend time.
For the sake of completeness, I should also note that, as stated above, the applicant elected, after receiving advice from his migration agent, to allow the agent to pursue a Ministerial Intervention on his behalf. That, of itself, in the circumstances, is not a satisfactory explanation for the delay (Vu v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed, Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364, Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J, and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16] – [24] and [36] per Black CJ, Sackville and Sundberg JJ, see also my discussion in SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [38] and [53] – [54]).
In any event, the Minister’s Department notified the applicant of the outcome of this request to the Minister by letters dated 20 January 2014 and 19 February 2014 (CB 232 to CB 233). The application to the Court was not filed until 31 March 2014. There is no evidence, or even explanation by way of submission from the applicant, as to the delay involved in this period.
The Merits of the Proposed Substantive Application
While the above is important, of greater importance in refusing to exercise the discretion under s.477(2) of the Act in the applicant’s favour is that the sole ground of review pressed by the applicant now does not contain merit such as to say that it is in the interests of the administration of justice to extend time.
Background
The following background is relevant to understanding the applicant’s claims to protection. The applicant is a citizen of Iran (CB 1 and CB 13). He arrived in Australia on 13 February 2012 as the holder of a visitor (tourist) visa (CB 14). He applied for a protection visa on 2 March 2012 (CB 1 to CB 51). He was assisted by a registered migration agent (see CB 1 and CB 9).
The applicant’s claims to fear harm were initially set out in a statutory declaration (CB 44 to CB 51). The applicant claimed to fear harm if he were to return to Iran, variously, because he was known by the Iranian authorities to have engaged in a homosexual act, his political
anti-regime views and activities, his “abandonment” of Islam, and his interest in, and conversion to, Christianity. For current purposes, only the latter claim concerns these proceedings.
The delegate did not accept any of the applicant’s claims, nor the relevant factual assertions underpinning them (CB 75 to CB 90).
The applicant applied for review to the Tribunal on 21 November 2012. He was again represented by the same migration agent (CB 91 to CB 97). He appeared before the Tribunal at a hearing on 8 October 2013. His representative was present (CB 143). The relevant parts of the Tribunal’s decision are referred to below. The Tribunal affirmed the delegate’s decision on 5 November 2013 (CB 200).
Proposed Substantive Application
On 21 May 2014 the applicant filed a proposed amended substantive application. It contained four grounds. At the hearing, the applicant advised that only ground three was pressed.
Ground three is in the following terms:
3. The Refugee Review Tribunal has failed to apply the correct test under section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a. In dealing with the Applicant’s claims under the complementary protection provisions, at paragraph [69] of the decision the Tribunal has imported the statutory test under section 91R(3) of the Migration Act into its analysis of the complementary protection claims advanced by the Applicant.
Consideration: Proposed Substantive Application
The applicant’s argument relied primarily on the following parts of the Tribunal’s decision record (at [58] at CB 209 to CB 210 and [69] at CB 211):
[58] I note that the applicant was baptised through Liberty Baptist Church. I accept that the applicant has been baptised by the church. I also note however, that Pastor Keith Piper of the Liberty Baptist church has baptised over 500 Iranians and refused only three, one of whom he subsequently baptised. He conducts no checks on their claimed religious journey and accepts their claims at face value. Because of the applicant’s lack of any pre-existing interest in Christianity, lack of research into other religions or aspects of Christianity once in Australia and lack of knowledge regarding a basic Christian celebration such as Easter I find that his pursuit of Christianity, including his baptism has been deliberate and targeted. As a consequence, I give little weight to the applicant’s baptism as proof of his genuine conversion. As I advised the claimant during the interview, s.91R(3) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
…
Complementary Protection
[69] Because I do not accept that the applicant has genuinely converted to Christianity though baptism or church attendance, has or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in Christianity or been baptised I am not satisfied that there are any substantial grounds for believing that there is real risk that the applicant will suffer significant harm.
[Emphasis added – see below.] [Error in the original.]
The applicant further argued that the following from the transcript of the Tribunal hearing provided support to his argument (T38,
lines 4-19):
“Q. [The Tribunal Member] Okay. I also need to tell you about Section 91R(3) of the Migration Act, which says that if I believe you have undertaken a … an action since arriving in Australia, for the sole purpose of improving your application, I can disregard those actions. Okay, I have concerns about your actions regarding your claimed Christianity and your Christian conversion in Australia. And while religion is not a … a quiz, the fact that you didn’t know that Jesus was crucified on Good Friday, is such a basic level of Christian understanding…”
In short, the applicant’s argument was that, in addressing the complementary protection criterion, and in its relevant conclusion, the Tribunal relied on its consideration of the applicant’s claims under the Refugees Convention. That is, it relied on, and applied to the complementary protection consideration, findings “bound up” in Refugees Convention related reasoning.
