SZUOI v Minister For Immigration and Anor (No.2)
[2015] FCCA 2183
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUOI v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2015] FCCA 2183 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of religious persecution in Egypt – applicant’s conversion from Islam to Christianity not accepted as genuine – whether the Tribunal’s decision was unreasonable or whether the Tribunal misconstrued the applicant’s claims considered. |
| Legislation: Migration Act 1958 (Cth), s.91R |
| Minister for ImmigrationvEshetu (1999) 197 CLR 611 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZWPDvMinister for Immigration [2006] FCA 1095 SZGUWvMinister for Immigration [2008] FCA 91; (2009) 108 ALD 108 |
| Applicant: | SZUOI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1715 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 26 May 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1715 of 2014
| SZUOI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 26 May 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Egypt and had made claims of religious persecution. The applicant is the brother of applicant SZUOJ[1] and had made essentially the same claims. The cases were dealt with separately by the Tribunal (by the same member) and separate applications were made to this Court. The two applicants had common representation and I heard the cases consecutively on the same day.
[1] SZUOJ v Minister for Immigration & Anor (No.2) [2015] FCCA 2296
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Egypt, who applied for a protection visa on 7 January 2013[2]. The applicant claimed to fear persecution on return to Egypt for reason of his conversion to Christianity. The applicant’s claims for protection were set out in a statement sent to the Minister’s delegate by the applicant’s representative[3]. The applicant’s statement detailed his background as a practising Muslim, his contact with Christian friends in the UAE and Qatar, his initial curiosity with Christianity, his travel to Malaysia to visit his brother, his first experience of Christianity and his arrival in Australia.
[2] Court Book (CB) 1-28
[3] CB 49-51
Upon arrival in Australia, the applicant claimed to have been introduced through a friend to a Coptic Orthodox church and then over the next year, to have visited other churches in Sydney. The applicant claimed then to have been introduced to the Hillsong church, following which he obtained a mentor, who welcomed him and encouraged him to ask questions about Christianity. He also described his increasing commitment to Christianity including engaging in volunteer activities with the church, and eventually being baptised on 31 March 2013.
The applicant described his extended family as very religious, although his parents were open minded. He did not have to pray five times a day, but Friday prayers were a “must”. He came to know a little about Christianity through Christian friends as he was growing up in the UAE and Qatar, but did not question Islam for fear of punishment. He started asking questions about Christianity in 2007. What attracted him was the “love, passion, kindness and forgiveness of Jesus Christ”.
The applicant visited Malaysia to see his brother and during that visit the brother took him to church. He was impressed by the atmosphere, the people and the mood. When he returned home he kept his ideas about Christianity to himself.
The applicant came to Australia in January 2010 to study aviation. There he met a person called Miller Mesha who took him and his brother to St Mark’s Coptic church at Arncliffe in March 2011. Like his brother, he did not feel welcome there. Nor did he feel welcome in other churches he visited although he continued his research into Christianity and the life of Jesus.
The applicant’s brother introduced him to the song that drew both of them to Hillsong church. Thereafter his experiences mirrored those of his brother. They hosted “connect” groups and he completed the Discovering Christianity course. He described telling his mentor that he wanted to be saved as a “huge step”, before being baptised with his brother on 31 March 2013.
The delegate’s decision
The applicant’s representative provided documents to the delegate[4] including a certificate of achievement for the Discovery Course at Hillsong church, and a certificate of baptism.
[4] CB 52-71
Both applicants were rejected after interviews with the same delegate on 25 July 2013[5]. The delegate did not believe that either brother had genuinely embraced Christianity.
[5] SZUOI at CB 73-98
The Tribunal hearings
On 20 August 2013, the applicant applied to the Tribunal for review of the delegate’s decision[6]. The Tribunal invited the applicant to appear at a hearing[7], which was held on 19 February 2014. The Tribunal, at the request of the applicant’s representative, who was also representing the applicant’s brother in his review, arranged for the hearing of each of the brother’s applications to be on the same day[8]. The Tribunal heard evidence by telephone from Allen Yam, a pastor with the Hillsong church, and David Luchwitz, also from the Hillsong church. The applicant and his brother gave evidence separately, but each agreed that the evidence of each be taken into account in relation to the application of the other[9].
