SZUOJ v Minister for Immigration (No 2)
[2015] FCCA 2296
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUOJ v MINISTER FOR IMMIGRATION & ANOR (No 2) | [2015] FCCA 2296 |
| 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 vSZLSP (2010) 187 FCR 362 MZWPD& Ors vMinister for Immigration [2006] FCA 1095 NABEv Minister for Immigration (No 2) (2004) 144 FCR 1 SBCC v Minister for Immigration [2006] FCAFC 129 SZGUW v Minister for Immigration [2008] FCA 91; (2009) 108 ALD 108; [2010] FCA 475 WALT v Minister for Immigration [2007] FCAFC 2 Wang v Minister for Immigration (2000) 105 FCR 548 |
| Applicant: | SZUOJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1716 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
The application as amended on 12 August 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1716 of 2014
| SZUOJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
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 SZUOI[1] who 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] SZUOI v Minister for Immigration & Anor (No 2) [2015] FCCA 2183
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. A statement detailing the applicant’s background was sent to the Minister’s delegate by the applicant’s representative[3].
[2] Court Book (CB) 1-30
[3] CB 49-52
The applicant comes from a liberal Muslim family and grew up in several countries in the Middle East. He was not expected to pray five times a day, but was expected to attend Friday prayers. As he matured he found himself feeling distant from Islam.
In 2007, the applicant travelled to Kuching in Malaysia where he studied engineering. There he had a Catholic girlfriend and went with her to church where he felt welcomed. He took his brother once. He said in his statement supporting his visa application [4]that he noticed that he was living his life as a Christian without realising.
[4] CB 50
The applicant discussed his experiences with his brother when he and his parents came to visit and was happy to hear that his brother had shared his interest and curiosity about Christianity. After his family left he went to church more frequently and eventually attended every Sunday. However, he feared venturing deeper into Christianity and converting.
After returning to Egypt for some time, the applicant followed his brother to Australia where they both studied aviation. His brother introduced him to an Egyptian Christian friend who, in March 2011 took him to a Coptic Church at Arncliffe. There he felt uncomfortable and unwelcomed.
Over the next year the applicant visited several churches in the Sydney city area which, he said, was a great spiritual experience, but he was not emotionally ready to embrace Christianity.
After several months the applicant heard a song produced by Hillsong church which he then researched. He went there and was welcomed. He enrolled in a Discovering Christianity course taught by a person named David Luchwitz who became his friend and mentor. He started hosting a “connect” group in his apartment in the city and was baptised on 31 March 2013.
The applicant’s representative provided other documents to the delegate[5] including a certificate of achievement for the Discovery Course at Hillsong church, and a certificate of baptism in the Hillsong church.
[5] CB 53-61
The delegate’s decision
Both applicants were rejected after interviews with the same delegate on 25 July 2013[6]. The delegate did not believe that either brother had genuinely embraced Christianity[7].
[6] SZUOJ’s decision is at CB 64-89
[7] SZUOJ at CB 90-95
The Tribunal hearings
On 20 August 2013, the applicant applied to the Tribunal for review of the delegate’s decision[8]. On 28 November 2013, the applicant’s representative contacted the Tribunal to request that it hear the applicant’s matter at the same time as the review application of the applicant’s brother[9]. The brothers’ applications were heard together on 19 February 2014, although each gave evidence separately, and each agreed that the evidence of one be taken into account in respect of the application of the other[10]. The Tribunal heard evidence by telephone from Allen Yam, a pastor with the Hillsong church, and David Luchwitz, also from the Hillsong church.
[8] CB 90-97
[9] CB 109
[10] CB 150-151at [6]
Transcripts are annexed to the affidavits of Penelope Pandora Pritchard made on 12 February 2015[11].
[11] hereafter “T” followed by the page number
The applicant gave evidence to the Tribunal that:
a)he asked his girlfriend to take him with her when she went to church in Malaysia. When he did start going to church it was something that felt right[12]; and
b)he did not go to religious education classes, although he did take communion one time. Nor did he talk to the priest. Leaving Islam felt blasphemous, although he no longer believed in Islam[13];
c)he did not attend church regularly for a long period after arriving in Australia because he was still a Muslim and detaching himself from Islam was a very hard thing to do, and it took him a great deal of time to do it[14].