The applicant emphasised that the use of the word “[b]ecause” as it appears at the beginning of [69] (at CB 211 – see [47] above), and given that it precedes a reference to the applicant’s claimed conversion to Christianity through baptism, links that opening paragraph on the consideration of the complementary protection criterion to what the Tribunal found at [58] (at CB 209 to CB 210), where it also dealt with the claimed Christian conversion and baptism.
The applicant’s reference to what is extracted from the Tribunal hearing at T38 (see [48] above) is that this emphasised that the matter of the applicant’s baptism, which occurred in Australia at the Liberty Baptist Church, with Pastor Keith Piper officiating, was only ever considered by the Tribunal in the context of the Refugees Convention.
The applicant relied on what was said in SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (“SZSFK”), per Judge Driver at [97]:
“Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error.”
Further, the applicant submitted that this was “favourably considered” in an application for injunctive relief in the High Court in SZTVL v Minister for Immigration & Anor [2014] HCATrans 10 (“SZTVL”) per Bell J.
I should note that the applicant’s description that Judge Driver’s finding at [97] of SZSFK was “favourably considered” by the High Court in SZTVL is in my view, with respect, not openly apparent on a reading of the entire transcript of that proceeding. In my respectful view, what can be said is that it was not rejected.
In any event, for current purposes, even on the basis of accepting what was said in SZSFK (at [97]), it does not assist the applicant in the current case. The circumstances of each of the two cases are so different as to render what was said in SZSFK of no assistance to the applicant here. This can be seen with reference to some of the elements of the Tribunal’s decision in SZSFK as noted by Judge Driver, which are not present in the current case.
First, in SZSFK the Tribunal there, in the part of the decision record concerning complementary protection, referred to “…unspecified ‘findings set out above’” (SZSFK at [97]). Judge Driver found that to be “particularly problematic”. No such language or reference exists in the Tribunal’s decision in the current case.
Second, in SZSFK the language employed by the Tribunal gave rise to a concern that findings were made with reference, or in connection, to the Refugees Convention, and were subsequently applied, or “used”, without distinction in the consideration relating to complementary protection. This appears to be at the heart of the applicant’s allegation now.
It is important to note the thrust of what I relevantly, and respectfully, understand Judge Driver to have said in SZSFK, and as it relates to the relevant statutory context found at s.36(2) of the Act. That section creates two separate criteria for the grant of a protection visa (s.36(2)(a) and (aa) of the Act). An applicant must satisfy at least one of those criteria in order to be granted a protection visa (s.65 of the Act), subject to meeting all other statutory and regulatory requirements.
It is clear that each criterion posits a different species of “harm”. Section 36(2)(a) of the Act, with reference to the Refugees Convention, requires the necessary harm to be “serious”, with reference also to ss.91R(1) and (2) of the Act. Section 36(2)(aa) of the Act requires the harm to be “significant”, with reference to s.36(2A) and parts of s.5 of the Act. Both require the application of the “real risk” test, rather than a balance of probabilities (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (“SZQRB”)).
In SZSFK Judge Driver referred to the “different tests posed by s.36(2)(a) and s.36(2)(aa)” (see SZSFK at [90]). In light of SZQRB, I respectfully understand this to be a reference to the different species of “harm” between ss.36(2)(a) and (aa) of the Act. What was “particularly problematic” in SZSFK was that the relevant decision maker, in that case, made “no attempt to distinguish the different tests”. That is, the different criteria at s.36(2)(a) and (aa), “serious or significant” harm (SZSFK at [90]).
The question in the current proceedings posed by the applicant’s ground is whether the Tribunal distinguished the different “tests” in its consideration of each of the two criteria for the protection visa.
A number of points need to be made. The Tribunal’s decision record is to be read fairly. That means contextually and holistically (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). It is necessary to be reminded of this given the applicant’s emphasis in his submissions before the Court on the one word, “[b]ecause” (as it appears at [69] of the Tribunal’s decision record at CB 211, see also [47] above).