[6] CB 101-105
[7] CB 110-111
[8] CB 109
[9] CB 143-144 at [6]
Transcripts of the Tribunal hearing are annexed to the affidavits of Penelope Pandora Pritchard made on 12 February 2015[10].
[10] T followed by the page number
As relevant to his grounds of review in this Court, the applicant gave evidence that:
a)he grew up with a terror of questioning Islam[11];
b)he did not take “more active” steps to find a church where he could learn about Christianity because before he could commit to a church he had to detach himself from Islam[12].
[11] T 39-40
[12] T 45
The Tribunal also explored his adoption of Christianity through Hillsong[13].
[13] T 46-49
The Tribunal decision
The Tribunal decisions in both cases were made by the same Tribunal member on 26 May 2014. The issue in both was credibility. Despite accepting the applicant’s claims to have been involved in the Hillsong church since his arrival in Australia, and to have been baptised in the Hillsong church[14], the Tribunal found that the applicant was not a genuine convert to Christianity, as he had claimed, and that his involvement in and relationship with the Hillsong church was “contrived … in order to establish claims to protection”[15]. Consequently, the Tribunal was not satisfied that the applicant would seek to practise Christianity on return to Egypt, and found that he would therefore not be at risk of suffering persecution for reason of his religion.
[14] CB 153 at[67]-[68]
[15] CB 152-153 at [66]
The Tribunal found the applicant’s claims about the process through which he had moved from Islam to Christianity “most problematic”, with aspects of his evidence “clearly embellished”, whilst others were “internally illogical and inconsistent”[16]. The Tribunal’s concerns as to the applicant’s conversion to Christianity in Australia were also based upon the timing of his protection visa application, and the applicant’s evidence that he had been discontented with Islam since at least 2007. In particular, the Tribunal noted that the applicant did not make any serious engagement with a Christian church until June 2012, two and a half years after arriving in Australia[17].
[16] CB 153 at [69]
[17] CB 153-154 at [70]
The Tribunal considered the applicant’s evidence in response to its concerns about the fact that he waited until March 2011, eight months after arriving in Australia, to make any attempt to approach a Christian church, and did not accept the applicant’s explanation that he was waiting until he felt more comfortable with a particular church before committing to it[18]. The Tribunal found the applicant’s explanations regarding his fears of departing from his Muslim faith as a reason for the delay in his approaching a Christian church to be inconsistent with his evidence that he had spoken to friends about Christianity, read extensively about the religion, and attended a church in Malaysia before coming to Australia[19].
[18] CB 154 at [71]-[72]
[19] CB 154 at [73]
The Tribunal accepted that the evidence given by Pastor Yam and Mr Luchwitz was given genuinely and sincerely, however the evidence given by the two witnesses did not persuade the Tribunal against the view that the applicant’s participation in, and activities with, the Hillsong church were not engaged in for genuine reasons[20]. The Tribunal formed the view that the applicant’s activities in Australia in respect of his attending and serving in Hillsong church and being baptised in that church, were engaged in for the sole purpose of establishing and strengthening his refugee claims. It disregarded the applicant’s conduct as was consequently required pursuant to s.91R(3) of the Migration Act[21].
[20] CB 155-156 at [77]-[81]
[21] CB 156-157 at [83]
The applicant draws attention in particular to the following findings by the Tribunal:
a)the Tribunal did not consider that the applicant gave a “coherent, plausible or credible account” of the path by which he claimed to have come to Christianity. It found that the timing of his coming to Jesus, shortly before he lodged his protection visa application in January 2013 to be suggestive of conduct engaged in to establish claims for protection. This was especially so given his claim to have been discontented with Islam for several years, and viewed the opportunity of coming to Australia as one to find out more about Christianity. The Tribunal noted however that he did not seriously engage with Christianity until June 2012[22];
b)the Tribunal did not consider the applicant’s sporadic visits to churches as a genuine attempt to explore or engage with Christianity reflective of a genuine interest in conversion. The Tribunal did not accept that he could have thought that he would reach a point of being comfortable enough to attend a church simply by reading information. It found implausible the suggestion that a person would decide that they wanted to become Christian through reading on the internet without finding a Christian congregation or having satisfying experiences of attending a church. In that context it did not accept that he was grappling with fears about doubting Islam, and was thus hesitant about attending Church in Australia[23];
c)the Tribunal considered that the evidence of David Luchwitz undermined the applicant’s claim that he knew enough about Christianity to know that he wanted to become a Christian[24];
d)the Tribunal concluded that the applicant’s conversion to Christianity was a very quick process, between June 2012 and April 2013[25]; and
e)the Tribunal concluded that the applicant’s commitment to Christianity was not genuine and rejected his claims[26].
