SZUHX v Minister for Immigration

[2016] FCCA 2169

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2169

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.425 of the Migration Act 1958 and failed to consider all the evidence.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 91R, 425, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
ALC15 v Minister for Immigration and Border Protection [2016] FCA 730

Applicant: SZUHX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1238 of 2014

Judgment of: Judge Cameron

Hearing date: 11 August 2016

Date of Last Submission: 11 August 2016

Delivered at: Sydney

Delivered on: 11 August 2016

REPRESENTATION

Counsel for the Applicant: Mr N. Poynder

Solicitors for the Applicant: York Immigration Services Australia

Counsel for the First Respondent: Mr M.P Cleary

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent, reference 1316234, dated 8 April 2014.

2. A writ of mandamus issue directing the second respondent to reconsider and determine the applicant’s application for review dated 30 October 2013 according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the amount of $6,646.00.

4. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1238 of 2014

SZUHX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Iran who arrived in Australia most recently on 22 January 2011. On 26 February 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Iran because of his religious beliefs. On 27 September 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

BACKGROUND FACTS

Proceedings before the delegate

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant relevantly made the following claims in his protection visa application and during his interview with the Minister’s delegate on 10 September 2013:

   a)he had been brought up in the Muslim faith in Iran;

   b)he came to Australia in 2006 on a work and holiday visa.  He departed in 2010 and returned in January 2011 on a student visa;

   c)in January 2012 he met an Iranian convert (“Mr D”) who talked to him about Christianity and invited him to attend the Lighthouse Baptist Church.  He began attending the church in February 2012;

   d)he attended Bible study nearly every week, proselytised and took part in other church-related activities;   

   e)in Iran, Muslims who converted to another religion were regarded as apostates and condemned to death; 

   f)he feared the Iranian government and the Basij.  He also feared “plainclothes forces” who were supported by Islamic groups and felt that they had the right to take the life of converts;  

   g)despite having been “saved” in March 2012 and baptised in August [2012], he did not lodge a protection visa application until February 2013 because he was on a student visa (valid to 15 March 2013) and was not in danger; and

   h)he had told his parents about his conversion to Christianity.

2. In support of his application, the applicant provided the department with statements of support from various members of the Lighthouse Baptist Church, all of whom attested to the genuineness of his conversion.  Amongst those was a statement from Mr D, who relevantly indicated that he had known the applicant since February 2012 when the latter began visiting the church.

Proceedings before the Tribunal

1. As summarised by the Tribunal in its decision record, the applicant relevantly made the following additional claims during his Tribunal hearing on 3 April 2014:

   a)when he first arrived in Australia in 2006 he still considered himself to be a devout practising Muslim;

   b)before entering the Lighthouse Baptist Church in Australia in February 2012, he had never entered a church anywhere;

   c)he met Mr D about a month before he first started attending the church.  They stayed in touch afterwards.  Later, Mr D invited the applicant to go to church with him as he had known that the applicant was feeling stressed.  The applicant knew at the time that converts in Iran were at risk but had not been thinking about the consequences when he agreed to accompany Mr D;

   d)Mr D had been granted a protection visa some time ago on the basis of his own conversion from Islam to Christianity;

   e)the applicant told Mr D that he would explain “the details” of their past to the Tribunal; hence, Mr D did not mention in his letter of support that he had invited and brought the applicant to church;

   f)his mother was the only person in Iran who was aware of his conversion; and

   g)it was only very slowly that he realised that the risk to him in Iran was serious.

2. The Tribunal also took evidence from the minister of the Lighthouse Baptist Church.   

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal accepted that the applicant had been attending the Lighthouse Baptist Church since February 2012, was baptised in August 2012 and had knowledge of the Bible consistent with having converted to Christianity.  It also accepted that he was perceived by his minister, and the individuals who wrote letters of support on his behalf, to be a genuine convert to Christianity.  However, the Tribunal was not satisfied that the applicant had genuinely converted to Christianity or regarded himself as Christian because:    

   i)despite having been a practising Muslim when he arrived in Australia some six years earlier, the applicant claimed that he was “saved” within four weeks of visiting a church for the first time in his life.  The Tribunal was not persuaded that the applicant would have arrived at this point so rapidly, given that he was a person with previously firm religious beliefs in a different faith who knew nothing about Christianity, had been in Australia for some six years without showing any interest in it and did not speak English fluently.  In the Tribunal’s view, it was reasonable to infer that the applicant had had some motivation for attending church other than the relief of stress;

   ii)the applicant was brought to the Lighthouse Baptist Church by an individual who had previously been found to have a well-founded fear of being persecuted in Iran on the basis of his conversion from Islam to Christianity and who was granted a protection visa in Australia as a result.  The Tribunal was satisfied that at the time the applicant commenced attending church, he was aware that doing so would give him a basis for a protection visa application;