[12] T 8
[13] T 7
[14] T 1 10-13
The presiding member put to the applicant her difficulties with his claims about his journey to conversion, which included the following:
a)she did not see how the process of his detaching from Islam hindered his investigation of Christianity[15];
b)the process of detaching from Islam would seem to involve deep knowledge of another religion[16];
c)she did not understand how he could even think of detaching from Islam without having had some formal church education[17]; and
d)rather than, as suggested during the applicant’s Departmental interview, detaching from Islam and adopting Christianity was a long, two year journey, it appeared to be a surprisingly short journey, from discovering Hillsong in June 2012 to being baptized on 31 March 2013[18].
[15] T 13
[16] T 14
[17] T 15
[18] T 24-25
The Tribunal’s decision
The Tribunal accepted that the applicant had attended the Hillsong church since June 2012, but that the evidence was not clear as to when he started to regularly attend the church[19]. The Tribunal also accepted that the applicant undertook the Discovery course through the Hillsong church, that the applicant had been baptised in March 2013, and that the applicant had volunteered with the church and hosted bible discussion groups in his home[20]. However, the Tribunal did not accept that the applicant’s conversion to Christianity was genuine, and it was not satisfied that the applicant would seek to practise Christianity on return to Egypt, and would therefore be at risk of suffering persecution for reason of his religion[21].
[19] CB 160 at [70]
[20] CB 161 at [71]
[21] CB 160 at [69]
Principally, the Tribunal did not accept the applicant to be a credible witness. The Tribunal found the applicant’s claims about the process through which he claimed to have moved from Islam to Christianity “most problematic”, with some aspects of his evidence “clearly embellished”, whilst others were “internally illogical and inconsistent”[22]. The Tribunal’s concerns as to the applicant’s conversion to Christianity in Australia arose in the context of contradictory statements made by the applicant, that whilst living in Malaysia between 2007 and 2009, he considered that he was living a “Christian life”, and had felt more Christian than Muslim, but that he also gave evidence that it had taken him two years after arriving in Australia to begin regular attendance at a church because he was still a Muslim. The Tribunal placed weight on Mr Luchwitz’s evidence that the applicant had not told him that he had attended church in Malaysia or that he had considered himself to be a Christian when he lived there[23].
[22] CB 161 at [72]
[23] CB 161 at [73]
The Tribunal therefore did not accept that the applicant had attended church in Malaysia as part of a discovery of, or commitment to, the Christian faith[24]. The Tribunal found that the applicant had made up or embellished his claims about the level of his involvement with the Christian church in Malaysia. The Tribunal further concluded that the applicant’s claim to have attended church in Malaysia, to have loved it, and to have lived a Christian life during that time was inconsistent with the applicant having taken two years to regularly attend a church in Australia[25]. The Tribunal found that the applicant did not make any serious attempt to further explore Christianity until two years after he arrived in Australia and it could not reconcile that delay with the applicant’s evidence about his spiritual journey towards Christianity. It concluded his claims about his spiritual journey were made up[26]. The Tribunal considered, and rejected, the applicant’s explanations for the time that it took him to become involved with a church in Australia[27].
[24] CB 161 at [73]
[25] CB 161-162 at [73]
[26] CB 162 at [75]
[27] CB 162-163 at [76]-[77]
The Tribunal found that the applicant’s account of having sought to disengage from Islam before committing to Christianity was disingenuous[28].
[28] CB 163 at [80]
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[29]. 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 required pursuant to s.91R(3) of the Migration Act[30].
[29] CB 164-165 at [81]-[85]
[30] CB 165 at [87]
In the present proceedings, the applicant draws attention to elements of detail in the Tribunal’s reasoning as follows:
a)it discussed[31] the claims about the applicant “living a Christian life” whilst in Malaysia, and noted his evidence at hearing that he was not practising Islam, and leaning more towards belief in Christianity. It contrasted this with his subsequent explanation[32] that he did not attend church regularly for two years after arriving in Australia because he was still a Muslim. Moreover, the Tribunal found it highly significant that the applicant did not tell David Luchwitz that he had attended church in Malaysia;
b)the Tribunal found the applicant’s failure to locate a church which he was prepared to attend regularly for two years after his arrival to be inconsistent with his questioning of and departure from Islam and his growing belief that Christianity was the “right” religion. In the Tribunal’s opinion this delay could not be reconciled with his evidence about his spiritual journey[33];
c)it found further that if the applicant did attend churches in Sydney, that did not represent a genuine attempt to explore or engage with Christianity[34];
d)it did not accept the applicant’s evidence that casting off Islam was slow and difficult. In the Tribunal’s view a person who had harboured significant doubts about their own religion and had engaged in a process of reading and spiritual exploration would have investigated other faiths, and not just Christianity. Further, it found his account of seeking to disengage with Islam to be illogical and implausible. This was partly because the Tribunal considered that disengaging from Islam was part of the same process as learning a new faith. The Tribunal did not accept that the applicant had acquired sufficient knowledge about Christianity by reading on the internet or being a part of a Christian community[35];
e)nor did the Tribunal accept that the applicant attended church in Malaysia as part of a process of conversion prior to his attendance at Hillsong in June 2012[36]; and
f)the Tribunal concluded, consistently with information put at hearing, that his conversion to Christianity was a very quick process, taken over the few months before his protection visa application was lodged[37].