[22] CB 153-4 at [70]
[23] CB 174 at [71]-[73]
[24] CB 154 at [74]
[25] CB 155 at [76]
[26] CB 156-7 at [81]-[85]
Related proceedings in respect of the applicant’s brother
As noted above, the applicant had travelled to Australia with his brother, who himself applied to the Department for the grant of a protection visa, on the basis of his religion. The applicant’s brother was unsuccessful in his application for a visa, having been refused his application by the Minister’s delegate, which decision was affirmed on review to the Tribunal. The applicant’s brother has also commenced proceedings in this Court for judicial review of the Tribunal’s decision to affirm the refusal of his protection visa application.
Whilst there are some factual similarities between the applicant’s case and that of his brother, each was the subject of a separate decision of the Tribunal, and each was, appropriately, the subject of separate proceedings before this Court.
The judicial review application
These proceedings began with a show cause application filed on 23 June 2014. Following the commencement of proceedings and the dismissal of that application on 23 July 2014 due to the applicant’s failure to appear at the first court date, I ordered the reinstatement of the proceedings on 20 August 2014. On 19 January 2015, the applicant filed an amended application raising two grounds of review. The applicant now relies upon a further amended application filed in court by leave on 12 August 2015. There are two particularised grounds in that application:
1. The Tribunal’s decision was affected by unreasonableness and arbitrariness.
Particulars
At paragraph 72 of its reasons for decision the Tribunal imposed its own opinion as to how people should go about exploring a different religion, without consideration of the possibility that others may do so in a different way. The Tribunal approached the applicant’s claims about his spiritual development on the basis of its own preconceptions about how people should act. The Tribunal’s approach was arbitrary and based on whim and personal presumptions in the absence of reason or evidence.
2. The Tribunal misconstrued the claims made by the applicant and failed to consider them in context.
Particulars
The Tribunal’s statements in the first five lines of paragraph 72 of its reasons failed to accurately represent the claims made by the applicant in their context, which were that he read widely and did attend churches, but did not feel comfortable in one until he went to Hillsong. In addition, he felt a terror based on being taught from a young age that those who leave Islam are possessed by a devil and may be stoned to death upon return to Egypt.
In addition to the Court Book filed on 27 October 2014, I received as evidence the affidavit of Ms Pritchard, referred to at [12] above, to which is annexed a transcript of the hearing conducted by the Tribunal on 19 February 2014.
The applicant and the Minister made written as well as oral submissions.
Consideration
Applicant’s contentions
The applicant contends that the Tribunal fell into jurisdictional error in two respects.
Arbitrary and unreasonable decision making
Just as there is an arguable distinction between irrationality and unreasonableness, in that not every rational decision is reasonable[27], there is an arguable distinction between an unreasonable decision and one that is arbitrary, albeit that they are of the same order[28] and may overlap. If a decision can truly be said to be “arbitrary” the decision maker will not have attained the necessary degree of satisfaction to enliven his or her statutory power[29]. Thus it has been held that to impose an arbitrary standard of religious knowledge is to err, although it may not be easy to discern legitimate questioning about knowledge from imposing such a standard[30].
[27] Minister for ImmigrationvLi (2013) 249 CLR 332
[28] Minister for ImmigrationvSZMDS (2010) 240 CLR 611 at [130]
[29] see Minister for ImmigrationvEshetu (1999) 197 CLR 611 at [128]-[145] and the authorities there cited
[30] see e.g. Minister for Immigration vSZLSP (2010) 187 FCR 362 at [37]
In the applicant’s submission, imposing an arbitrary standard of knowledge of religious doctrine is of the same order as imposing an arbitrary standard on human behaviour or thought; that is, a standard based on personal whim or opinion without a basis in evidence or experience.
In this case the following Tribunal findings are said to be arbitrary and/or unreasonable with the applicant’s commentary in italics:
a)first, the Tribunal did not accept that, at [72][31] that the applicant could have thought that he would reach a point of being comfortable enough to attend a church simply by reading information on the internet:
[31] CB 154
There was no evidence that the Tribunal was experienced in or adapt at reading the thoughts of a person from another culture and another religious tradition. This was a finding based on nothing more than whim or opinion, and therefore arbitrary.
b)secondly, the Tribunal continued, at [72][32], “… or that he would learn enough about Christianity by reading to feel that he could feel that he could abandon Islam and that he would feel comfortable to attend a church.”
