SZUFW v Minister for Immigration
[2016] FCCA 1836
•20 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUFW v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1836 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether breach of natural justice – whether reasonable apprehension of bias – whether Tribunal failed to ask the correct question or acted as an arbiter of religion – no jurisdictional error – application dismissed. |
| Legislation: Constitution, s.116 Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 425, 476 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (2003) 197 ALR 389 Browne v Dunn (1983) 6 R. 67 Meadows& Anor v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 654 |
| Applicant: | SZUFW |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1085 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 July 2015 |
| Date of Last Submission: | 14 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Respondent: | Ms N Blake of Clayton Utz |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application for leave made on 14 July 2015 to further amend the application and to press ground three (“the constitutional ground”) of the proposed amended application of 1 July 2015 is refused.
The application made on 22 April 2014 and amended on 1 July 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $ 6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1085 of 2014
| SZUFW |
Applicant
And
| MINISTER FOR IMMIGRATION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 22 April 2014 said to be pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 17 March 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
The Evolution of the Applicant’s Case
The evolution of the applicant’s case before the Court requires explanation. The application made on 22 April 2014 was prepared by counsel on behalf of the applicant. While I note the reference in that document to “First Applicant” and the reference to “Filed on behalf of the Applicants”, there was only one applicant before the Tribunal, and only one applicant before the Court.
That application pleaded six grounds with particulars:
“Ground 1: Relevant Considerations
1. The Second Respondent failed to take into account a relevant consideration in the exercise of power.
Particulars
(a) The failure to take into account relevantly, the expulsion from University.
(b) The failure to take into account relevantly the applicant’s mother was stopped at Imam Khomeini Airport on return to Iran, her bags searched and photos of her socialising inside the North Ryde Baptist church found in both hard copy and on her digital camera.
(c) The failure to take into account relevantly, that the photos were transported to Iran and discovered by the Iranian authorities.
(d) The failure to take into account relevantly that the hard copy and digital photos would implicate her in, or at least leave her exposed to accusations of proselytising activities in Australia.
(e) The failure to take into account relevantly, the Applicant’s interest in Christianity since 2007 when she met her Christian maternal uncle and determined that Christian values equated with those she held personally.
(f) The failure to take into account relevantly the visit to an Italian church because she was thinking about her religion in her late teenage years.
(g) The failure to take into account relevantly, that the delay between arriving and attending church can be explained by the need to study and settle in.
(h) The failure to take into account relevantly there are varying degrees of knowledge with regard to faith and that the Applicant was at the very first stages of her conversion to Christianity.
(i) The failure to take into account relevantly, that the Applicant had attended six sessions with the pastor before she was baptized.
(j) The failure to take into account relevantly that the Applicant had attended church regularly for eighth months.
(k) The failure to take into account relevantly, that the Applicant had attended church regularly up and until she feared that she would be recognised and reported to the Iranian authorities.
(l) The failure to take into account relevantly that the Applicant had attended a short period of religious study in preparation for baptism and that she has become baptised.
(m) The failure to take into account relevantly the reference by Reverend Dean.
(n) The failure to take into account relevantly that the Applicant has read the bible outside of that required by Pastor Dean.
(o) The failure to take into account relevantly the evidence by the Applicant’s auntie’s evidence in support of the Applicant’s conversion.
(p) The failure to take into account relevantly the Applicant’s private prayer.
(q) The failure to take into account relevantly the impact on the Applicant if she was to return to Iran and the implications this has for the practice of her Christian faith.
(r) The failure to take into account relevantly that the religious conversion of the Applicant will cause her to come to the attention of the Iranian authorities and may result in persecution.
(s) The failure to take into account relevantly alternative country information indicating that the Iranian authorities may persecute in the private religious lives of their citizens.
(t) The failure to take into account relevantly the anti regime political views of the Applicant.
(u) The failure to take into account relevantly that the Applicant was expelled from university for not attending compulsory religious classes.
(v) The failure to take into account relevantly the anti regime activities of the Applicant’s father.
Ground 2: Irrelevant Considerations
2. The Second Respondent took into account an irrelevant consideration in the exercise of power.
Particulars
(a) The taking into account irrelevantly the failure of the Applicant to provide a letter from the University in Iran by the Herasat for failing to adhere to Islamic rituals at university.
(b) The taking into account irrelevantly the member’s own presumption that that the mother would not willingly take incriminating hard copy and digital photos with her that would implicate her in, or at least leave her exposed to accusations of proselytising activities in Australia, when determining the credibility of the claim.
(c) The taking into account irrelevantly, the Applicant’s alleged ‘lack of interest’ in Christianity since 2007.
(d) The taking into account irrelevantly, the Applicant’s visit to a church in Italy.
(e) The taking into account irrelevantly, the alleged lack of research by the Applicant into Christianity.
(f) The taking into account irrelevantly, the alleged lack of knowledge by the Applicant into Christianity.
(g) The taking into account irrelevantly, the alleged lack of attendance by the Applicant into Christianity.
(h) The taking into account irrelevantly, that Reverend Dean had unduly accepted the Applicant’s claim of prior interest in Christianity.
Ground 3: No Evidence
3. There was no evidence or other material to justify the making of the decision by the Second Respondent.
Particulars
(a) There was no evidence that the Applicant’s evidence was unreliable, incredible or untruthful or that she fabricated her claim in order to be granted a protection visa.
(b) There was no evidence that the Applicant was not expelled from university in Iran by the Herasat for failing to adhere to Islamic rituals at university.
(c) There was no evidence that the Applicant’s mother was not stopped at Imam Khomeini Airport on return to Iran, her bags searched and photos of her socialising inside the North Ryde Baptist church found in both hard copy and on her digital camera.
(d) There was no evidence that the Applicant did not have an interest in Christianity since 2007 when she met her Christian maternal uncle and determined that Christian values equated with those she held personally.
(e) There was no evidence that the Applicant had not researched Christianity.
(f) There was no evidence that the Applicant failed to attain a level of knowledge of Christianity.
(g) There was no evidence that the Applicant did not attend church or that a decision to stop attending church meant that she was no longer a practising Christian.
(h) There was no evidence to conclude that the reference by Reverend Dean regarding the Applicants religious study and baptism was made on the basis of misinformation.
(i) There was no evidence before the First Respondent that the applicant’s baptism and her limited church attendance was deliberate and targeted.
(j) There was no evidence regarding the Applicant’s church attendance, attendance at religious education and baptism were done deliberately and with the sole purpose of improving her refugee claim.
(k) There was no evidence that the Applicant has not done any reading of the bible outside of that required by Pastor Dean.
(l) There was no evidence that the Applicant’s Auntie had lied or embellished the religious conversion of the Applicant.
(m) There was no evidence that the Applicant does not continue to pray outside of church and in private.
(n) There was no evidence that the Applicant would not make any effort to practice Christianity if she were to return to Iran.
(o) There was no evidence that the religious conversion of the Applicant, or alternatively, that the Applicant is an ‘unobservant Muslim’ in the language of the member, that Applicant will not come to the attention of the Iranian authorities.
(p) There was no evidence that the Applicant did not hold political views against the Islamic regime because she was denied her freedoms.
(q) There was no evidence that the Applicant was not expelled from university for not attending compulsory religious classes.
(r) There was no evidence that the Applicant’s father was not involved in anti-regime activities.
Ground 4: Without regard to the merits
5. The Second Respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
Particulars
(a) The Second Respondent exercised the discretionary power under Section 91R(3) regarding the credibility of the Applicants without regard to the merits of their Application.
(b) For the reasons particularised in grounds 1 to 3.
Ground 5: Bad Faith
5. The Second Respondent exercised a discretionary power in bad faith.
a) Particulars
(a) The Second Respondent exercised the discretionary power under Section 91R(3) regarding the credibility of the Applicants in bad faith.
(b) For the reasons particularised in grounds 1 to 4.
Ground 6: Unreasonableness
6. The Second respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power.
Particulars
(a) No reasonable repository of power acting with due appreciation of their responsibilities would have so decided.
(b) The Second Respondent failed to give adequate weight to relevant factors of great importance.
(c) The Second Respondent gave excessive weight to irrelevant factors of no importance.
(d) There was no evidence to base the decision.
(e) The Second Respondent reasoned illogically or irrationally.
(f) The decision to refuse the visa is a disproportionate response by reference to the scope of the power.
(g) The decision to affirm the decision by the delegate lacks evident and intelligible justification.
(h) For the reasons particularised in grounds 1 to 5.”
[Errors in original]
Orders were made by the Court on 27 May 2014 which, amongst other things, set the matter down for final hearing on 14 July 2015. The applicant was given the opportunity to file any evidence by way of affidavit and any amended application by 2 July 2014.
On 1 July 2015 the applicant sent to the Court’s Registry, a document headed “Amended Application”. It was prepared by counsel. There are 83 paragraphs under the heading of “Grounds of Application”.
Paragraphs [1] – [37] are clearly in the nature of submissions. In essence, a summary of the applicant’s claims to protection and what are said to be the Tribunal’s analysis and findings.