As set out above, the criteria at s.36(2) of the Act contain different “tests” as to the relevant species of “harm”. They cannot be confused in application to the applicant’s circumstances. Further, given the relationship between the two, the Tribunal is only required to consider the criterion at s.36(2)(aa) of the Act if it finds that the applicant’s circumstances do not satisfy s.36(2)(a) of the Act (SZQRB at [71] per Lander and Gordon JJ with whom Besanko, Flick and Jagot JJ agreed).
In these circumstances, the Tribunal’s attention is first directed to the Refugees Convention, rather than the definition of complementary protection. This probably explains why in many cases involving protection visa applications, Tribunal decision records set out findings of fact, and draw immediate conclusions in light of the Refugees Convention. There is usually no difficulty for the Tribunal in this approach, provided the findings of fact are not dependent on Refugees Convention concepts for their creation and conclusion. That is, that the reverse occurs, the consideration of the Refugees Convention elements are dependent on and derive from the findings of fact.
This can be illustrated with what was found in SZSFK (at [97]). There, the decision maker made findings of fact with reference to language taken from s.91R(1) of the Act which was relevant to the Refugees Convention, and not complementary protection. That is, the findings were, apparently, not just derived from the factual circumstances presented, but had as part of their constituent elements a Refugees Convention concept. The application of those findings to the complementary protection criterion therefore, in circumstances where Judge Driver found the findings to be “clearly irrelevant to the complementary protection criterion”, was the basis for the legal error found by his Honour (SZSFK at [97]).
In SZTET v Minister for Immigration & Anor [2013] FCCA 2367 (see [38]), I observed that a preferred model of the presentation of Tribunal decision records involving protection visa applications was for the Tribunal to approach its task in three stages, rather than two. That is, to make its findings of fact first, then consider whether in light of those findings, the applicant satisfies s.36(2)(a) of the Act. If not, then to separately consider whether the applicant satisfies s.36(2)(aa) of the Act.
In the current case the parties made no reference to SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”). However, I note that Robertson J’s consideration in that case provides the greater part of the answer to the applicant’s complaint.
In SZSGA the applicant’s contention with the Tribunal decision was understood by the Court to include the following (at [26]):
“The appellant submitted that to deal with his claims to complementary protection in a self-contained manner, embedded as it was in Refugee Convention-related thinking, was particularly problematic. The reliance by the Tribunal on unspecified ‘findings of fact above’ was criticised as having the practical effect of importing the requirement of persecutory acts under s 91R to the test under complementary protection.”
As in the current case, the applicant in SZSGA relied on SZSFK (see SZSGA at [32]). While the applicant’s case did not succeed because of another reason, (see at [52] - [53]), what Robertson J then said, and found, in relation to a ground similar to the one currently pressed, provides guidance and direction in the current case (SZSGA
at [55] - [56]):“[55] I reject the appellant’s submission that the Tribunal’s ‘dealings’ with the complementary protection claim was ‘bound up’ in Refugee Convention-related thinking. In the paragraphs I have set out, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact.
[56] There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of nature claimed by the appellant and no factual basis for the appellant’s other claims.”
As stated above, in SZSFK a part of the reason for the Court’s finding that some of the decision maker’s reasoning was “problematic” was the reference in that decision record to s.91R(1)(c) of the Act, which was part of a finding, which on the face of the decision record was also subsequently part of the consideration of complementary protection. The Tribunal also employed the same approach with its the finding of a lack of Refugees Convention nexus with harm suffered by the applicant.
In the current case the applicant, in effect, submits that the Tribunal’s reference to s.91R(3) of the Act, and Christian conversion and baptism, leads to, and reveals, a similar legal error.
I do not agree with the applicant’s submission. As referred to above, the applicant claimed to fear harm for essentially three reasons. These were his claimed conversion to Christianity, anti-regime political activity, and his claim to have engaged in homosexual conduct.
As stated above, only the claimed conversion to Christianity need concern us here given the applicant’s ground. The applicant claimed that he had an interest in Christianity while he had been in Iran (including attendance at Christian churches), and that when he came to Australia he routinely attended Church and was baptised into the Christian religion by Pastor Keith Piper at the Liberty Baptist Church.
The Tribunal did not accept that the applicant had genuinely converted to Christianity, nor that he had a pre-existing interest in Christianity in Iran ([51] at CB 208). The Tribunal gave reasons for this probative of the evidence before it ([51] at CB 208 to [54] at CB 209) (see Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405). None of the other findings in support, or explanation, of this finding were impugned, or the subject of complaint by the applicant now.