Apart from that not being his claim, which is addressed below, this finding makes assumptions about what is going through the mind of another person. Those assumptions are made, as in (a) above, entirely without evidence, and are therefore arbitrary.
c)thirdly, also at [72][33] was the Tribunal’s finding that it was implausible that a person would decide they wanted to be a Christian, then go through a process of reading information on the internet until they reached a decision to cast off Islam and adopt Christianity, without finding a church congregation or having a satisfying experience of attending church.
There is a contradiction here – how does a person become part of a Christian community without becoming Christian? Even if that is possible why is it not open to a person, based on his or her personality and intellect, to choose a system of belief after study? Once again, the Tribunal’s finding is based on whim unsupported by evidence.
[32] CB 154
[33] CB 154
Errors in considering claims
In NABE v Minister for Immigration(No 2)[34] the Full Federal Court held that:
…if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
[34] (2004) 144 FCR 1 at [63]
In addition, the Tribunal must consider the claims that it does accept cumulatively and in their context[35].
[35] SZGUWvMinister for Immigration [2008] FCA 91 (Jacobson J); SZGUWvMinister for Immigration (2009) 108 ALD 108, MZWPDv Minister for Immigration [2006] FCA 1095 at [69]
The Tribunal’s findings noted above did not accurately represent the applicant’s claims, which were that he read as widely as he could and did attend churches, but did not feel comfortable in one until he went to Hillsong[36]. In addition, he felt a terror based on being taught from a young age that those who leave Islam are possessed by a devil[37] and may be stoned to death upon return to Egypt[38].
[36] see the applicant’s statement at CB 49-51 and T 43
[37] T 39
[38] T 43
Minister’s contentions
The first ground appears to advance a species of the error recognised by Gray J in Wang v Minister for Immigration[39], in which the Tribunal was found to have required an applicant who was a professed adherent to the Christian faith to be possessed of a specific level of doctrinal knowledge. The Minister concedes that the Tribunal is not to adopt the role of an “arbiter of religious doctrine” when considering whether or not a person has a well-founded fear of persecution for reason of the person’s religion. As the Full Federal Court stated in WALT v Minister for Immigration[40], at [28], adopting what Gray J had said in Wang:
Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
[39] (2000) 105 FCR 548
[40] [2007] FCAFC 2
The Minister submits that, to the extent that the applicant is attempting to advance an argument along similar lines to that in Wang, it ought to be rejected. The Tribunal did not purport to apply a particular standard to the applicant in assessing his knowledge of, or understanding about, Christianity. Rather, the Tribunal, appropriately, questioned the applicant about the path of his conversion from Islam to Christianity in order to determine whether it was satisfied of the genuineness of that conversion. There was no error in this approach. The authorities state that jurisdictional error will not necessarily arise from the Tribunal questioning an applicant about his or her beliefs on matters which that particular religion teaches[41] or legitimately exploring what that person knows about the religion “in order to assess the genuineness of the claim”[42].
[41] WALT at [29]
[42] SBCC v Minister for Immigration [2006] FCAFC 129 at [47]
Here, however, the Tribunal limited itself to questioning the applicant about his path to conversion[43]. The Tribunal did not question the applicant about his current knowledge of Christianity for the purpose of discerning the genuineness of his faith. To that end, the applicant’s reliance, at [13] of the applicant’s outline of submissions, on the decision of the Federal Court in Minister for Immigration v SZLSP[44], is said to be misplaced. The Tribunal found that the applicant’s own evidence about the process he went through in reaching the decision to convert was “most problematic”[45], and that it was not satisfied that the applicant had provided a “coherent, plausible or credible account of the path by which he claims to have come to Christianity”[46].
[43] CB 146 at [20]-[25]
[44] (2010) 187 FCR 362
[45] CB 153 at [69]
[46] CB 153 at [70]
Fundamentally, the Tribunal did not accept that it took the applicant two years after arriving in Australia, and accepting his claims of prior practice of, and interest in, Christianity, to locate a church that he felt comfortable with[47]. The Tribunal heard the applicant’s explanations for the delay, but was not satisfied with them[48]. The Tribunal came to the conclusion, which was available to it, that rather than a long drawn out process, as claimed, the applicant’s take up of Christianity in Australia happened over a period of a few months before and after his protection visa application was lodged[49].