The remainder of the document sets out what are said to be seven “Grounds”, some with what are said to be “Particulars”, and alternate grounds with particulars, and others with what can only be understood as written submissions. The grounds are ([39] – [83] of that document):
“Ground 1: Breach of Natural Justice and Procedural Fairness – The Fair Hearing Rule
[39] With regard to Ground 1, the Applicant contends that the Second Respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.
[40] Alternatively, the Second Respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicants’ claims, or an integer of their claims.
[41] Further, the Second Respondent failed to accord the applicants natural justice and procedural fairness as the second respondent based its decision upon a series of adverse credibility findings, which rejected out of hand, the applicant’s claims on the basis of credibility, without giving the applicants prior warning or an adequate opportunity to give evidence and present arguments.
Particulars
(a) Adverse Credibility Findings
[42] The second respondent based its decision upon a series of adverse credibility findings, 24 in total, particularised from [10](a) – [37](y), which rejected out of hand, the Applicant’s claims on the basis of credibility, without giving the Applicant prior warning or an adequate opportunity to give evidence and present arguments before, during or after the hearing, in violation of the fair hearing rule.
Ground 2: Breach of Natural Justice and Procedural Fairness – Reasonable Apprehension of Bias
[43] With regard to Ground 2, the Applicant contends that the decision by the Second Respondent to deny the Applicant a Protection visa is vitiated by a reasonable apprehension of bias.
Particulars
a) The second respondent based its decision upon a series of adverse credibility findings, 24 in total, particularised from [10](a) – [37](y), which rejected out of hand, the Applicant’s claim on the basis of credibility, whereby a fair-minded lay observer might reasonably apprehend that the Second Respondent did not bring an impartial and unprejudiced mind to the matter in violation of the bias rule.
Ground 3: Contrary to Law – Section 116 of the Constitution
[44] With regard to Ground 3, the Applicant contends that the Second Respondent made a series of adverse findings regarding the Applicant’s religious belief, which were otherwise contrary to section 116 of the Constitution.
Particulars
[45] Section 116 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution) provides that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’
[46] Section 116 of the Constitution applies to all laws and the exercise of power by the executive government of the Commonwealth of Australia, under those laws.
[47] Alternatively, the right to the free exercise of thought, conscience and religion is expressed in the opinio juris of international law, including the international bill of rights inter alia and is widely accepted as a principal of customary international law, which has been adopted and incorporated by the common law of Australia.
[48] At [51], the Second Respondent did ‘not accept that the applicant has had an interest in Christianity since 2007 when she met her Christian maternal uncle and determined that Christian values equated with those she held personally.’
[49] At [51], the Second Respondent observed that ‘[d]espite claiming to have held this interest in Christianity, she travelled to the UK on five occasions, as well as Germany, Italy and France before she came to Australia. She did no research on Christianity in any of these countries even though she would have been free to do so.’
[50] At [52], the Second Respondent ‘also d[id] not accept that she failed to do any research because she wasn’t thinking about her religion in her late teenage years and [h]ad only felt it since she came to Australia, given the inconsistency with her claim that she gained her interest in Christianity in 2007, before she embarked on these trips.’
[51] At [53], the Second Respondent did not accept that ‘visiting a church in Italy … was anything other than an act that many non-Christian tourists do, particularly one interested in architecture and design as the applicant is.’
[52] At [53], the Second Respondent ‘not satisfied that the 18 months delay between arriving and attending church can be explained by the need to study and settle in, nor the more than six months between talking with her friend and attending was because she had to wait to get permission from her parents before doing it.’
[53] At [54], the Second Respondent observed that ‘[a]fter having decided to go to church her commitment to practise and knowledge of her new faith is limited.’
[54] At [54], the Second Respondent observed that the Applicant ‘attended six sessions with the Pastor before she was baptised, and while she knew that Jesus was born on Christmas Day and crucified during Easter, she neither knew the day on which he was crucified nor the events leading up to his crucifixion.’
[55] At [54], the Second Respondent observed that the Applicant ‘claimed that she had read the Bible but had a bad memory for it. Asked what research she had done on Christianity, she stated that it was the largest religion in the world and it shared the same values as those that she held without elaborating further.’
[56] At [54], the Second Respondent observed that ‘[w]hile one’s commitment to a religion cannot be judged solely by the level of technical knowledge regarding it, given that the applicant has been in Australia for three Easter periods, it is reasonable to assume that she would have gathered a better knowledge of its significance than she was able to display.’
[57] At [55], the Second Respondent observed that ‘in her three years in Australia she has attended church at best case for eight months. This is also not indicative of someone with a commitment to their new religion.’
[58] At [58], the Second Respondent ‘accept[ed] that the applicant has attended a short period of religious study in preparation for baptism and that she has become baptized’ and noted the ‘strong reference that Reverend Dean provided and believe that he has provided it in good faith.’ However, the second respondent was ‘unable to lend any weight to Reverend Dean’s evidence regarding the genuineness of the applicant’s conversion.’
[59] At [59] – [60], the Second Respondent ‘also found the Applicant’s ‘baptism and her limited church attendance has been deliberate and targeted’ and that ‘the actions regarding her church attendance, attendance at religious education and baptism have been done deliberately and with the sole purpose of improving her refugee claim.’
[60] At [60], the Second Respondent ‘did not accept that she has done any reading of the bible outside of that required by Pastor Dean, a finding reinforced by her absence of knowledge regarding events leading up to Jesus’ crucifixion; these events are well covered in the bible and if she believed that reading the bible was comforting as she Claimed then it is reasonable to expect that she would have some reasonable understanding of such events.’
[61] At [61], the Second respondent ‘g[a]ve little weight to the applicant’s auntie’s evidence in support of the Applicant’s conversion.
[62] At [62], the Second Respondent ‘also d[id] not accept that she continues to pray as Reverend Dean claimed she told him. The Tribunal has highlighted the issues regarding the applicant’s lack of credibility and finds that this claim has been fabricated.’
[63] At [62], the Second Respondent found that ‘given her conversion is not real, but has been deliberate and targeted I am not satisfied that she would make any effort to practice Christianity if she were to return to Iran.’
[64] At [68], the Second Respondent’ did not accept that the applicant has any interest in Christianity or has genuinely converted to Christianity, 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 she has any interest in Christianity through attending church or religious education or o[t]her baptism, or that she has or will come to the attention of the authorities for Islamic non-observance or anti-regime political views I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.’
[65] The Applicant contends that the Second Respondent exercised power under the Migration Act 1958 (Cth), in a manner which impermissibly imposed religious observance on the applicant, or prohibited the applicant’s free exercise of religion, in violation of the applicant’s right to freedom of religion, contrary to section 116 of the Constitution or alternatively, customary international law.
[66] First, by making the finding that the Applicant was not a ‘genuine’ Christian, the Second Respondent has violated the Applicant’s right to freedom of religion at a temporal and physical level. Second, the respondent has denied the Applicant her right to physically practice Christianity in Australia, as the Applicant will be imminently refouled to Iran; and the Applicant is unable to practice Christianity in Iran, where it is illegal and apostasy carries the death sentence. The cumulative consequences of the Second Respondent’s finding is to deny and interfere with the Applicant right to practice Christianity at a temporal and physical level in both Australia and Iran.
[67] Second, the Second Respondent erred by applying an erroneous or subjective definition or test on the Applicant as to what is a ‘genuine’ Christian and what is not a ‘genuine’ Christian.
[68] Third, the Second Respondent impermissibly imposed religious observance on the first applicant by imposing a test or definition as to what is a ‘genuine’ Christian.
[69] Fourth, the Second Respondent impermissibly prohibited the Applicant’s free exercise of religion by finding that she was not a ‘genuine’ Christian.
[70] Fifth, the Second Respondent acted without power – the member has not been ordained and does not have any formal religious authority, training, knowledge, expertise or experience to apply a test or definition of religion on the Applicant and did not have any power to determine who is, or who is not a ‘genuine’. The second respondent erred by taking on the role of the arbiter, pontificator or inquisitor of the doctrines of Christianity and transformed a secular hearing into an ecclesiastic forum, when the member has no authority or power to do so.
[71] Sixth, the right to free exercise of thought, conscience, religion or belief is an absolute right which cannot be violated by the State or its officers. Alternatively, if the right to the free exercise of thought, conscience, religion or belief is relative, then the exercise of power by the Second Respondent was not reasonably necessary nor proportionate to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
Ground 4: Error of Law – Misapplication of law or failure to ask the correct question
[72] The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.
Particulars
(a) The Applicant’s Conversion to Christianity
[73] First, for the reasons particularised from [47] – [71].
[74] Second, it was impermissible for the second respondent to test or define the level of the applicant’s belief, knowledge or understanding of the religion. Alternatively, it was impermissible for the second respondent to evaluate the applicant’s beliefs against the doctrines of the religion.
[75] Third, there was not a sufficiently disclosed rational basis for concluding that the elements of which the Applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know.
[76] Fourth, there was a sufficient lack of rational or logical connection between the assessment by the Second Respondent of the Applicant’s credit and the material upon which it relied on to make that assessment.
(b) Section 91R(3)
[77] The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to section 91R(3) of the Migration Act 1958 (Cth).
[78] At [59] – [60], the Second Respondent found that the ‘applicant’s baptism and her limited church attendance has been deliberate and targeted’ and that ‘the actions regarding her church attendance, attendance at religious education and baptism have been done deliberately and with the sole purpose of improving her refugee claim.’
