SZVTC v Minister for Immigration
[2017] FCCA 2793
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVTC v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2793 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to question the applicant sufficiently, made findings of fact which were unreasonable and relied on irrelevant matters when making findings of fact. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | SZVTC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3315 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 15 August 2017 |
| Date of Last Submission: | 15 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. N. Silva |
| Solicitors for the Respondents: | Mr J. Pinder of Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3315 of 2014
| SZVTC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who arrived in Australia on 10 August 2013. On 5 November 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 India because he is a Christian. On 21 March 2014 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.
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.
For the reasons which follow, the application will be dismissed.
Background facts
The applicant was born in Pulluvitla, Trivandrum and claimed to be a Catholic Christian who was raised by Catholic parents. As summarised by the Tribunal, the applicant relevantly made the following claims:
a)he feared harm from Muslim extremists if he returned to India because of his religion;
b)on 17 May 2009, there was a communal riot between Christians and Muslims in the Cheriyathura-Beemapally coastal area on the outskirts of the capital city of Kerala. An irate group from Beemapally came to Cheriyathura and attacked Christians;
c)although he lived in Poonthura, at the time he had been staying in the border area of those two suburbs. He was attacked in the riot, his house was destroyed and his wife was injured. Following the communal riot, he was subjected to further attacks by the same “Muslim fanatics” on 20 July 2009 and on 15 June 2013;
d)he was a witness for the police and as a result of his statements, Muslim fanatics were after him and wanted to kill him;
e)he realised he could not stay at home and he had to keep moving to find a suitable place to live, but the fanatics were hunting to kill him. He had to come to Australia to seek asylum; and
f)he lived in New Zealand from August 2009 to 2013, returning to India in January 2013. He remained there until he came to Australia in August 2013.
The Tribunal’s decision and reasons
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 findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:
12.The Tribunal did not find the applicant to be a credible, truthful or reliable witness (at [13]). In making that finding, the Tribunal considered his evidence to be vague, evasive, inconsistent and changing (at [13]).
13.The Tribunal set out in detail its concerns regarding: the applicant’s claim to be a Christian (at [14]–[15]); the applicant’s claims to have assisted police following a religious riot in 2009 (at [16]–[17]); the omission of significant claims of past harm from the applicant’s original statement (at [18]–[19]); the applicant’s claims about seeking police assistance (at [20]–[21]); the applicant’s evidence about where he lived in India (at [22]); the applicant’s evidence about the attacks on his wife and her injuries and where she lived (at [24]–[28]); the applicant’s failure to apply for asylum in New Zealand (at [29]–[30]); the applicant’s return to India (at [31]); and the applicant’s delay in leaving India after receiving a tourist visa to Australia (at [32]).
14.The Tribunal gave detailed consideration to a request made by the applicant at the commencement of the Tribunal hearing for more time to produce documents (at [35]). The Tribunal provided reasons for refusing to adjourn the review (at [36]–[42]).
15.On the basis of its adverse credibility finding, the Tribunal found that the applicant had fabricated the basis of his claims for protection (at [43]). It rejected all of the material elements of the applicant’s protection claims (at [43]–[44]). It therefore found that he did not satisfy either the refugee criterion or the complementary protection criterion.
Proceedings in this Court
In his amended application the applicant alleged:
(1)The Tribunal made jurisdictional error in that it was unreasonable for the Tribunal to find that the applicant is not a Christian.
Particulars
At [15] (CB161) the Tribunal stated that:
The Tribunal considers that the applicant’s inability to provide any details about his claimed religion undermines his claim to be a Christian, to have suffered because his is a Christian, and that he will be targeted by Muslim fanatics in the future because he is a Christian.
(a)The Tribunal did not ask specific questions about Christianity but just asked open questions or general questions that could not have allowed the applicant who is not articulate to demonstrate his knowledge.
(b)Although not articulate the applicant provided several indicators that he is a Christian.
(c) The applicant’s first name and surname are both Christian.
(d)The identity as a Christian does not necessarily connote a person with deep knowledge of Christianity.
(2)The Tribunal used irrelevant issues to make adverse credibility finding against the applicant.
Particulars
(a)The Tribunal questioned him why he has not learnt English (Transcript pg. 13 & 14); and
(b)Tribunal used a standard of morality irrelevant to the determination of his case in that it asked the applicant to reconcile his religion with his actions in terms of immigration history in New Zealand – see [14](CB161) & Transcript Pg. 25.
Ground 1
In his written submissions the applicant argued that the nature of the questions put to him by the Tribunal, which he said did not afford him a proper opportunity to demonstrate his knowledge of Christianity, and the evidence which he did advance supportive of his claim to be a Christian, were such that the Tribunal’s conclusion that he was not a Christian was unreasonable. He argued that his complaint concerned both the conclusion reached by the Tribunal and the process by which it reached that conclusion.