   iii)as a way of explaining why he chose to go to the church initially, the applicant claimed that it was only slowly that people made him realise that the risk to him in Iran was serious.  The Tribunal did not consider this claim plausible at all.  The Tribunal was satisfied that at the time the applicant first went to the Lighthouse Baptist Church, he was conscious that there were serious risks in Iran for converting to Christianity; and

   iv)the applicant was baptised in August 2012 but only applied for a protection visa on 26 February 2013, his student visa being due to expire less than three weeks later.  The applicant did not seek protection at the earliest opportunity and the Tribunal considered from his sanguine approach in doing so that he did not feel any urgency on this point.  The Tribunal found that the delay was more consistent with wishing to build a profile as a Christian;

   b)in relation to the applicant’s activities in Australia associated with the Lighthouse Baptist Church, the Tribunal was not satisfied that the applicant had engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded this conduct pursuant to s.91R(3) of the Act as it stood at the time;

   c)as the Tribunal was not satisfied that the applicant regarded himself as a Christian, it found that he would not attend church or participate in any religious activities in Iran relating to Christianity; and

   d)the applicant claimed that his mother was the only person in Iran who knew of his conversion.  However, as the Tribunal did not accept that the applicant had genuinely converted to Christianity, it was not satisfied that he had told his mother that he had.  In light of this, and given that the applicant did not claim that anyone in Iran had become inadvertently aware of his religious activities in Australia, the Tribunal was not satisfied that the applicant would be perceived in Iran to be a Christian convert.

PROCEEDINGS IN THIS COURT

1. The applicant made the following allegations in his further amended application:

   1.… [Not pressed]

   2.The Tribunal failed to comply with its obligations under s.425(1) of the Act to provide the applicant with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   Particulars

   (a)The Tribunal in the hearing (pp 22-23 of the transcript) misled the applicant by accepting that – at the time the applicant joined the Christian church – he was not aware that the person who introduced him to the church, [Mr D], had previously been granted a protection visa on the basis that he had converted from Islam to Christianity.

   (b)The Tribunal subsequently (paragraphs 54-57 of the decision) found that the applicant was not a genuine convert to Christianity, in part, because – at the time he joined the Christian church – the applicant knew that [Mr D] had previously been granted a protection visa on the basis that he had converted from Islam to Christianity.

   (c)The Tribunal thereby deprived the applicant of the opportunity to give evidence and present arguments in relation to the issue of whether – at the time he joined the Christian church – he was aware that [Mr D] had previously been granted a protection visa on the basis that he had converted from Islam to Christianity.

   3.The Tribunal (paragraph 58 of the decision) failed to have regard to the applicant’s explanation for the delay in applying for a protection visa; namely, that he held a valid student visa and he was not therefore in danger (e.g paragraph 15 of the decision), and it thereby failed to perform the statutory task imposed on it by s.414(1) of the Act to review the delegate’s decision.

Ground 2

1. In para.55 of its decision the Tribunal said:

   Secondly, he was brought to the church by an individual who had previously been found to have a well-founded fear of being persecuted in Iran on the basis of his conversion from Islam to Christianity, and who was granted a protection visa in Australia as a result.  I am satisfied that the applicant was aware of that fact at the time he first accompanied this man to the church.  The applicant had a temporary visa that was due to expire the following year.  In other words at the time he commenced attending church he was aware that doing so would give him a basis for a protection visa application.

2. The applicant relied on the following exchange at the Tribunal’s hearing recorded in the transcript of that hearing:

   APPLICANT: … And when I was first saw him and he talked to me, we didn’t talk about the persecution; we didn’t talk about the torture.  He talked about the love; he shared the gospel with me.

   TRIBUNAL:       But he knew … he got a protection visa, because of the …

   APPLICANT: I didn’t know that.

   TRIBUNAL:       No, but he knew.

   APPLICANT: He knew that.

   TRIBUNAL:       So he knew that by encouraging you to convert, he was potentially putting you in danger if you went back home.

   APPLICANT: He didn’t encourage me to convert.  He was, I don’t know how to explain it, he was trying to show me who is Jesus Christ.  He was trying to tell me “I got a way for you.  I’m going to show that way; you choose whatever you want.”  Because there is no any forcing in Christianity.  It’s a peaceful religion.  That was amazing for me.  Because …

   TRIBUNAL:       But do you think he was not honest with you? I mean …

   APPLICANT: I think he was honest.

   TRIBUNAL:       Well he didn’t tell you that by converting  …

   APPLICANT: That was his life; that was his life.  Me thankful, because he gave me … and he said to me that, “You want to choose it, choose it.  You get the decision.”