[79] From [12] – [15], there was evidence before the Second Respondent that the Applicant’s interest in Christianity began when she was 11 or 12 years of age and continued into University.
[80] Clearly, there are many complex and varied reasons as to why the Applicant decided to convert to Christianity, including personal, spiritual, familial, political and social reasons. As such, the second respondent erred by finding that the Applicant’s conversion to Christianity was for the ‘sole’ reason to enhance her protection claims under the refugee criterion.
Ground 5: No Evidence
[81] For the reasons particularised from [10](a) – [37](y), there was no evidence or other material to justify the making of the decision or the second respondent relied on facts, which did not exist, when the member made a series of adverse credibility findings, 24 in total, which rejected out of hand, the Applicant’s claims on the basis of credibility.
Ground 6: Relevant/Irrelevant Considerations
[82] For the reasons particularised from [10](a) – [37](y), the Second Respondent failed to take into account a relevant considerations or took into irrelevant considerations, when exercising power.
Ground 7: Unreasonableness
[83] For the reasons particularised from [10](a) – [37](y), the Second Respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power. Alternatively, the second respondent reasoned illogically or irrationally and the findings lack evident or intelligible justification.”
[Errors in original]
On 3 July 2015, the applicant’s counsel sent by email to Chambers a document, amongst a number of other documents, purporting to be a further amended application, dated 14 July 2015 (the date of the scheduled final hearing). That “application” proposes the following grounds:
“Ground 1: Breach of Natural Justice and Procedural Fairness – The Fair Hearing Rule
[39] With regard to Ground 1, the Applicant contends that the Second Respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.
[40] Alternatively, the Second Respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicants’ claims, or an integer of their claims.
[41] Further, the Second Respondent failed to accord the applicants natural justice and procedural fairness as the second respondent based its decision upon a series of adverse credibility findings, which rejected out of hand, the applicant’s claims on the basis of credibility, without giving the applicants prior warning or an adequate opportunity to give evidence and present arguments.
Particulars
(a) Adverse Credibility Findings
[42] The second respondent based its decision upon a series of adverse credibility findings, 24 in total, particularised from [10](a) – [37](y), which rejected out of hand, the Applicant’s claims on the basis of credibility, without giving the Applicant prior warning or an adequate opportunity to give evidence and present arguments before, during or after the hearing, in violation of the fair hearing rule.
Ground 2: Breach of Natural Justice and Procedural Fairness – Reasonable Apprehension of Bias
[43] With regard to Ground 2, the Applicant contends that the decision by the Second Respondent to deny the Applicant a Protection visa is vitiated by a reasonable apprehension of bias.
Particulars
(a) The second respondent based its decision upon a series of adverse credibility findings, 24 in total, particularised from [10](a) – [37](y), which rejected out of hand, the Applicant’s claims on the basis of credibility, whereby a fair-minded lay observer might reasonably apprehend that the Second Respondent did not bring an impartial and unprejudiced mind to the matter in violation of the bias rule.
Ground 3: Error of Law – Misapplication of law or failure to ask the correct question
[44] With regard to Ground 3, the Second Respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.
Particulars
(a) The Applicant’s Conversion to Christianity
[45] At [51], the Second Respondent did ‘not accept that the applicant has had an interest in Christianity since 2007 when she met her Christian maternal uncle and determined that Christian values equated with those she held personally.’
[46] At [51], the Second Respondent observed that ‘[d]espite claiming to have held this interest in Christianity, she travelled to the UK on five occasions, as well as Germany, Italy and France before she came to Australia. She did no research on Christianity in any of these countries even though she would have been free to do so.’
[47] At [52], the Second Respondent ‘also d[id] not accept that she failed to do any research because she wasn’t thinking about her religion in her late teenage years and bad only felt it since she came to Australia, given the inconsistency with her claim that she gained her interest in Christianity in 2007, before she embarked on these trips.’
[48] At [53], the Second Respondent did not accept that ‘visiting a church in Italy … was anything other than an act that many non-Christian tourists do, particularly one interested in architecture and design as the applicant is.’
[49] At [53], the Second Respondent ‘not satisfied that the 18 months delay between arriving and attending church can be explained by the need to study and settle in, nor the more than six months between talking with her friend and attending was because she had to wait to get permission from her parents before doing it.’
[50] At [54], the Second Respondent observed that ‘[a]fter having decided to go to church her commitment to practise and knowledge of her new faith is limited.’
[51] At [54], the Second Respondent observed that the Applicant ‘attended six sessions with the Pastor before she was baptised, and while she knew that Jesus was born on Christmas Day and crucified during Easter, she neither knew the day on which he was crucified nor the events leading up to his crucifixion.’
[52] At [54], the Second Respondent observed that the Applicant ‘claimed that she had read the bible but had a bad memory for it. Asked what research she had done on Christianity, she stated that it was the largest religion in the world and it shared the same values as those that she held without elaborating further.’
[53] At [54], the Second Respondent observed that ‘[w]hile one’s commitment to a religion cannot be judged solely by the level of technical knowledge regarding it, given that the applicant has been in Australia for three Easter periods, it is reasonable to assume that she would have gathered a better knowledge of its significance than she was able to display.’
[54] At [55], the Second Respondent observed that ‘in her three years in Australia she has attended church at best case for eight months. This is also not indicative of someone with a commitment to their new religion.’
[55] At [58], the Second Respondent ‘accept[ed] that the applicant has attended a short period of religious study in preparation for baptism and that she has become baptized’ and noted the ‘strong reference that Reverend Dean provided and believe that he has provided in good faith.’ However, the second respondent was ‘unable to lend any weight to Reverend Dean’s evidence regarding the genuineness of the applicant’s conversion.’
[56] At [59] – [60], the Second Respondent ‘also found the Applicant’s ‘baptism and her limited church attendance has been deliberate and targeted’ and that ‘the actions regarding her church attendance, attendance at religious education and baptism have been done deliberately and with the sole purpose of improving her refugee claim.’
[57] At [60], the Second Respondent ‘did not accept that she has done any reading of the bible outside of that required by Pastor Dean, a finding reinforced by her absence of knowledge regarding events leading up to Jesus’ crucifixion; these events are well covered in the bible and if she believed that reading the bible was comforting as she Claimed then it is reasonable to expect that she would have some reasonable understanding of such events.’
[58] At [61], the Second respondent ‘g[a]ve little weight to the applicant’s auntie’s evidence in support of the Applicant’s conversion.’
[59] At [62], the Second Respondent ‘also d[id] not accept that she continues to pray as Reverend Dean claimed she told him. The Tribunal has highlighted the issues regarding the applicant’s lack of credibility and finds that this claim has been fabricated.’
[60] At [62], the Second Respondent found that ‘given her conversion is not real, but has been deliberate and targeted I am not satisfied that she would make any effort to practice Christianity if she were to return to Iran.’
[61] At [68], the Second Respondent’ did not accept that the applicant has any interest in Christianity or has genuinely converted to Christianity, 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 she has any interest in Christianity through attending church or religious education or of her baptism, or that she has or will come to the attention of the authorities for Islamic non-observance or anti-regime political views I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.’
[62] The Second Respondent misapplied the applicable law or failed to answer the correct question for the following reasons.
[63] First, by making the finding that the Applicant was not a ‘genuine’ Christian, the Second Respondent violated the Applicant’s right to freedom of religion at a temporal or spiritual level.
[64] Second, the Second Respondent denied the Applicant her right to physically practice Christianity in Australia, as the Applicant will be imminently refouled to Iran; and the Applicant is unable to practice Christianity in Iran, where it is illegal and apostasy carries the death sentence.
[65] Third, the Second Respondent erred by applying an erroneous or subjective definition or test on the Applicant as to what is a ‘genuine’ Christian and what is not a ‘genuine’ Christian.
[66] Fourth, the Second Respondent impermissibly imposed religious observance on the first applicant by imposing a test or definition as to what is a ‘genuine’ Christian.
[67] Fifth, the Second Respondent impermissibly prohibited the Applicant’s free exercise of religion by finding she was not a ‘genuine’ Christian.
[68] Sixth, the Second Respondent acted without power – the member has not been ordained and does not have any formal religious authority, training, knowledge, expertise or experience to apply a test or definition of religion on the Applicant and did not have any power to determine who is, or who is not a ‘genuine’. The second respondent erred by taking on the role of arbiter, pontificator or inquisitor of the doctrines of Christianity and transformed a secular hearing into an ecclesiastic forum, when the member has no authority or power to do so.
[69] Seventh, it was impermissible for the second respondent to test or define the level of the applicant’s belief, knowledge or understanding of the religion. Alternatively, it was impermissible for the second respondent to evaluate the applicant’s beliefs against the doctrines of religion.
[70] Eighth, there was not a sufficiently disclosed rational basis for concluding that the elements of which the Applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know.
[71] Ninth, there was a sufficient lack of rational or logical connection between the assessment by the Second Respondent of the Applicant’s credit and the material upon which it relied on to make that assessment.
[72] Tenth, the right to the free exercise of thought, conscience and religion is expressed in the opinio juris of international law, including the international bill of rights inter alia and is widely accepted as a principle of customary international law, which has been adopted and incorporated by the common law of Australia.