[31] CB 161 at [73]
[32] at T10
[33] CB 162 at [75]
[34] CB 162 at [76]
[35] CB 162-3 at [77]
[36] CB 163 at [77]
[37] CB 163 at [78]-[79]
As already noted, the Tribunal considered the applicant’s description of the process by which he sought to disengage with Islam before committing to Christianity as disingenuous[38]. This was confirmed, in the Tribunal’s opinion by the evidence of the applicant’s witnesses, Pastor Yam and Mr Luchwitz.
[38] CB 163 [80]
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 Minister’s 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 a delegate of the Minister, which decision was affirmed on review to the Tribunal. SZUOI also commenced proceedings in this Court for judicial review of the Tribunal’s decision to affirm the refusal of his protection visa application.
The judicial review application
These proceedings began with a show cause application filed on 23 June 2014. 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 77 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 such claims in their totality.
Particulars
(a) The Tribunal’s finding (at CB 161 [73]) of inconsistency between the applicant’s statements of how he felt in Malaysia (i.e. more a Christian than a Moslem) and its statement of his explanation as to why he did not attend church regularly for two years after arriving in Australia (because he was still a Moslem), was made in the absence of consideration of the totality of his claims, to the effect that he was born into Islam, detaching himself from it was difficult, and in Malaysia he went to church with his girlfriend.
(b) The Tribunal said that it did not accept that the applicant attended church in Malaysia in the context of any kind of discovery of, commitment to or engagement in Christianity. The claim actually was that he accompanied his girlfriend to church because he was interested, and having attended church he felt attracted to it.
In addition to the court book filed on 27 October 2014, I received as evidence the affidavit of Penelope Pandora Pritchard made on 12 February 2015, 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[39], there is an arguable distinction between an unreasonable decision and one that is arbitrary, albeit that they are of the same order[40] 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[41]. 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[42].
[39] Minister for ImmigrationvLi (2013) 249 CLR 332
[40] Minister for Immigrationv SZMDS (2010) 240 CLR 611 at [130]
[41] see Minister for ImmigrationvEshetu (1999) 197 CLR 611 at [128]-[145] and the authorities there cited
[42] 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 (that is, a standard based on personal whim or opinion without a basis in evidence or experience) on human behaviour or thought.
The applicant contends that [77] of the Tribunal’s reasons is “riddled” with arbitrary and/or unreasonable findings. They are, with the applicant’s responses italicised:
a)That a person who had harboured significant doubts about their own religion and had engaged in a process of reading and spiritual exploration would have investigated other faiths, and not just Christianity.
The Tribunal suggested no reason why this should be so. It is an opinion based on nothing more than personal whim. It lacks any foundation in evidence or experience. It may thus be considered “arbitrary”. It may also be considered unreasonable in the sense that reasonable minds could not adopt that reasoning.
b)Disengaging from Islam was part of the same process as learning a new faith, and that one cannot make a decision to abandon Islam without a reasonable knowledge of a new faith.
There is no reason why that should be. Nor is there any reason why a person cannot abandon an old faith before or even without embracing a new faith. That too is an opinion based on nothing more than personal whim.
c)The Tribunal did not accept that the applicant had acquired sufficient knowledge about Christianity by reading on the internet to provide a sound basis for which to conclude that he wished to convert to Christianity before ever having attended a Christian church or being a part of a Christian community.
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 a whim unsupported by evidence.
Errors in considering claims
In NABEvMinister for Immigration (No 2)[43] the Full 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.