3. In para.30 of his written submissions the applicant argued in this connection :

   Prior to the hearing the applicant was not “on notice” that his knowledge of [Mr D’s] protection visa was a live issue; it had not been referred to in the delegate’s decision nor identified by the Tribunal as an issue that was likely to be dispositive or determinative of the review: … In the exchange on this issue during the hearing the Tribunal accepted that the applicant didn’t know that [Mr D] had been granted a protection visa on the basis of his conversion to Christianity; indeed, it diverted the conversation to suggest that [Mr D] had been dishonest in his failure to tell the applicant about his protection visa.  As such, the Tribunal can be taken to have induced a belief that it accepted the applicant did not know of [Mr D’s] protection visa: ...  Yet in its decision the Tribunal placed considerable weight on its conclusion that the applicant did know of [Mr D’s] protection visa at the time that he accompanied him to the Church.  By failing to raise this with the applicant at the hearing and in fact suggesting the opposite, the Tribunal deprived the applicant of the opportunity to persuade it that he did not know of [Mr D’s] protection visa. As such, the applicant was thereby deprived of a fair hearing in accordance with s 425 of the Act:… (citations omitted)

4. In meeting the applicant’s allegation of a breach of s.425 of the Act, the Minister submitted that the relevant issue of which the applicant had to be aware at the Tribunal’s hearing concerned the genuineness of his claim to have converted to Christianity. However, such a characterisation of the matter in issue is too general and abstract. Here, as in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, a principal factual claim depended on a number of other matters which, because of their importance to the resolution of that principal factual claim, were issues in their own right.

5. Relevantly, in this case, one of those matters or issues was whether the applicant knew at the time he first went to the Lighthouse Baptist Church that, if he converted to Christianity, he would acquire a basis for making a protection visa application.  That this was a significant consideration can be seen by the fact that one of the Tribunal’s four reasons for rejecting the applicant’s claim to have converted to Christianity was based on it (see [8(a)(i)-(iv)] above).  The respondents’ submission that relevantly the only real issue was the credibility of the claim of conversion does not succeed because the Tribunal did not treat that claim as a single issue but determined it by reference to the four considerations to which I have referred. 

6. The applicant’s state of knowledge when he first went to the Lighthouse Baptist Church was not just a question of fact, as was the case for the matter discussed in ALC15 v Minister for Immigration and Border Protection [2016] FCA 730 at [24] to [41]. The boundary between a fact and an issue depends on the circumstances of each particular case but I think it would be difficult to characterise an applicant’s motivation for taking action which might arguably expose him or her to persecution as only a question of fact.

7. In this case, the question was whether the applicant went to the Lighthouse Baptist Church for the reasons he gave or to acquire the basis for a protection visa. As noted already, the Tribunal’s finding on that question, that the applicant’s motives were tainted from the start, was an important part of its reasons for its decision that it did not believe the applicant’s claim to have genuinely converted to Christianity. Consequently, it was an “issue” for the purposes of s.425 of the Act. Because the Tribunal did not give the applicant an opportunity to address that issue it breached s.425 of the Act.

8. I should also say that I do not think that it mattered whether the transcript passage relied on by the applicant showed the Tribunal misleading the applicant, as he alleged.  The substantive question was whether the Tribunal had failed to draw the applicant’s attention to an issue which played a determinative role in the review.

Ground 3

1. Subject to the comments which follow, I agree with and adopt the Minister’s written submissions in connection with the third pleaded ground of review: 

   40.This ground of review must be rejected. At para [15] of her decision the Tribunal Member specifically referred to the applicant’s evidence as to his explanation for the delay in not lodging a protection visa application until 26 February 2013. In particular, the Tribunal Member noted the applicant’s evidence of his explanation for this delay in the following terms:

   He said he had not lodged a protection visa application until 26 February 2013, despite having been “saved” in March 2012 and baptised in August, because having a student Visa (valid to 15 March 2013) he was not in danger.

   41.At para [58] the Tribunal Member found the delay was more consistent with wishing to build a profile as a Christian then with genuinely seeking protection. This finding made by the Tribunal Member was a factual finding that was open to the Tribunal Member to make on the evidence before her. The applicant’s submission that the Tribunal Member failed to consider the applicant’s explanation for his delay in lodging his protection visa must be rejected.

1. In para.58 of its reasons, the Tribunal said:

   Fourthly, the applicant was baptised in August 2012 but only applied for the protection visa on 26 February 2013, his student visa being due to expire less than three weeks later (15 March 2013).  He did not seek protection at the earliest opportunity and I consider from his sanguine approach to doing so that he did not feel any urgency on this point.  The delay is more consistent with wishing to build a profile as a Christian.

2. I have particular regard to the final sentence of that paragraph where the Tribunal described the delay in the applicant’s lodgement of his visa applicant as “more consistent” with wishing to build a profile as a Christian.  The question arises: that explanation for the delay is more consistent with profile building than with what other explanation? It must be the applicant’s own explanation that he did not feel he needed to make a protection visa application because his student visa had not expired. 

3. I do not consider that the Tribunal failed to have regard to the material to which the applicant has referred. 

CONCLUSION

1. Jurisdictional error on the part of the Tribunal having been demonstrated, its decision will be set aside and the matter remitted to be determined according to law.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 30 August 2016