[73] Finally, the right to the free exercise of thought, conscience, religion or belief is an absolute right, which cannot be violated by the State or its officers. Alternatively, if the right to the free exercise of thought, conscience, religion or belief is relative, then the exercise of power by the Second Respondent was not reasonably necessary nor proportionate to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
(b) Section 91R(3)
[74] The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to section 91R(3) of the Migration Act 1958 (Cth).
[75] At [59] – [60], the Second Respondent found that the ‘applicant’s baptism and her limited church attendance has been deliberate and targeted’ and that ‘the actions regarding her church attendance, attendance at religious education and baptism have been done deliberately and with the sole purpose of improving her refugee claim.’
[76] From [12] – [15], there was evidence before the Second Respondent that the Applicant’s interest in Christianity began when she 11 or 12 years of age and continued into University.
[77] Clearly, there are many complex and varied reasons as to why the Applicant decided to convert to Christianity, including personal, spiritual, familial, political and social reasons. As such, the second respondent erred by finding that the Applicant’s conversion to Christianity was for the ‘sole’ reason to enhance her protection claims under the refugee criterion.
Ground 5: Relevant/Irrelevant Considerations
[78] For the reasons particularised from [10](a) – [37](y), the Second Respondent failed to take into account a relevant considerations or took into account irrelevant considerations, when exercising power.
Ground 6: No Evidence
[79] For the reasons particularised from [10](a) – [37](y), there was no evidence or other material to justify the making of the decision or the second respondent relied on facts, which did not exist, when the member made a series of adverse credibility findings, 24 in total, which rejected out of hand, the Applicant’s claims on the basis of credibility.
Ground 7: Unreasonableness
(a) For the reasons particularised from [10](a) – [37](y), the Second Respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power. Alternatively, the second respondent reasoned illogically or irrationally and the findings lack evident or intelligible justification.”
[Errors in original]
The following is necessary in terms of clarification. Grounds one and two are identical in both the document of 1 July 2015 and the document of 14 July 2015. Ground seven, other than for a different paragraph reference is also identical in both documents. Grounds five and six in the document of 14 July 2015 are a repetition (other than for paragraph references) to grounds six and five respectively, of the document of 1 July 2015. That is, the same grounds in reverse order.
The document of 1 July 2015 also has a ground three. It can be described as the “Constitutional ground”. This appears to have been abandoned in the document of 14 July 2015.
The document of 1 July 2015 has a ground four headed “Error of law – Misapplication of law or failure to ask the correct question”. The identical heading is at ground three of the document dated 14 July 2015. Both grounds appear to make the same assertions of legal error. However, ground three of the document of 14 July 2015 repeats in detail the particulars to ground three of the document of 1 July 2015. In essence, the references to various findings made by the Tribunal and repeated assertions of legal error. Further, the document dated 14 July 2015 has no ground four.
In an explanatory “submission” dated 13 July 2015, the applicant’s counsel stated that in relation to ground three of the document of 1 July 2015 (the “Constitutional” ground), the Court was bound to follow the Federal Court in SZUDI v Minister for Immigration and Border Protection [2015] FCA 530 (“SZUDI”) and the Court would therefore deny leave to amend the application to include “s116 of the Constitution”. He sought leave to rely on what he described as the “administrative law equivalent reflected in the decision of SZ[O]CT v Minister for Immigration and others.”
At the commencement of the hearing, the applicant’s counsel submitted that the applicant had decided not to proceed with the “Constitutional” ground given SZUDI, but sought to replace it with the “administrative law ground”. In context, this appeared to be a reference to ground three of the document of 14 July 2015 which, as set out above, made similar assertions of legal error as in ground 4 of the document of 1 July 2015 but with “additional” particulars referencing the Tribunal’s decision record.
However, as the hearing progressed the question of what the applicant sought to press became unclear. Counsel for the applicant vacillated on the question of whether to “abandon” ground three in the document of 1 July 2015, that is, the “Constitutional ground”.
Ultimately I granted leave for an amended application containing grounds 1, 2, 4, 5, 6 and 7 of what is set out at [7] above. That is, what is set out in the document of 1 July 2015, and noting in relation to ground four in that document, that I have had regard to the particulars as set out in ground three of the document of 14 July 2015 to the extent that they appear to relate to ground four of the document of 1 July 2015. The hearing proceeded with submissions in relation to those grounds.
In relation to ground three in the document of 1 July 2015 (the “Constitutional” ground), the hearing was adjourned to enable the applicant to attend to any preliminary matters required to allow the ground to be considered. The intention was to resume the hearing at a later date in relation to whether leave should be granted to allow the applicant to amend his application with the proposed “Constitutional ground”. The “administrative law alternative” appeared to lapse in these circumstances, or to have been subsumed into ground four of the amended application (see further below at [71] – [106]).
Background
The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) in this matter which is in evidence before the Court. The following background is relevant to the consideration of the applicant’s grounds.
The applicant is a national of Iran who arrived in Australia on 15 February 2011 as a student (CB 3). On 22 November 2012 she applied for a protection visa (CB 1 to CB 51). She was assisted by a registered migration agent (CB 26). The delegate refused the grant of the protection visa on 8 August 2013 (CB 80 to CB 84).
The applicant applied to the Tribunal for review of the delegate’s decision on 14 August 2013. She continued to be represented by a registered migration agent (CB 107 to CB 112). She attended a hearing before the Tribunal on 5 March 2014. She gave evidence, as did a number of witnesses on her behalf. Her representative was present at the hearing (CB 152).
The applicant’s claims to protection were set out in her application (CB 8 to CB 9), in a Statutory Declaration (CB 62 to CB 73), at an interview with the delegate (see the delegate’s references at CB 95 and CB 98 to CB 100) and also her evidence to the Tribunal (CB 147 to CB 150 and [11] at CB 162 to [14] at CB 166).
The basis of the applicant’s claim to fear harm on return to Iran was said to be her conversion to Christianity. The applicant’s relevant factual claims were that:
1)She became interested in Christianity through a friend while at school in 2007. In 2008 she was expelled from University in Iran after questioning by security officials. She had been questioned about not attending mandatory Islamic instruction classes, her friendship with her classmate who was a practising Christian, her father’s political views, and the Christian activities of her uncle (through marriage).
2)She then went to the United Kingdom (“UK”) to study English. However, she was required to leave the UK regularly as each stay was limited by visa requirements. On her last attempt to re-enter the UK, she was detained at the airport and returned to Iran on a flight the next day. The UK authorities suspected that she intended to remain in the UK permanently. She did not raise any of her problems in Iran, which she claimed to the Tribunal had occurred prior to this time, with the UK authorities.
3)The applicant arrived in Australia on 15 February 2011 on a student visa. She attended the Ryde Baptist Church, where she was baptised on 23 December 2012.
4)Prior to this, the applicant’s mother visited her in Australia and attended the church with the applicant. She took photographs of the applicant at the church. Her mother returned to Iran on 7 November 2011. Her luggage was searched by the airport officials in Iran. They found the photographs on her mother’s digital camera, which led to her being questioned. Her mother was then forced to sign a declaration that she would contact the applicant and tell her to stop following Christianity. The applicant stopped attending church after this incident as she did not want to cause trouble for her mother.
5)The applicant’s mother told the applicant that if she returned to Iran she would be required to sign a declaration reaffirming her Islamic faith. She was not prepared to do this.
6)The applicant feared she would be harmed by the Iranian authorities because she converted to Christianity, and because of her unwillingness to reaffirm Islam. Further, she feared harm because of her views in support of personal, political and religious freedoms.
The Tribunal found that the applicant’s evidence regarding her claims lacked credibility. It did not find the applicant “to be a reliable, credible or truthful witness,” and went on to find that she had fabricated her claim so as to be granted a protection visa ([46] at CB 167). The Tribunal gave reasons for this finding and did not accept key and central aspects of the applicant’s claimed factual account.
The Tribunal did not accept that she had been expelled from university for failing to adhere to Islamic rituals. The Tribunal found, given its credibility concerns, and the absence of supporting documentation (an academic transcript or letter from the university), that the claim was a fabrication ([47] at CB 167).
While the Tribunal accepted that some photographs were taken at the church in Australia, it did not accept that her mother had been stopped at the airport on her return to Iran and that her bags had been searched, and that photographs in hard copy, and on the digital camera, had been found by the Iranian authorities ([48] at CB 167).
These findings were informed by the Tribunal’s consideration of the applicant’s evidence that her family members were aware of the sensitivity of her conversion, and that they had issued warnings to her about the danger from the Iranian authorities if they found out. The Tribunal also considered other evidence from the applicant about the high degree of security awareness of the applicant’s family ([49] at CB 167).
In light of this, the Tribunal found that the applicant’s claims about her mother’s return lacked credibility, in that her mother would willingly engage in conduct that would implicate the applicant, or leave her exposed to accusations of Christian activities. The Tribunal found that in the circumstances, the applicant’s account of her mother’s return had been fabricated. The Tribunal also rejected the claim that the Iranian authorities told her mother that they knew she had attended church in Australia ([50] at CB 167).