Dealing first with the matter of procedure, the Tribunal was under no obligation to ask the applicant any particular questions and it committed no error by not asking questions which the applicant now appears to believe should have been asked. The Tribunal was under no obligation to prompt an elaboration which the applicant did not himself choose to make: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at 451 [58], Gleeson CJ agreeing at 438 [1]. No unreasonableness attaches to the manner in which the Tribunal questioned the applicant on his allegation to be a Christian.
The second issue concerns the strength of the evidence before the Tribunal supportive of the applicant’s claim to have been a Christian. The relevant particulars of the allegation invited the Court to undertake impermissible merits review and so disclosed no basis upon which the Tribunal’s decision should be set aside.
The applicant’s written submissions also referred to evidence before the Tribunal which might have supported a finding that he was a Christian but, again, the applicant was doing little more than seeking merits review. Matters to which the applicant referred in his submissions included his church attendance, his prayers, his claim that his sister was a nun and his claim that his parents were Christians. However, the Tribunal considered the applicant’s knowledge of Christianity to be inconsistent with his claims to have been brought up as a Christian because, although:
… the Tribunal gave the applicant numerous opportunities to talk about his religion, he was unable to provide any detail except for a few keywords such as “church”, prayers”, worship, and his sister is a nun. Even after the Tribunal said it was concerned that his evidence may indicate that he is not a Christian, and asked if there was anything at all he could tell it about his religion, he said words to the effect of “they told me Thomas came and tell about Christianity and those kind of things they taught us”… “In the evening we pray about our mother”. (para.14)
The Tribunal considered that the applicant had been unable to provide any real detail about his religion and that this undermined his claim to be a Christian. I am not of the view that this conclusion was one which no reasonable decision-maker would have reached: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-650 [128]-[135] per Crennan and Bell JJ.
It should be noted in this regard that at the conclusion of its consideration of the applicant’s unpersuasive evidence concerning his Christianity, the Tribunal went on to consider the remainder of his allegations and factual assertions. These were generally found to have been characterised by omission, inconsistency and changeability.
In his address to the Court the applicant’s counsel submitted that the applicant’s concern arose out of his “identity” as a Christian, a concept which was not much elaborated upon but appeared to involve questions of heritage and cultural identification rather than matters of faith and belief. The submission was that the applicant faced persecution because Muslims in his home area would perceive him to be a Christian for reasons which were independent of his personal faith. However, I do not understand that to have been the nature of the allegations which the applicant made in support of his visa application and Tribunal review. I understand the applicant’s claims to have been founded on his own personal beliefs and identification as a Christian, rather than on perceptions of his religion or on his membership of a particular social group, such as his family, characterised by its belief in Christianity.
However, should I be wrong in that understanding, it is important to record that the Tribunal’s rejection of the applicant’s claim to be a Christian at para.43 of its reasons was a consequence of its antecedent finding at para.33 of its reasons, based on its analysis of his evidence as a whole and its findings as to the deficiencies in that evidence, that he was not a credible witness. That is to say, the applicant’s review application failed because the important factual contentions which he advanced were not believed, not because his identity more generally, if that was something which the Tribunal ought to have considered but did not, should have convinced the Tribunal that he had a well-founded fear of persecution for a Convention reason.
Ground 2
The first element of the second ground of the amended application concerned an assertion that the Tribunal had formed an adverse view of the applicant’s credit based on what was said to have been his failure to learn English. This related to an exchange at the Tribunal hearing in which the following was relevantly said:
TRIBUNAL: So what languages do you speak?
APPLICANT: Malayalam.
TRIBUNAL: Yes.
APPLICANT: A bit of Tamil.
TRIBUNAL: Yes.
APPLICANT: A bit of Hindi.
TRIBUNAL: Right, okay.
APPLICANT: I can’t read Hindi.
TRIBUNAL: So there’s a bit of - so there’s Malayalam, a bit of Hindi …
APPLICANT: Yes, a bit of Tamil.
TRIBUNAL: What about English?
APPLICANT: No, I don’t.
TRIBUNAL: Why spend four years in English speaking places and you don’t understand English?
APPLICANT: There’s no connection with English speaking people there.
TRIBUNAL: Sorry?
APPLICANT: There’s no connection - there was no connection with English speaking …
TRIBUNAL: That’s not my question. My question is: why would you spend four - why would you choose to go to New Zealand and Australia if you can’t speak English? If I could get you to look at me not at the interpreter. Talk to me not to the interpreter. Right. So I’m asking you why would you choose to spend four years in English speaking countries if you don’t speak any English?