[47] CB 154 at [72]
[48] CB 154 at [71]
[49] CB 155 at [76]
The Minister contends that there was no error in the Tribunal’s approach. It was a matter for the Tribunal to satisfy itself that the applicant’s claims to have converted to Christianity were genuine. Further, there is no apparent jurisprudential link between the imposition of an arbitrary standard of religious doctrine, as referred to in the line of cases cited, and unreasonable or arbitrary decision-making as referred to in Minister for Immigration v Li[50]. The Tribunal’s fact-finding, and its process of reasoning, were far from arbitrary or unreasonable. The Tribunal gave clear, and compelling justification for its conclusion that it was not satisfied of the genuineness of the applicant’s conversion.
[50] (2013) 249 CLR 332
Second ground
In his second ground, the applicant asserts that the Tribunal misconstrued the applicant’s claims and failed to consider them “in context”, in its findings[51]. The applicant asserts that in making this finding, the Tribunal misconstrued the applicant’s claims that he “read widely and did attend churches, but did not feel comfortable in one until he went to Hillsong” and that he “felt a terror” about his abandonment of Islam.
[51] CB 154 at [72]
The Minister submits that the Tribunal did not misconstrue, or misunderstand, the applicant’s claims, and that the applicant is reading the Tribunal’s decision record, especially at [72], with an eye “keenly attuned to the perception of error”[52]. The Tribunal’s findings, including at [72], were open to it.
[52] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 271-272
Paragraph [72] of the decision, read as a whole, and in the context of its other findings in relation to the applicant’s claims to have converted to Christianity, which are set out at [71], [73]-[76] and [82]-[85], reveals no error. The Tribunal’s understanding of the applicant’s claims is evidenced in its detailed recording of those claims, which were:
a)the applicant claimed to have attended at St Mary’s, St Andrew’s and St James’ churches in Sydney, but that he felt there was something missing and did not “feel comfortable or at home”[53];
b)the applicant claimed to have read about Christianity online but felt no connection to the churches he had attended, and that he did not have enough information, but was still “searching and learning about Christianity”[54];
c)the applicant claimed that “he did not want to go to a church until he felt that he had studied enough and learned enough about Christianity”[55]; and
d)the applicant gave evidence that “when he went to Hillsong he already knew enough to know that he wanted to be a Christian”[56].
[53] CB 146 at [21]
[54] CB 146 at [23]
[55] CB 146 at [25]
[56] CB 154 at [74]
The Minister submits that the Tribunal demonstrated a clear understanding of the applicant’s claim, and no misunderstanding or misconstruction of them is evidenced in the expression of its findings at [72]. The applicant’s contention, at [18] of his outline of submissions, that the Tribunal’s findings at [72] did not “represent” the applicant’s claims cannot be made out, in particular by reference to the applicant’s evidence given before the Tribunal, that he was reading online about Christianity but felt no connection to the churches that he went to, and that he felt he could not become a true Christian while he was still learning, and he had to leave Islam first[57].
[57] CB 146 at [23]
Resolution
The applicant’s first ground of challenge to the Tribunal decision is directed at [72] of the Tribunal’s decision record where the Tribunal said[58]:
I do not accept the applicant’s explanations for this long delay. I do not accept that the applicant could have thought that he would reach a point of feeling comfortable enough to attend a church simply by reading information on the internet; or that he would learn enough about Christianity by reading to feel that he could abandon Islam and that he would then feel comfortable to attend a church. While every person who changes their faith might have a different experience, I find it quite implausible that a person would decide that they wanted to be a Christian, then go through a process of reading information on the internet until they reached a decision to cast off their old faith and adopt Christianity, without finding a church congregation, or having a satisfying experience of attending a church.