The Tribunal did not accept that the applicant had had an interest in Christianity since 2007. The Tribunal found that despite claiming to have this interest, she travelled to the UK on five occasions, and to Germany, Italy and France before coming to Australia, and did no research on Christianity despite the opportunity to do so ([51] at CB 167).
The Tribunal found that visiting a church in Italy, which she was unable to identify, was nothing more than an activity engaged in by many non-Christian tourists. The Tribunal rejected the applicant’s explanation as to why she did not do any relevant research ([52] at CB 167). The Tribunal also found that she exhibited no interest in “spiritual exploration, nor in Christianity”, and made no attempt to research Christianity despite her claimed apparent interest ([53] at CB 168).
The Tribunal noted that she subsequently attended the North Ryde Baptist Church but found that the 18 month delay between arriving in Australia and attending church remained unsatisfactorily explained ([53] at CB 168). The Tribunal also found that the applicant’s commitment to, the practise of, and knowledge of, her “new” faith remained limited ([54] at CB 168).
The Tribunal found that, as at the time of decision, the applicant no longer attended church and there were inconsistencies in her evidence as to when she stopped attending. Even at best for the applicant, it found she had attended church for 8 months in the three years she had been in Australia. The Tribunal found that this was not indicative of a commitment to what was said to be, the applicant’s “new” religion ([55] – [57] at CB 168).
The Tribunal did not accept the applicant’s explanation that she did not attend church because “there were spies everywhere” ([56] at CB 168). It accepted she had attended for a short period of study in preparation for baptism, and had subsequently been baptised. However, it did not place any weight on the evidence of the church pastor, Reverend Dean, which it otherwise found to have been provided in good faith, as to the genuineness of her conversion, because he had unquestioningly accepted the applicant’s account of past events at “face value”. These were events that the Tribunal had found had not occurred, and had been fabricated by the applicant ([58] at CB 168).
The Tribunal found that the applicant’s “baptism and limited church attendance ha[d] been deliberate and targeted”. It disregarded this conduct pursuant to s.91R(3) for the purposes of consideration of the criterion at s.36(2)(a) of the Act ([59] – [60] at CB 169).
The Tribunal did have regard to this conduct for the purposes of the consideration of the criterion at s.36(2)(aa) of the Act. It found that because her conversion was not genuine, she had no interest in Christianity, would not seek to practice or promote Christianity in Iran (see also [62] at CB 169), or that anyone in Iran was aware, or was likely to become aware of her conduct, that s.36(2)(aa) of the Act was not satisfied ([68] – [69] at CB 170).
The Tribunal accepted that the applicant was “an unobservant Muslim”. However, it did not accept that this had caused, or would cause her, to come to the attention of the Iranian authorities. The Tribunal relied on country information that, amongst other things, stated “that the Iranian authorities do not normally interfere in the private religious lives of their citizens” ([63] at CB 169).
The Tribunal addressed the applicant’s claims that she held political views against the Islamic regime in Iran. The Tribunal found that there was no evidence that she had “demonstrated against the regime, or had any anti-regime profile”. It found “that she was of no interest to the Iranian government” ([64] at CB 169).
Further, the Tribunal did not accept that she had been expelled from university for not attending compulsory religious classes ([65] at CB 169), and also did not accept that her father was involved in
anti-regime activities ([66] at CB 170).
The Conduct of the Case before the Court
I note the history of the progression of this matter before the Court as outlined above in this judgment. Without leave and following some considerable period after the relevant time allowed by the Court’s orders, the applicant has continued to file amended applications and amended submissions.
As set out above, the “latest” application contains seven grounds, some with alternative propositions, and a ground involving Constitutional issues (ground 3 – see further below). The “latest” written submissions (those dated 13 July 2015 - “AS”), and it must also be said, the oral submissions at the hearing, sought to impugn nearly every facet of the entirety of the Tribunal’s decision record.
As a matter of fairness to the Minister, and given the opportunity granted to the applicant to rely on an amended application “settled” at the final hearing in the circumstances described above, and given she was represented by counsel, this judgment has sought, in large part, to focus on the grounds as pleaded, rather than attempt to deal with those parts of the submissions which remained unsatisfactorily explained, and whose relevance to those grounds remained unclear.
As set out above, the question of the “proposed” ground three was left open at the conclusion of the hearing to allow the applicant the opportunity to take appropriate steps to properly press the ground. Subsequently, the applicant sought and was granted, an extension of the available time to allow the outcome of AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 (“AMF15”), a matter before the Full Federal Court, which the applicant said involved the question of the s.116 Constitutional argument (see further below at [125]).
Consideration of the Grounds
Ground one appears to plead three separate assertions of legal errors, but all appear to arise from similar interrelated propositions. The jurisdictional errors are said to be as follows.
First, that the Tribunal failed to make a finding on a “substantial, clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] (“Dranichnikov”)).
Second, that the Tribunal fell into jurisdictional error because it failed to deal with the applicant’s claims (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE (No 2)”) and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 (“Htun”)).
Third, that the Tribunal made adverse credibility findings without giving the applicant the prior opportunity, or “warning”, to give evidence either before, during, or after the hearing. This was said to be in violation of the fair hearing rule. The applicant submitted that this should be seen in light of the notion of fairness, which informs the rule in Browne v Dunn (1983) 6 R. 67 (“Browne and Dunn”) and constitutes a ground for review (Meadows& Anor v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 654 (“Meadows”)).
In support of these contentions the applicant referred to a large number of the Tribunal’s findings found at [47] (at CB 167), [48] (at CB 167), [50] (at CB 167), [51] (at CB 167), [52] (at CB 167), [53] (at CB 168), [54] (at CB 168), [55] (at CB 168), [56] (at CB 168), [57] (at CB 168), [58] (at CB 168 to CB 169), [59] (at CB 169), [60] (at CB 169), [61] (at CB 169), [62] (at CB 169), [63] (at CB 169), [64] (at CB 169), [65] (at CB 169 to CB 170), [66] (at CB 170), [67] (at CB 170), [68] (at CB 170) of its decision record. The submissions refer to 24 such findings. In short, nearly every finding of substance made by the Tribunal.
Contrary to what is set out as the pleading, and in spite of what is set out in written submissions, and even beyond what the applicant initially submitted before the Court in relation to ground one, during the course of the oral submissions, the applicant’s “complaints” took on a different character.
It was clear that the applicant’s long list of references to the findings made by the Tribunal did not support the proposition that the Tribunal failed to consider a claim or that it did not make a finding on a substantial clearly articulated argument, in the sense explained in the relevant authorities.
At best I understood the subsequent complaint to be that the Tribunal stated, at the “beginning”, which was later explained as the “beginning” of its analysis in the decision record (in context therefore [46] at CB 167), that the applicant’s evidence lacked credibility and that this finding influenced the subsequent findings, because the Tribunal member exhibited a closed mind and therefore “failed to review”. Plainly such a submission, in essence, is an attempt at an allegation of bias, even the apprehension of bias on the part of the Tribunal member.
The submission was not helpful in explaining the ground as pleaded. It does not support any of the various alternative legal errors expressed in the ground. It may be that such a submission could be relevant to ground two, but its relevance to ground one was not satisfactorily explained.
In any event, the claimed basis for the argument reveals why the complaint is without merit. That is, that the Tribunal at the “beginning” of its analysis had made up its mind as to the outcome, and failed to properly consider the applicant’s claims because it had already determined the outcome.
It is trite to say that Tribunal decisions are to be read fairly. That is, any impugned parts are to be read in context and holistically (Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. Contrary to the applicant’s submissions, I did not comprehend the Tribunal’s analysis to be illustrative of the Tribunal advancing the “conclusion” as to the applicant’s credibility at [46] (at CB 167), and then engaging in an evolving stream of consciousness in some exploratory fashion into the unchartered territory of the applicant’s claims. Rather, and simply, the Tribunal set out its conclusion then gave extensive reasons probative of the evidence before it, and now before the Court, to explain how it reached that conclusion.
In essence and as ultimately explained, the applicant’s first complaint before the Court is that the Tribunal failed to properly deal with the claims advanced by her, and she relied on Dranichnikov, NABE (No 2) and Htun to support this claim. At its highest, this seeks impermissible merits review, and is not capable therefore of revealing jurisdictional error.
The applicant’s submissions made reference to Browne v Dunn and Meadows. At best I understood this reference was put for the purpose of then submitting that the Tribunal’s failure to put the applicant on notice that her entire factual account would be rejected constituted a failure of procedural fairness.
There is no doubt that the Tribunal is required to provide the applicant with procedural fairness. However, the applicant’s reliance now on Browne v Dunn and Meadows is misplaced, given what was subsequently, and relevantly, said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437. In short, the rule in Browne v Dunn does not apply to Tribunals statutorily empowered to proceed in an inquisitorial, and not adversarial, manner. No jurisdictional error is revealed with this argument in support of ground one.
This is a case to which s.422B of the Act applies in relation to the matters dealt with in Division 4 of Part 7 of the Act (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214). That is, what is set out in that division is the exhaustive statement of the natural justice hearing rule in relation to these matters (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252; 267 ALR 204).
Section 425 of the Act is to be found in Division 4 of Part 7 of the Act. It requires that an applicant must be invited to a hearing so as to give evidence and put arguments in support of their claims. As various authorities have explained, the invitation must be a meaningful opportunity for that to occur (SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; (2007) 164 FCR 14 at [53] per Allsop J, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]).