[43] (2004) 144 FCR 1 at [63]
In addition, the Tribunal must consider the claims that it does accept cumulatively and in their context[44].
[44] SZGUWv Minister for Immigration [2008] FCA 91 (Jacobson J); SZGUWv Minister for Immigration (2009) 108 ALD 108, MZWPD & Orsv Minister for Immigration [2006] FCA 1095 at [69]
Minister’s contentions
The Minister makes the following submissions in response to the grounds in the further amended application.
First ground
The applicant asserts that the Tribunal’s decision was affected by unreasonableness and arbitrariness for the reason that the Tribunal “imposed its own opinion as to how people should go about exploring a different religion” and that the Tribunal “approached the applicant’s claims about his spiritual development on the basis of its own preconceptions about how people should act”. The applicant asserts that the Tribunal’s approach was “based on whim and personal presumptions in the absence of reason or evidence”.
The first ground appears to advance a species of the error recognised by Gray J in Wang v Minister for Immigration[45], 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 accepts 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[46], 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.
[45] (2000) 105 FCR 548
[46] [2007] FCAFC 2 at [28]
To the extent that the applicant is attempting to advance an argument along similar lines to that in Wang, the Minister submits that 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[47] or legitimately exploring what that person knows about the religion “in order to assess the genuineness of the claim”[48].
[47] WALT at [29]
[48] 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[49]. 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 SZLSP 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”[50], 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”[51].
[49] CB 146 at [20]-[25]
[50] CB 153 at [69]
[51] CB 153 at [70]
Fundamentally, the Tribunal did not accept that it took the applicant two years after arriving in Australia to locate a church that he felt comfortable attending regularly, having regard to his evidence of having questioned and departed from the Islamic faith, and his growing belief that Christianity was the “right religion”[52]. The Tribunal questioned the applicant about the delay, but found the explanations given by the applicant to be “illogical and implausible”[53]. Further, the Tribunal was not satisfied that the applicant had provided a “persuasive account” of the path by which he arrived at the decision to become a Christian[54]. 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[55].
[52] CB 162 at [75]
[53] CB 162 at [77]
[54] CB 163 at [78]
[55] CB 163 at [79]
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 Li. 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.
In respect of the claimed “arbitrary” findings identified by the applicant in his outline of submissions, particular regard must be had to the way the applicant presented his case. The applicant’s claims and evidence had significant bearing on the findings made by the Tribunal as recorded at [77] of the decision record. For instance:
a)the applicant gave evidence, when questioned by the Tribunal as to why he felt he needed to abandon Islam and take up Christianity rather than just abandon Islam and have no religion, that “that is not who he is”[56]; and
b)the applicant’s claim was that he went to Hillsong when he “felt he had learned enough from the internet that he was confident enough to go to church”[57]. There was quite some attention given to the question of the level of the applicant’s knowledge of Christianity as to whether he had genuinely been researching and learning about Christianity prior to attending the Hillsong church, or whether his commitment to that learning was not as he claimed. There was nothing arbitrary about testing the applicant’s claims and making a finding adverse to the applicant for the purpose of determining the genuineness of the applicant’s conversion. This was the basis for the Tribunal’s finding at [78][58].
[56] CB 153 at [24]
[57] CB 153 at [23]
[58] CB 163
Second ground
In his second ground, the applicant asserts that the Tribunal misconstrued the applicant’s claims, and failed to consider such claims in their totality. In the Minister’s submission, the Tribunal did not misconstrue or misunderstand the applicant’s claims, as alleged, or at all, as set out below.
The Minister submits that the first particularised failing by the Tribunal, in relation to the Tribunal’s findings at [73], cannot be accepted. The Tribunal’s findings at [73] as to inconsistencies in the applicant’s claims to have practised a Christian life in Malaysia to the exclusion of Islam, but then to have delayed his involvement in Christian life in Australia because he was still a Muslim, were not made in the absence of consideration of the totality of the applicant’s claims. Specifically, the Tribunal was well aware of the applicant’s claim that he was finding it difficult in abandoning Islam; it rejected the claim as an explanation for the delay[59]. Further, the fact that the applicant went to church with his girlfriend in Malaysia was irrelevant to the applicant’s own claims and evidence that during his time in Malaysia, he had “felt like a Christian”[60].