APPLICANT: Because of the problem - because of problems.
TRIBUNAL: Why didn’t you pick some other country or some other area in India?
APPLICANT: Even if I go, there are problems, too.
It is apparent from those exchanges that the Tribunal was not concerned with the applicant’s apparent failure to learn English but with his choice of New Zealand and Australia, anglophone countries, as the ones to which he travelled.
In addresses the applicant’s counsel referred the Court to a part of the Tribunal hearing transcript to which reference had not been made in the particulars of this allegation. He described the Tribunal’s approach as humiliating of the applicant. The relevant exchanges were:
APPLICANT: Every Sunday I go to church.
TRIBUNAL: Which church?
APPLICANT: (Direct) St Thomas.
APPLICANT: (Through interpreter) St Thomas.
TRIBUNAL: Where’s that?
APPLICANT: St Jacob Church. Before I got married, St Jacob.
TRIBUNAL: Sorry, didn’t you just say St Thomas Church?
APPLICANT: After married St Thomas.
TRIBUNAL: Okay. What about in Australia?
APPLICANT: There’s a church in Granville.
TRIBUNAL: What’s it called?
APPLICANT: I don’t actually know the name of the church.
TRIBUNAL: You don’t know? Right. Well, what language is the service in?
APPLICANT: The service is English, but there’ll be masses in our language once in a while.
TRIBUNAL: How often?
APPLICANT: Once in a month.
TRIBUNAL: So once in a month you can understand what’s going on. Is that what you’re saying?
MRDAVID: Yes.
TRIBUNAL: Why don’t you learn English?
APPLICANT: I like to study English.
TRIBUNAL: No, I’ve asked - you said to me you don’t speak English. I’ve asked you why you haven’t learned English if you can’t understand the English language services you attend.
APPLICANT: I like to study and some people told me (indistinct) mentally I’m not ready.
In his written submissions the applicant argued that whether or not he was a refugee did not depend on his ability to speak English. As far as it goes, that submission may be accepted. However, the applicant’s commitment to his claimed religion might be tested by his failure to learn the vernacular in which the church services he attended were generally celebrated. Questions of that sort are not, without more, indicators of error.
In any event, the matters to which reference were made in connection with this part of the second ground of the amended application were not cited by the Tribunal as the foundation of any findings of material fact. Consequently, they do not provide a basis for the setting aside of the Tribunal’s decision.
The second particular of the second allegation suffers from the same difficulty. The Tribunal did not apply to the applicant’s conduct any “standard of morality” as part of its reasoning. Relevantly, the transcript records:
TRIBUNAL: So you’re saying that you’ve been a Christian -you were brought up as a Christian.
APPLICANT: Yes, father, mother and grandfather, mother - grandmother, everyone is Christian.
TRIBUNAL: And you attended church, and you attend church here.
APPLICANT: Yes.
TRIBUNAL: Right. So when you said that, “Christian ideologies made me lead the life of a true Christian in a virtuous manner,” when you said that – and then I’ll continue – then how do you reconcile that with you remaining unlawfully present in New Zealand, so contravening the laws, breaking the laws in New Zealand for two and a half years by staying there? How do you reconcile that?
APPLICANT: What circumstances to stay there. That’s why I stayed there.
TRIBUNAL: No. I’m asking how you reconcile it - reconcile your religion with your actions. Explain to me your actions in terms of your religion.
APPLICANT: It happened, it was circumstances.
In its reasons the Tribunal referred to that exchange in the following terms:
The applicant told the Tribunal that his visitor visa for New Zealand lasted for one month, and thereafter he remained unlawfully in New Zealand for about 3 ½ years. The Tribunal noted the contents of the applicant’s statement, wherein he referred to Christian ideologies, and leading a life of true Christian in a virtuous manner, and asked the applicant how he could reconcile breaking the laws in New Zealand with his Christianity. In response, the applicant said there were circumstances for him to stay in New Zealand. The Tribunal again asked the applicant to explain, in terms of his religion, how he reconciled his decision to stay unlawfully in New Zealand, and he was unable to provide any further explanation. The Tribunal considers that if the applicant was a genuine Christian, he would have been able to explain why, having regard to his religious beliefs, his overstaying in New Zealand did or did not matter.
As can be seen, the Tribunal’s concern was that the applicant could not discuss whether his conduct had been consistent or inconsistent with the religion he claimed to espouse, not that it might in fact have been inconsistent with his claimed beliefs. Therefore, no error has been demonstrated in connection with this particular of the allegation.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 7 December 2017
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