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), a matter dealing with s.425 of the Act, the High Court explained that the Tribunal must give an applicant a fair and sufficient opportunity to give evidence and arguments about the determinative issues in the review, which were not “live” issues as a result of the delegate’s decision.
It is clear on a plain reading of the delegate’s decision, that the credibility and genuineness of the applicant’s central claim, that is, her claimed interest in Christianity and her conversion to Christianity in Australia, was at issue. The delegate made comprehensive adverse credibility findings in relation to the applicant’s claims. The applicant’s complaint now that the Tribunal’s failure to put her on notice as to the issue of her credibility is disingenuous given the delegate’s decision record. The applicant would have been reasonably on notice that the credibility of the factual basis and genuineness of her claims was at issue.
In any event, the applicant has not put before the Court any evidence, including a transcript, of what occurred at the Tribunal hearing. The only evidence before the Court are the Tribunal’s references in its decision record to what occurred.
That evidence reveals that the applicant was given a fair opportunity to give her evidence and make submissions on the determinative issues in the review, including issues before the delegate. The applicant’s complaint now that, in effect, the Tribunal should have given her, during the hearing, a running commentary of its thought processes as to how it might assess her evidence when it came to make its decision, must be rejected (SZBEL at [48], Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 at [64]).
In any event, the evidence before the Court is such as to show that the Tribunal did put its concerns to her for comment. It would have been reasonably clear that the entire factual account of her central claim (except for the act of baptism in Australia which the Tribunal accepted) was at issue. The simple fact that the Tribunal was not persuaded by the applicant’s evidence does not provide any basis for the claim that she was denied procedural fairness, or that the Tribunal failed to bring an open mind to the review, or that a well-informed lay observer might apprehend that it did not do so (see also ground two below). In all, ground one is without merit and is not made out.
Ground two asserts that the Tribunal’s decision was “vitiated” by a reasonable apprehension of bias. The applicant submitted that the relevant test is whether “a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question” (Webb v R [1994] HCA 30; (1994) 181 CLR 41, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
The applicant’s argument initially rested on the proposition that the relevant test is made out because in its decision record, the Tribunal “commenced” the consideration of the claims and evidence with an adverse credibility finding before any “discussion” of the applicant’s claims. The applicant argues that the Tribunal’s mind was “obviously closed from the outset”. The complaint is similar to the argument in ground one and is without merit for the reasons given above.
As has often been said, claims of bias must be “distinctly made and clearly proved” (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69], SZRUI v Minister for Immigration, Multicultural and Indigenous Affairs and Citizenship [2013] FCAFC 80 at [22]). Therefore, any party alleging bias against an administrative Tribunal bears a heavy onus. Such as allegation is, after all, an attack on the integrity of the decision-maker. Given that onus, it has been noted that it is difficult to establish bias relying only on the Tribunal’s written reasons (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J, SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358).
Again, it is necessary to state that it is trite to say that Tribunal decisions must be read fairly. As stated above, that includes that they be read holistically. As set out above, the applicant’s argument rests on the proposition that Tribunal decisions are to be read as some temporal, linear expression of a Tribunal member’s stream of consciousness about an applicant’s claims.
Contrary to what is stated in the applicant’s ground, the Tribunal’s finding as to the credibility of the applicant’s evidence is expressed at [46] (at CB 167), and not [42] (at CB 167). Nonetheless, it may be allowed that in setting out its reasoning, the Tribunal stated its finding as to credibility and then set out the reasons explaining that conclusion. As the Minister submits, that is not an unusual method of presenting findings. I cannot see that the Tribunal’s approach in this regard can be seen to provide any basis for an allegation of the apprehension of bias, let alone that the relevant test can be made out on this basis.
In oral submissions, the applicant also sought to impugn the Tribunal’s specific findings which informed the conclusion as to credibility as a means of making out the ground. The submission was that there were twenty four adverse credibility findings which represent the Tribunal’s “out of hand” rejection of the applicant’s claims on a “speculative basis”.
The applicant pointed to [58] (at CB 169) of the Tribunal’s decision record as an example of this. At that paragraph, the Tribunal found that it was unable to lend weight to Reverend Dean’s opinion as to her Christian conversion in Australia. The applicant says that the Tribunal accepted that the applicant had been baptised, yet gave no weight to the evidence of Reverend Dean regarding the genuineness of her conversion and this therefore reveals bias (I note that the ground alleged apprehended and not actual bias).
The Tribunal’s reasons for not giving weight to Reverend Dean’s evidence were that his view of the genuineness of her conversion was based on the applicant’s own account of past events, which the Tribunal found had not occurred, and that his opinion of her conversion was “formed in whole or in part based on the applicant’s claims regarding her pre-existing interest in the faith” ([58] at CB 169).
This finding was reasonably open to the Tribunal on what was before it. Further, the apprehension of bias is not made out simply because the Tribunal did not believe an applicant’s claims and evidence. The Tribunal is not required to uncritically accept an applicant’s evidence (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 535; (1994) 52 FCR 437). The weight to be given to evidence is also a matter for the Tribunal (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (“Abebe”)). This does not form a basis to even assert the apprehension of bias. There is no merit in the applicant’s ground in the way she has sought to explain it. In the circumstances, this is no more than a request for impermissible merits review. Ground two is not made out.
Ground four asserts that the Tribunal fell into jurisdictional error because the Tribunal misinterpreted, misunderstood or misapplied the applicable law, or otherwise failed to ask the “correct question.” I understood the applicant’s ground to seek to impugn the Tribunal’s approach and findings in a number of ways, in relation to the matter of the applicant’s claim to have (genuinely) converted to Christianity.
This ground is closely aligned, in its factual assertions and in some of the arguments, with ground three (see above in relation to the evolution of the case and see further below). I have sought to extract from the applicant’s arguments for the purposes of ground four, those aspects which relate to ground three.
In this light, ground four, sought to attack the Tribunal’s decision in three broad ways. First, on the matter of the “definition” of religion and the Tribunal’s alleged failure in defining religion, and what was said to be its consequent misapplication of the law. Second, that the Tribunal lacked the requisite “expertise” to conduct the task of assessing the genuineness of applicant’s claimed religious conversion. Third, that the Tribunal erred in its application of s.91R(3) of the Act.
There appear to be two elements to the first attack. One, the applicant submitted that in order to be able to determine that the applicant was not a genuine Christian, the Tribunal was required to set out a “definition” of what a genuine Christian is. In essence, the complaint was that the Tribunal applied its own subjective view without some proper basis for assessing the claim.
Two, that the Tribunal made findings in relation to the applicant’s religious persuasion in an arbitrary fashion. That is, that the Tribunal, as a secular body constituted by a “secular” member, “transformed a test of credibility into a test of religion.” This therefore appeared to be ultimately linked to the second complaint.
In support of her ground, the applicant referred to Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 (the “Scientology Case” as the applicant referred to it before the Court).
The applicant’s reliance on this case appeared to be for the purpose of submitting the following propositions. First, the “criteria for religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the accepted canons of conduct in order to give effect to that belief” (AS at [62]). Second, there is no definition of religion in law. Third, a test of religious knowledge is not a test of religious belief.
The applicant submitted that in light of this, if the Tribunal wanted to embark on a consideration of whether the applicant’s conversion to Christian belief was genuine or not, it was required to have “a definitional basis to start from”, and the Tribunal did not express any such basis.
The applicant did not satisfactorily explain the seeming inconsistency between that assertion, and the second proposition (at [77] above) on which she said she relied. If there is no definition of religion in law, then how could the Tribunal be expected to apply a definition as the applicant now also submits it should have.
In any event, a reference to more recent and relevant authorities may have assisted the applicant in considering the efficacy of ground four in this regard.
The applicant’s complaint, perhaps, can charitably be better understood as being that the Tribunal erred in the manner in which it understood the consideration of the applicant’s claim about her belief in Christianity and her relevant conduct after arrival in Australia.
It is clear that the Tribunal must not adopt a position that has been described as an “arbiter of religion” (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28] – [30]). In Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 (“SZLSP”) Kenny J stated at [37] – [39]:
“[37] These authorities indicate that the question whether applying an ‘arbitrary standard’ of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that ‘every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion’ may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
[38] Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
[39] If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.”
The applicant’s submissions that certain Full Federal Court authorities should not be followed because they are plainly wrong, cannot possibly assist the applicant in her proceedings in this Court (see for example AS at [94] – [95] and [100] and the reference to Minister for Immigration and Citizenship v SZOCT & Anor [2010] FCAFC 159; (2010) 189 FCR 577 per Buchanan and Nicholas JJ (“SZOCT”)). That statement is so obvious in the circumstances it should require no further explanation. However, for the applicant’s benefit it is clear that this Court is bound by the Full Federal Court authorities and must follow them. I did not understand the applicant’s submission to have been put in any “protective” fashion.
As the Minister submits, the more recent authority of MZZJO v Minister for Immigration [2014] FCAFC 80 (“MZZJO”) which reviewed relevant authorities provides the basis against which to assess what the Tribunal did in the current case, in relation to the question of the applicant’s religious claim. In that case, the Court considered the similar issue as was before the Court in the cases referred to in the applicant’s submissions, SZOCT, Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 , SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129, Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548, WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2, SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”), Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (see footnotes 8 – 10 of AS).