[59] CB 162 at [77]
[60] CB 152 at [18]
Resolution
The authorities referred to by the parties in their submissions establish that the Tribunal cannot set itself up as an arbiter of religious doctrine. Neither, in my opinion, can the Tribunal set itself up as the arbiter of the path to religious conversion. On the other hand, the Tribunal was perfectly entitled to test the credibility of claims based on religious belief or conversion. The question to be resolved in respect of the first ground is whether the Tribunal’s decision was arbitrary and/or unreasonable in a legal sense.
The applicant’s challenge in this respect is directed at [77] of the Tribunal’s reasons where it said[61]:
The applicant attempted to explain the delay by claiming that the process by which he cast off his faith in Islam was slow and difficult. I do not accept this explanation. First, he said that he had not explored any other religions apart from Christianity. In my view, a person who had harboured significant doubts about their own faith for many years and had engaged in the process of reading and spiritual exploration described by the applicant would have investigated other faiths, not just Christianity. Secondly, the applicant suggests that he did not commit to Christianity more quickly because he was still seeking to disengage from Islam, and this took a considerable time. However, as discussed with him at the hearing, I find his account of the process he claims to have gone through to be illogical and implausible. As noted above, he gave evidence that he considered that he was living a Christian life in Malaysia, and that he no longer believed in Mohamed or Islam. He then said that he did not attend church in Sydney for many months because he was still a Muslim. Further, as discussed at the hearing, I consider that the process of disengaging from Islam is part of the same process of learning about the new faith – one could not make the decision to abandon Islam without a reasonable knowledge of the new faith. In my view, this could not be acquired merely by reading material on the internet. I note also the somewhat equivocal evidence of Mr Luchwitz about the applicant’s level of knowledge about Christianity when they first met. Initially he stated that the applicant did not know much about Christianity at all when they first met and said that he did not consider that he was well read. I accept the applicant’s arguments about the subjective nature of the term “well read”, and accept that Mr Luchwitz also stated that the applicant had asked questions about various matters suggesting that he had read some information about Christianity prior to their meeting. I consider, however, that the impression initially conveyed in Mr Luchwitz’s evidence, that the applicant did not know much about Christianity when they first met, more accurately and credibly reflects his true viewpoint. While I accept that the applicant had some knowledge of Christianity when he met Mr Luchwitz, and that ultimately Mr Luchwitz stated that it appeared that the applicant had done some reading about Christianity and had some knowledge of it, I do not accept that the applicant had acquired sufficient knowledge about Christianity by reading material on the internet to provide a sound basis on which to conclude that he wished to convert to Christianity before ever having attended a Christian church or been part of a Christian community. Moreover, I consider that the applicant has not been truthful in his evidence about his exploration of Christianity prior to his attendance at Hillsong Church in June 2012. As noted above, I do not accept that he attended church in Malaysia as part of that process and I consider that he has exaggerated the amount of reading he had done and the knowledge he possessed about Christianity prior to first attending Hillsong.
[61] CB 162-163
There is a great deal of analysis in the above quoted paragraph, not all of which is pellucidly logical. In my opinion, however, the Tribunal’s analysis in that paragraph is centrally focussed upon the applicant’s own evidence, which the Tribunal found inconsistent, particularly in relation to his time in Malaysia and to his attitude to Christianity in Australia prior to his association with the Hillsong church. The Tribunal formed the view that the applicant’s account lacked plausibility which weighed against the credibility of his claims. Viewed in isolation, the Tribunal’s opinion, that the process of disengaging from Islam is part of the same process of learning about the new faith (Christianity) and that one could not make a decision to abandon Islam without a reasonable knowledge of the new faith, is an arbitrary statement based on nothing. However, as was pointed out by counsel for the Minister in oral submissions, the statement must be read in the context of what the applicant claimed. The applicant presented himself as a person who was not irreligious; that is, he could not live without any religious attachment. The Tribunal’s analysis has a logical basis in that assertion. Viewed in context, the Tribunal’s analysis at [77] is no more than a rejection of the applicant’s contention that his exposure to Christianity prior to attending Hillsong church was more than superficial. The Tribunal formed the view that the applicant’s conversion to Christianity essentially began and ended with his association with the Hillsong church and was pre-meditated with a view to supporting his protection visa application.
I otherwise agree with the Minister’s submissions referred to above at [38]-[40]. I reject the first ground of review.