Further, the Tribunal also found that the applicant had never attended any Christian church in Iran. It therefore did not accept that he had come to the attention of the Iranian authorities for that reason ([54] at CB 209).
The Tribunal then turned to consider whether the applicant’s evidence about his claimed “religious journey” was “indicative of someone who had genuinely arrived at a decision to embrace Christianity” ([55] at CB 209). It did not accept that his conduct in Australia revealed a genuine decision to embrace Christianity. Here again it gave reasons for this probative of the evidence before it, namely his lack of knowledge of a basic tenet of Christianity which was inconsistent with the length and degree of his claimed Christian related activities
([55] – [57] at CB 209).
I note that at one part of the Tribunal’s analysis, at the last sentence at [56] (at CB 209), the Tribunal said as follows:
“…this lack of knowledge about a basic tenet of the faith further strengthens the Tribunal’s finding that the applicant’s relationship with Christianity is purely for the purpose of improving his refugee claim”.
[I note that this “echoes” s.91R(3) of the Act.]
Given the applicant’s ground it is important to note that while this finding appears in the middle of the Tribunal’s analysis concerning the claim as to Christian conversion, it is a finding that derives from the other findings of fact which surround it, rather than informing those other factual findings.
That is, the Tribunal found that the applicant’s relationship with Christianity was done “purely for the purpose of improving his refugee claim” ([56] at CB 209). This was a conclusion emanating from the various other findings about the applicant’s claimed interest in Christianity. There was nothing in those other findings of fact to suggest they were derived, or formulated, even in part, from any Refugees Convention concept.
Before the Court, the applicant drew attention to [58] (at CB 209 to CB 210) of the Tribunal’s decision record (see [47] above). Here, again, this paragraph must be fairly read both in itself, and in context of what precedes it (Wu Shan Liang).
This paragraph follows the same approach as [56] of the Tribunal’s decision record (at CB 209, see at [75] – [79] above). Other than for the last sentence, the greater part of [58] contains findings of fact concerning the applicant’s claimed Christian related activities in Australia.
The Tribunal accepted that he had been baptised in Australia, but found that “…his pursuit of Christianity, including his baptism has been deliberate and targeted” ([58] at CB 209). Again the Tribunal gave reasons for this probative of the evidence before it, including the way in which Pastor Piper generally approaches such baptisms.
None of this analysis, nor the “concluding” finding, or the antecedent findings including those in preceding paragraphs (other than the conclusion at [56] at CB 209, see above), has any reliance on any Refugees Convention concept for its formulation or expression.
The last sentence of [58] (at CB 210), as with [56] (at CB 209), is relevant to s.91R(3) of the Act, but again, it flows from the antecedent findings. That is, it does not inform them.
The current circumstances are therefore different to what was found to have occurred in SZSFK. The Tribunal here recognised, in this sentence, that s.91R(3) of the Act was relevant to the concept of “persecution” and the applicant’s “refugee claim”. There is nothing here to suggest that it also applied this to the complementary protection criterion.
The applicant argued before the Court that what precedes this last sentence at [58] (at CB 209) should be read as having been considered, in effect, in light of this sentence. He relies on that part of the transcript set out at [48] above for this purpose. That is, that what is set out at T38 deals with the applicant’s conduct in Australia, and the Tribunal itself refers, as shown at the beginning of the extract, in what immediately follows, to being concerned with s.91R(3) of the Act. Therefore, the argument is that all of what is set out at [58] (at CB 209 to CB 210) is “about” s.91R(3) of the Act. That is, the Refugees Convention.
It must be said that the applicant’s argument rests on a selective reading of both the transcript of the Tribunal hearing and its decision record. As set out variously above, decision records must be read fairly and holistically (Wu Shan Liang). I would add that parts of the transcripts of hearings cannot be read selectively (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [75] per Robertson J).
What appears at T38 plainly is with reference to s.91R of the Act. But that, in the absence of anything else, cannot be said to require findings subsequently made in the decision record to be seen as being “influenced” or “bound up” with the Refugees Convention, or even “bound up” or “deriving” from only that part of the transcript.
It is the case that the Tribunal also explored the applicant’s conduct in Australia elsewhere in the hearing. See for example at T17, line 40:
“Q. [Tribunal Member] Okay. Rightio. So, what’s happened since you’ve been in Australia? In terms of Christianity.”
This topic generally is pursued through to T21, line 45. This included various references to baptism in Australia, Pastor Piper and the applicant’s claimed activities at the Liberty Baptist Church.