In MZZJO the Court explained at [47]:
“The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge: see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]; WALTv Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[32]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [37] per Kenny J; SZOCT 189 FCR 577; [2010] FCAFC 159 at [41], [50] per Buchanan J; SZLSPv Minister for Immigration and Citizenship (2012) 127 ALD 495; [2012] FCA 451 at [34]-[36] per Bromberg J.”
As set out variously above, the Tribunal in the current case found the central parts of the applicant’s claims, not just those relating to religious conviction and conduct, to be lacking in credibility, and that many parts of her claims were a fabrication so as to achieve the grant of a protection visa. As referred to above, the Tribunal’s conclusion as to the applicant’s lack of credibility is expressed, as referred to above, at [46] (at CB 167). This was explained with reference to a number of factors.
One, the lack of supporting documentation for her claims to have completed two semesters of study at university, and her claim to have been expelled for the failure to attend to Islamic rituals ([47] at CB 167).
Two, the applicant’s claims concerning her mother’s return to Iran and the claimed confiscation of certain photographs was implausible in light of other evidence she gave about her family ([48] - [50] at CB 167).
The Tribunal’s consideration of the applicant’s claims concerning her religious conversion, beliefs and conduct is set out at [51] (at CB 167) to [63] (at CB 169). I do not accept the applicant’s submission that the Tribunal impermissibly sought to impose some arbitrary or
pre-conceived standard of what the applicant’s religious knowledge should be in order to be believed.
Rather, on the evidence presented, the Tribunal’s adverse findings were to compare her lack of relevant knowledge and satisfactory explanation of the evolution of her religious beliefs, with her claim to have a profound interest in Christianity, and to have become committed to it since coming to Australia.
As to her claimed Christian conduct in Australia, it was reasonably open to the Tribunal to find on the evidence before it, that the applicant had no real link to any Christian church community in Australia, other than for a short period, which coincided with the time of her application for the protection visa.
I agree with the Minister that the Tribunal considered and evaluated the totality of the evidence before it in addressing the question of the genuineness of the applicant’s claim to certain religious beliefs. That evidence, and the material before the Tribunal, was rationally capable of assisting the Tribunal in formulating its conclusion about her religious belief. This was consistent with what was said in MZZJO, and for that matter, contrary to the applicant’s submissions, consistent with what was actually and relevantly said in SZOCT.
It must also be said that, in part, the applicant’s submissions before the Court appeared to suggest that it was not appropriate for the Tribunal to question the applicant’s religious commitment. It may be that this was some “rehearsal” for the applicant’s s.116 Constitutional argument. In any event, as the Full Court said in MZZJO at [47], “[t]here is no immunity from scrutiny simply because the Convention ground is religious belief”.
In my view, this part of the applicant’s attack in ground four on the Tribunal’s reasoning really seeks to cavil with the Tribunal’s findings on credibility, and is therefore, again, seeking impermissible merits review.
The second aspect of the applicant’s submission in relation to ground four was that the Tribunal member had no formal training or religious authority, knowledge or expertise “to apply a test or definition of religion on the … applicant” (AS at [107]). The implication in the submissions appears to be that the Tribunal should have accepted the evidence of such an expert, namely, Reverend Dean (see also AS at [108]).
Again this suffers from the contradiction in the applicant’s submissions concerning whether the Tribunal applied any such definition (see
[74] – [78] above). The applicant’s submissions did not include any reference to any statute or authority requiring the Tribunal to have such expertise or experience.
It is the case that the Tribunal is a lay Tribunal constituted by a lay member, for the purpose of conducting the review within the jurisdiction given by the Act. The process before the Tribunal is inquisitorial, not adversarial (Abebe, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162).
In the proper exercise of its jurisdiction, the Tribunal is required, amongst other things, to consider all the claims to protection made to it (Dranichnikov and NABE (No 2)) to evaluate all the claims and relevant evidence, to make findings of fact, including findings of fact as to credibility (Durairajasingham) and to then consider those findings in the context of the criteria for the grant of the visa set out at s.36(2)(a) and s.36(2)(aa) of the Act. If the Tribunal can reach the requisite level of satisfaction that either of the criteria (and other relevant criteria) are met, then the visa must be granted. If not, then the visa application is to be refused (s.65 of the Act and see SZMDS, Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354).
Contrary to the applicant’s, it must be said, confused, submissions, the Tribunal, in essence, was not persuaded that the applicant’s evidence of her claimed religious understanding, and conduct, was commensurate with her claim to have genuinely embraced Christianity. It gave extensive and cogent reasons for this.
On the evidence before the Court, the Tribunal did not approach this task, with any pre-existing concept, or “definition”, of what a Christian should believe or how to conduct her or himself. Rather, the Tribunal sought from the applicant her own explanation of how her interest in Christianity had developed and how she had expressed, and was able to express, that interest. That is, that she had embraced and committed to the Christian faith.
That does not require an expert in Christian theology. It does require the applicant to make out her case that she had a genuine commitment to the Christian faith. She was unable to do so for the reasons given by the Tribunal. No legal error is revealed here.
I should also note that the relevant authorities, including those referred to by the applicant in submissions, all proceeded on the basis that the Tribunal, as a lay Tribunal, was able to address the question of the religious conversion. Of course, the exercise of the jurisdiction needed to comply with what the Full Court set out as the relevant approach in MZZJO. Again, it appears this was some attempt by the applicant to press the s.116 Constitutional argument in another form. For the purposes of ground four, as pleaded, this aspect of the applicant’s submissions has no merit.
The third element in ground four is the assertion that the Tribunal fell into jurisdictional error in relation to s.91R(3) of the Act. As set out above, the Tribunal found that the applicant’s “baptism and limited church attendance had been deliberate and targeted” ([59] at CB 169). It found that this conduct had been carried out “with the sole purpose of improving her refugee claim” ([60] at CB 169). It therefore disregarded this conduct for the purposes of her claims as against the criterion at s.36(2)(a) of the Act.
The applicant now submits that it was not open to the Tribunal to proceed in this fashion because there was evidence before the Tribunal that her interest in Christianity had commenced at an early age and continued up to, and including, the time she was at university in Iran.
The Tribunal’s decision record reveals that it did consider her claim that her interest in Christianity had arisen at an early age and continued through to her time at university (see [51] – [52] at CB 167). The Tribunal gave extensive reasons for its disbelief of the applicant’s claim which informed its finding in relation to s.91R(3) of the Act ([53] – [58] at CB 168). In the circumstances, the applicant’s complaint is no more than a request for impermissible merits review. It also lacks merit.
None of the arguments in support of ground four reveal jurisdictional error. In all, ground four is not made out.
Ground five asserts that there was no evidence before the Tribunal, or other material before it, to justify the making of the decision. Before the Court, the asserted error in the ground was explained as follows. The Tribunal made twenty four adverse credibility findings. There was no evidence to support these findings. The submission was then expressed as being that there was “an absence of evidence” to support the Tribunal’s findings. The applicant then further submitted that the “question” was whether there was “enough” evidence “to support the findings.”
Even when expressed at its highest, the applicant’s ground is without merit. Plainly, as has been repeatedly set out above, there was evidence before the Tribunal to provide the “foundation” for its adverse findings as to the applicant’s credibility. For the most part, that was the applicant’s own evidence.
The Tribunal’s disbelief of the applicant in circumstances where it gave reasons for that disbelief probative of what was before it, does not reveal that there was no evidence for those findings (Durairajasingham). What is revealed is that the applicant’s complaint is simply a way of again registering her disagreement with the Tribunal’s findings and conclusion. In all, ground five is not made out.
Ground six asserts that the Tribunal failed to take into account relevant considerations. The written submissions, again, albeit in this instance, briefly, refer to the 24 adverse credibility findings made by the Tribunal. The submissions assert that ([144] of AS):
“The individual and cumulative effect of those findings meant that the second respondent did not take into account the claims and evidence of the applicant, constituting jurisdictional error”.
Before the Court, the complaint was explained as the Tribunal dismissing “out of hand” the applicant’s credibility in relation to her claims. By “dismissing” the applicant’s claims in this way, the Tribunal was said not to have taken into account the applicant’s evidence, which, the applicant submitted contained the “relevant considerations” that should have been taken into account.
In light of what has been set out above in relation to the matter of the adverse credibility findings, the submissions in relation to this ground reveal the lack of merit in the ground. This is simply yet another attempt by the applicant to complain about the fact finding exercise conducted by the Tribunal. Ground six is not made out.
Ground seven asserts that the Tribunal exercised its power in a manner so unreasonable that no reasonable person would have so exercised the power. In this regard, the applicant appears to rely on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB (“Wednesbury”). Further, the applicant relies on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) to plead that the Tribunal “reasoned illogically or irrationally and the findings lack evident and intelligible justification” ([145] of AS).