The second ground of review focuses upon [73] of the Tribunal’s decision record where it said[62]:
The applicant claims to have regularly attended church when living in Malaysia between 2007 and 2009; indeed, he claimed in his protection visa application that he was living “a Christian life” during that time. In assessing the significance of this statement, I have had regard to the explanation provided by the applicant himself at the hearing about what he meant by it. I consider that this is more useful than the gloss sought to be put on the phrase in the s.424A response. In oral evidence the applicant explained that by stating that he was living a Christian life in Malaysia he meant that he was not practising Islam, he was away from Islam and he was attending church; when he looked at his life he felt that he was a Christian without having converted. He no longer believed in Mohamed or Islam, he leant more towards the beliefs of Christianity and the message of Jesus; he felt more a Christian than a Muslim. However, the applicant subsequently explained that he did not regularly attend church for two years after arriving in Australia in 2010 because he was still a Muslim. In my view, the applicant has been unable to provide evidence which reconciles these apparently inconsistent statements. Moreover, I consider highly significant Mr Luchwitz’s evidence that the applicant did not tell him that he had attended church in Malaysia or that he [had] considered himself to have been living a Christian life during that time; Mr Luchwitz also said that he would have expected the applicant to tell him, in light of their relationship. I have considered the explanation provided by the applicant in his s.424A response, but do not accept that if he had told Mr Luchwitz this information, Mr Luchwitz would not have recalled it, especially when he was specifically asked about it. Given the significance now placed by the applicant on his church attendance in Malaysia, and on that episode as part of his spiritual development, I consider that the applicant would have mentioned it to Mr Luchwitz if it were true; for the same reasons, I do not accept that Mr Luchwitz would not recall this information if he had been told. In these circumstances, I do not accept that the applicant attended church in Malaysia in the context of any kind of discovery of, commitment to or engagement with the Christian faith, although I am prepared to accept that he may have attended church for some reason, and that he took his brother with him on one occasion. I find that the applicant has made up or embellished his claims about the level of his involvement with the Christian church in Malaysia.
[62] CB 161
Again, in my opinion, the Tribunal’s analysis in this paragraph is no more than a characterisation of the applicant’s claimed involvement with Christianity in Malaysia as incidental or superficial. The applicant places stress upon his efforts to explain events in Malaysia at the Tribunal hearing but the Tribunal found inconsistencies between that explanation and his prior written claims.
I accept the applicant’s submission, based upon the decision of Jacobson J in SZGUW v Minister for Immigration[63] that the Tribunal must consider claims in their context. It is true that the applicant claimed he was concerned at the prospect of abandoning Islam but this was considered by the Tribunal at [77] and [80] of its reasons[64].
[63] [2010] FCA 475 at [52], [55], [60] and [66]
[64] CB 162-164
Critically, in my view, the applicant undermined his own claim by saying in his written statement that he had attended church for two years in Malaysia and felt like a Christian. In his oral evidence he claimed to have overcome his fears of conversion in Malaysia. Relevantly, he said[65]:
[65] T 8 26-46
Q. Um, where was that girlfriend from?
A. … Um, she’s from Kuching.
Q. So she was Malaysian?
A. She was, yes.
Q. Had she always been … had she been raised a Christian, or had she converted?
A: She has been raised a Christian as well.
Q. And you were in Malaysia for two years, I think.
A. Yep.
Q. So did you attend church for that entire two year period, or um …
A. Um, it was … well, I met her … I met her perhaps six months into my first (indistinct) in Malay … in Malaysia and um, well at first I knew she used to go to church on Sundays and I asked her to take me with her and um, well, at the beginning I didn’t exactly go every Sunday, but I did start eventually going every Sunday once I felt that I belonged to it, and that I’d got over the initial fear that I was, you know, moving away from Islam and I was doing something entirely different, and I guess what helped was just the feeling that it was … it was right, and it wasn’t something that was wrong for me to do.
The applicant later tried to retreat from that position, but the resulting inconsistency in his evidence created further credibility problems for him.
In my opinion, the Tribunal did consider the applicant’s claims in their totality and did not misconstrue them. I reject the second ground.
Conclusion
I find that the applicant has failed to demonstrate that the Tribunal decision is affected by jurisdictional error. The Tribunal decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 20 November 2015
CORRECTIONS
Paragraph 23, line 6 – delete “SZOUI” insert “SZUOI”
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