The Tribunal’s account of the hearing generally follows what is presented in the transcript of the hearing. At [21] ‑ [25] (at CB 203 to CB 204) of its decision record, the Tribunal reports on what occurred at T17 and following. At [42] ‑ [43] (at CB 207), it reported what occurred at T38.
It is clear, on any plain reading of the Tribunal’s decision, that the Tribunal member, relevantly, employed an appropriate and orthodox approach at the hearing. In relation to Christianity, what is at T17 and following is, as the Tribunal otherwise said, the provision to the applicant of “…an opportunity for you to tell me everything about your claims to protection in Australia” (T4, lines 2 - 3).
The part of the transcript relied on by the applicant now (T38) is set in a part of the hearing where the Tribunal sought to discharge its procedural fairness obligations. At T34, line 24 the Tribunal said:
“…first of all I’ve got to tell you about some sections of the Migration Act. The first is Section 424AA…”
In essence, the Tribunal put to the applicant for comment not only “information” for the purposes of s.424A of the Act (hence the reference to s.424AA of the Act), but matters generally adverse to him. What appears at T38 is a part of this process.
In all, therefore, when the Tribunal’s decision record is read holistically, in context, and with reference to the hearing, what emerges is that the Tribunal made a large number of findings of fact concerning the applicant’s claimed conversion to Christianity and related activities. What is impugned at [58] of the decision record (CB 209 to CB 210), must be fairly read as a conclusion from what precedes it in that paragraph, and in the antecedent paragraphs.
As stated above, the applicant placed great emphasis on the word “[b]ecause” ([69] at CB 211) in an attempt to link, in effect, the last sentence of [58] (at CB 210) to the analysis under complementary protection.
The word “[b]ecause” does link [69] (at CB 211) to the various findings of fact set out earlier in relation to the applicant’s interest in, conversion to, and baptism in, Christianity. However, when read fairly, I do not agree with the applicant that it seeks to import into the complementary protection analysis any Refugees Convention concept. As was said in SZSGA at [56] per Robertson J, “[t]here is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact”. No jurisdictional error is revealed in circumstances where those findings of fact were made absent any Refugees Convention concepts.
This is supported by the fact that both the transcript of the hearing and the decision record reveal that the Tribunal otherwise understood the two different criteria in s.36(2) of the Act and the different species of harm that applied to each (see [2] – [3] of Attachment A of the Tribunal’s decision record at CB 213, and T3).
The applicant’s submission that the absence of any reference to s.91R(3) of the Act (in that attachment at CB 213) reveals that the Tribunal lacked relevant understanding, on its own, cannot assist the applicant. In any event, the Tribunal otherwise explained s.91R(3) of the Act to the applicant at the hearing (T38), and this was reflected in its decision record ([42] - [43] at CB 207).
The Tribunal’s explanation to the applicant at the hearing makes plain that it understood the difference between the Refugees Convention criterion and the complementary protection criterion (T3,
lines 34 - 41):
A. INTERPRETER: This Complementary Protection provisions that you are going to explain, what is it?
MEMBER: If you’ll let me explain it. In order to do this, I must be satisfied that there are substantial grounds, for believing that there is a real risk, you will suffer significant harm, if you are returned to another country. The harm in this case, does not require that it done to you for one of the five Convention reasons. Do you have any questions about the Convention definition of a refugee, or about Complementary Protection?”
[Error in the original.]This is also reflected in the Tribunal’s decision record at [68] (at CB 211).
Finally, a fair reading of [69] (at CB 211) itself shows the clear difference in focus and findings between that paragraph and [58] (at CB 209 to CB 210), with each conclusion focused separately on the Refugees Convention and complementary protection criteria in s.36(2) of the Act.
At [69] (at CB 211) of its decision record the Tribunal accepted that the applicant had been baptised in Australia, but it was not satisfied that the applicant would suffer significant harm given that it did not accept that his conversion to Christianity was genuine (see [72] above). Further, it found that no one in Iran was aware of the fact of the baptism in Australia, or attendant activity, such as would lead to a real risk of significant harm.
None of this was based on any antecedent findings made with reference to the Refugees Convention. In all, the substantive ground of the application, as amended and pressed, lacks merit such as to argue for any extension of time as being in the interests of the administration of justice.
Conclusion
In all the circumstances I cannot see that it is in the interests of the administration of justice to extend time. I will make an order refusing the extension of time.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 September 2014
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