Again, the applicant’s focus centred on the Tribunal’s adverse credibility findings. Before the Court, the applicant pointed to a number of the Tribunal’s findings to explain her position. While the applicant’s submissions focussed on individual findings by the Tribunal, it can be accepted that the ground could possibly be taken as an assertion that the Tribunal’s decision was unreasonable, illogical or irrational given the centrality of the adverse credibility findings, and when viewed in their totality, to the Tribunal’s decision to affirm the delegate’s decision. That is, the conclusion on credibility, as informed by a large number of findings, was central to the decision made and therefore the decision as a whole was unreasonable, illogical or irrational.
In essence, the applicant’s ground, again, is a challenge to the Tribunal’s findings and another attempt to seek merits review. Bearing in mind the relevant “tests” explained in Wednesbury, Li and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (“SZMDS”) (per Crennan and Bell JJ) (see also Minister for Immigration and Border Protection vSingh [2014] FCAFC 1; (2014) 231 FCR 437 and Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559; (2005) 231 FCR 36), the applicant did not satisfactorily explain before the Court how her disagreement with the Tribunal’s findings, in the absence of anything else, was sufficient to make out any of the iterations of her ground.
An example of the applicant’s unmeritorious approach in submissions can be seen with reference to [53] of the Tribunal’s decision (CB 168). The Tribunal stated:
“Even when she arrived in Australia she exhibited no interest in spiritual exploration, nor in the Christianity that she claimed to be so interested in. Despite having arrived in Australia in February 2011, she made no attempt to research Christianity, let alone other religions. It was not until October 2012 that she attended the North Ryde Baptists church. Although she claimed that a conversation with a friend from university prompted her to explore Christianity, she waited for over six months to go to the church. I am not satisfied that the eighteen months delay between arriving and attending church can be explained by the need to study and settle in, nor the more than six months between talking with her friend and attending was because she had to wait to get permission from her parents before doing it.”
The applicant’s submissions did not rise above the assertion that that “was unreasonable”. The applicant argued before the Court that taking eighteen months to “settle in” after arrival in Australia was reasonable. The Tribunal’s finding was therefore unreasonable because it takes time to “build networks” and “meet people” in a new country.
That may possibly be the case. However, it was reasonably open to the Tribunal to take the view that the applicant, who had claimed to have had a long standing and growing interest in Christianity before coming to Australia, did not exhibit any interest in “spiritual exploration” in Christianity after arrival in Australia, and only attended church some eighteen months after arrival, and at a time that coincided with her protection visa application.
When the Tribunal’s finding on this point is read in context with all the other findings that informed its conclusion on credibility, it cannot be said that the Tribunal’s decision was so unreasonable that no reasonable decision maker could have come to it (Wednesbury).
Nor with reference to the level of satisfaction that must be reached (s.65 and see [98] above), can the decision be said to be one where no rational or logical decision maker could arrive at the same conclusion on the evidence (SZMDS at [131]).
In SZMDS (at [131]) the High Court made clear that a Court “should be slow, though not unwilling, to interfere in an appropriate case” (per Crennan and Bell JJ, see also Li at [106] per Gageler J). This is not a case where the Court should interfere, because given the circumstances presented, that would involve the imposition of the Court’s view and analysis of the evidence before the Tribunal, rather than that of the Tribunal.
As set out above, the applicant also referred to the plurality in Li to argue that there was no “intelligible justification” for each of the Tribunal’s findings that informed its adverse conclusion as to the applicant’s credibility. However, she was unable to satisfactorily explain how what the plurality said in Li applied to her case. Nor did she indicate an understanding of the distinction between the exercise of a statutory discretion for example, as in Li, the issue of whether to adjourn the review, and what occurred in this case, the making of findings of fact which informed the Tribunal’s analysis of the evidence before it in the context of s.65 of the Act.
In any event, the Tribunal did provide an “intelligible basis” for its decision. As set out above, each of the Tribunal’s findings on credibility were all reasonably open to the Tribunal on what was before it, and their totality revealed that intelligible justification for affirming the delegate’s decision. In all, ground seven lacks merit and is not made out.
As set out above, the question of ground three of the application involving s.116 of the Constitution was adjourned (see [41] above). Ultimately, this was to allow for the handing down of AMF15, which the applicant said would provide Full Federal Court authority on the question of her s.116 “Constitutional ground”.
The Full Federal Court handed down judgment in AMF15 on 20 May 2016. The Full Court did not need to decide the s.116 Constitutional question given other findings made in allowing the appeal (see AMF15 at [53]).
No approach has been made to this Court by the applicant since 20 May 2016 to seek any further adjournment of the disposition of this application, or to indicate the possibility of making further submissions on the s.116 “Constitutional ground” to those already made.
In this light, there is no reason now not to proceed to consider the efficacy or merit in the purported ground three and to determine whether leave should be granted to further amend the application to include ground three.
In essence the applicant’s assertion of error on the part of the Tribunal in the purported ground three arises from the approach taken with all the other grounds. That is, the applicant takes issue with the 24 adverse findings as to her credibility made by the Tribunal. The complaint is that the Tribunal’s findings regarding the applicant’s claims of interest in, and conversion to, and conduct in, the Christian religion amounted to contravention of s.116 of the Constitution.
The applicant’s argument is that s.116 applies to all the laws of the Commonwealth including the Act. The Tribunal’s findings made in the context of the Act were an imposition on religious observance on the applicant not permitted by s.116 of the Constitution.
The applicant’s arguments assert that, as with ground four, the Tribunal impermissibly applied a flawed and subjective definition of what is, or is not, a genuine Christian, impermissibly imposed religious observance on her, and impermissibly prohibited the applicant’s free exercise of conscience and belief.
The Minister’s position is that leave should not be granted to the applicant to amend her application to include the “new” ground three on the basis that the proposed ground is misconceived and must fail, and leave must be refused where there is no prospect of success.
The Court has given the applicant the opportunity to allow this issue to be examined in a superior Court. That opportunity has now been exhausted.
The same counsel appearing for the applicant in the current proceedings sought leave in SZUDI v Minister for Immigration and Border Protection [2015] FCA 530 (“SZUDI”), a matter in this Court, to amend the application in that case to include the following proposed grounds “[t]he second respondent made a series of adverse findings regarding the applicant’s conversion to Christianity which were otherwise contrary to s.116 of the Constitution” (see SZUDI at [13]). The terms of that ground are similar to the ground proposed in the current case.
Leave was not granted in SZUDI to amend the application to include that ground (see SZUDI at [22]). The applicant in SZUDI sought leave in the Federal Court to appeal, relevantly, the order refusing that amendment. This was refused by the Federal Court (see SZUDI per Siopis J). The following paragraphs from His Honour’s judgment are relevant to the current case ([14], [20] – [21] and [24] – [25]):
“[14] There was appended to this proposed ground of review a list of particulars in support of the ground of review. That list of particulars included by reference to each paragraph number in the Tribunal’s reasons for decision, each of the criticisms and adverse findings made by the Tribunal in relation to the credibility of the applicant’s claim to have been interested in Christianity before she came to Australia, and her purpose in attending church and being baptised after having arrived in Australia.
…
[20] The first question is whether there is sufficient merit in the applicant’s contention that the primary judge’s decision is attended by sufficient doubt to warrant an extension of time within which to apply for leave to appeal.
[21] In relation to the question of whether the primary judge’s decision is attended by sufficient doubt to warrant the grant of leave to appeal, the applicant contended that ss 36(2), 36(2aa) and 91R(3) of the Migration Act 1958 (Cth) were constitutionally invalid because those sections had the purpose of imposing religious observance and prohibiting the free exercise of religion, contrary to s 116 of the Constitution. This was because these sections of the Migration Act authorised the exercise by the Tribunal of powers for the purpose of imposing religious observance and prohibiting the free exercise of religion. The applicant said that the Tribunal had exercised those powers to question the manner in which the applicant had practised her faith as a Christian and to impugn the genuineness of her purpose in being baptised as a Christian.
…
[24] It is obvious that the sections of the Migration Act, which the applicant seeks to impugn, is not legislation for the purpose of imposing any religious observance or prohibiting the free exercise of religion. The purpose of the legislation is to give effect to Australia’s treaty obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and to make provision for the granting of protection visas pursuant to those obligations. It is no part of the purpose of those sections of the Migration Act to impose religious observance or to prohibit the free exercise of any religion.
[25] The impugned powers are incidental and have no purpose other than to permit the Tribunal to determine whether an applicant for a protection visa has satisfied the requirements for the grant of such a visa.”
Similarly in this case, the applicant, as repeatedly set out above, in relation to all the other grounds of the application relies on impugning a series of adverse findings regarding the applicant’s conversion to Christianity which are said to be contrary to s.116 of the Constitution. She relies on the same sections of the Act to advance her arguments.
The relevant circumstances in this case are identical to SZUDI. I do not understand the applicant in the current case to be seeking to vary the argument in support of the ground in any significant or substantive way to what was put in SZUDI.
Plainly, the approach taken by Judge Driver on this issue was endorsed by the Federal Court. The reasons given in SZUDI (Federal Court), a judgment binding on this Court, provide the self-evident answer to the application to add the proposed ground three to the application. Leave to amend the application to include the proposed ground three is refused.
Conclusion
In all, the applicant’s grounds (that is, grounds one, two and four to seven) and submissions do not reveal jurisdictional error in the Tribunal’s decision. Absent such error, the application is to be dismissed. I will make the appropriate order.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 20 July 2016
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