[58] CB 154
As I observed in SZUOJ at [43], while the Tribunal is entitled to test credibility, it is not entitled to set itself up as the arbiter of religious doctrine. By close analogy, neither can the Tribunal set itself up as the arbiter of the path to religious conversion. In my opinion, and in contrast to the Tribunal’s decision in SZUOJ, the Tribunal has fallen into the trap of arbitrarily selecting a “plausible” path to conversion. In essence, the Tribunal refused to accept that a path to conversion could be a cerebral one of research or study, divorced from the society of other members of the desired faith. The Minister’s submissions, with respect, do not grapple with this problematic element of the Tribunal’s reasons; they focus, rather, on the safer ground of the Tribunal’s analysis in SZUOJ. There is no “correct” path to religious conversion. A solitary or cerebral path is no less correct or plausible than a path embarked upon in a religious community. I agree with the applicant’s submission that the Tribunal has set itself up as the arbiter of the correct path to religious conversion and that the Tribunal decision was, in a relevant legal sense, arbitrary[59].
[59] See SZLSP at [8], [18], [30], [41] and [50]
I find that the first ground has been established.
As to the second ground, the challenge is also to [72] of the Tribunal’s reasons. Significantly, this applicant’s claims had an additional element to those of his brother in that he expressly claimed to fear the consequences of apostasy[60]. The fear of consequences of apostasy was referred to explicitly by the applicant in his statement accompanying his protection visa application[61]. Relevantly, the applicant wrote:
I was always naturally curious and had so many questions about Islam but what kept that from showing is that I knew who questions Islam can be prosecuted and treated as a converter or kicked out of Islam and the punishment of that is getting hanged to death.
[60] SZUOJ claimed to have had some concern about abandoning Islam but claimed to have overcome his fears while living in Malaysia – see SZUOJ at [49]-[50]
[61] CB 49
This applicant’s solitary exploration of Christianity prior to his involvement with the Hillsong church needed to be viewed in the context of that fear of harm arising from the act of apostasy. The Tribunal acknowledged the claim at [12] of its reasons[62]. The issue was explored at the Tribunal hearing, as the Tribunal records at [25] of its reasons[63]:
I put to the applicant that, given the struggles he described, it was difficult to understand why it took him over two years to find a church where he felt comfortable; I could not understand why he had not sought to study within a church, which might have assisted him. He said that he was detaching himself from Islam and could not commit to a church. He did not feel comfortable or spiritual in any of the churches he went to. He did not want to go to a church until he felt that he had studied enough and learned enough about Christianity.
[62] CB 144
[63] CB 146
There was further discussion, which was recorded at [32] of the Tribunal’s reasons[64]:
The applicant added, in relation to his failure to [attend] church until June 2012, that he felt that for eighteen years he had been living a lie (Islam) and he had to investigate properly because he did not want to just jump to another religion in case he found himself living a lie again. When he arrived in Australia he felt that he had to understand the basics before he could go to church. I put to the applicant that my concern was that he did not appear to be actively engaged in learning about Christianity, or taking positive steps to inform himself about it. He said that in the back of his mind he was afraid of being persecuted; he was scared and had no idea what he was doing, so he did not want to “go public”.
[64] CB 147
In my opinion, the Tribunal’s reasons, while otherwise detailed and thoughtful, do not seriously engage with the applicant’s expressed fear of apostasy. The Tribunal’s fundamental concern was that there was an all too convenient coincidence in time between the applicant’s conversion at the Hillsong church and his claim for protection, which had followed a long period of apparent inactivity. However, it is eminently logical that a claim based on the fear of the consequences of apostasy would be made at around the same time as the act of apostasy. Likewise, the fear of the consequences of apostasy is a plausible explanation for the applicant’s solitary activities prior to engaging with the Hillsong church. The issue is touched upon at [73] in the Tribunal’s reasons where the Tribunal said[65]:
I do not accept his claim that because of his upbringing in the Muslim faith he was grappling with fears about doubting Islam and investigating Christianity, and so was hesitant about attending church in Australia. I consider his evidence about this issue to be inconsistent and contradictory. He claims to have asked questions of Christian friends, read extensively and attended church in Malaysia before coming to Australia, yet once he had had the opportunity he did not, in my view, take positive or meaningful steps to progress his knowledge of Christianity or to overcome his claimed fears for many years, indeed, until shortly before lodging his protection visa application.
[65] CB 154
Yet the Tribunal misconstrued the applicant’s claim as one based simply on claimed religious faith rather than on a fear of apostasy which is logically closely linked in time to the claim for protection[66].
[66] See SZGUW at [54]-[55]
I find that, in the case of this applicant, the second ground is also established.
Conclusion
The applicant has established that in both the claimed respects, the Tribunal decision is affected by jurisdictional error. He should therefore receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 September 2015
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