SZVVZ v Minister for Immigration
[2016] FCCA 1077
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVVZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1077 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the applicant had made a genuine conversion to Christianity – whether the applicant had a well-founded fear of persecution – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R(3), 476 |
| Applicant: | SZVVZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3510 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 6 May 2016 |
| Date of Last Submission: | 6 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Davies |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the First Respondent: | Ms H Musgrove Sparke Helmore |
ORDERS
The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3510 of 2014
| SZVVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Tribunal made on 19 November 2014, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country. The applicant arrived in Australia on 23 June 2012 on a US 462 temporary work and holiday visa. The applicant departed on 17 June 2013 and returned on 23 June 2013. The applicant’s visa was valid until 27 June 2013, and it was not until 26 June 2013 that the applicant applied for protection.
The applicant claims to fear harm by persecution if returned to Bangladesh, by reason of having converted from Islam to Christianity. The applicant says his family were Sunni Muslims, and he is an ethnic Bengali who alleges he is now a Christian. By a letter dated 6 August 2014, the applicant was invited to attend a hearing on 18 September 2014 to give evidence and present arguments, and the applicant was assisted by an interpreter.
The Tribunal identified in its reasons the evidence of the applicant and also clearly raised issues concerning the applicant’s credibility and his conversion to Christianity. Following the hearing, post-hearing submissions were provided on 16 October 2014, addressing in particular the applicant’s alleged practice of Christianity and his alleged fears arising from his conversion to Christianity if he were returned to Bangladesh.
In the structure of its reasons, the Tribunal identified the applicant’s alleged involvement with Christianity before June 2013, as well as the applicant’s alleged involvement with Christianity after June 2013. Relevantly, in relation to the applicant’s claims in respect of his involvement with Christianity after June 2013, the Tribunal found that it was not satisfied that the applicant’s involvement in Christianity had been undertaken other than for the purpose of strengthening his claims to be a refugee. As required under s.91R(3), that conduct was disregarded in considering whether or not the applicant had a well-founded fear of persecution in Bangladesh for reason of his alleged religion.
Relevantly, the Tribunal found that it was not satisfied that the applicant has genuinely converted to Christianity since his return to Australia. The Tribunal found that the applicant did not have a well-founded fear of persecution because of his religion or for any other Convention reason should he be returned to Bangladesh now or in the reasonably foreseeable future.
The Tribunal also made adverse findings in relation to complementary protection and found that it was not satisfied there are substantial grounds for believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there’s a real risk he would suffer significant harm.
The grounds of the application are as follows:
1. The Tribunal failed to consider the applicant's claim under s 36(2)(aa) of the Act, either at all or in any real sense, or alternatively acted irrationally or unreasonably.
Particulars
a. In breach of s 430(1)(b) of the Act, the Tribunal failed to give reasons for its decision that it was not satisfied that the applicant had converted to Christianity following his involvement with the Salvation Army from August 2013 onwards: cf. Tribunal's Decision at [44].
b. The Tribunal found that the applicant's activity with the Salvation Army began in August 2013: Tribunal's Decision at [35].
c. The Tribunal found that letter provided by the applicant from a range of Salvation Army officers, and the applicant's “certificate of adherency” indicating that the applicant became an adherent member of the Salvation Army on 12 October 2014 were "an accurate reflection of his involvement in the activities of the Salvation Army": Tribunal's Decision at [34].
d. The Tribunal found that “those who have written supporting letters believe, variously, that [the applicant] is 'seeking to develop his understanding of the Christian faith,' has ' ..given testimony to a faith in Jesus Christ and is now considered to be a Christian,' is 'growing in understanding of the Christian faith and the ethical standards that are central to it,' is '..a brother in Christ' and that his Christian faith has been seen to grow in the time he has been at Hurstville Salvation Army”: Tribunal's Decision at [36].
e. In light of these findings, the following statement from the Tribunal reveals that the Tribunal erred in failing to consider either at all or in any real sense, or acted irrationally or unreasonably in considering, whether the applicant had converted to Christianity following his involvement in the Salvation Army church in Hurstville from August 2013 onwards (Tribunal's Decision at [44]):
“Nor, having carefully considered the information before the Tribunal concerning his involvement with the Salvation Army from August 2013 to the present, am I satisfied that he has now converted to Christianity.”
Mr Davies, counsel on behalf of the applicant, took the Court to the structure of the Tribunal’s reasons and relied upon his submissions in developing an argument that, in relation to complementary protection, the Tribunal had ignored relevant material or not given a proper and genuine and realistic consideration to the applicant’s claims in respect of Christianity.
In the context of the adverse findings by the Tribunal in respect of the applicant’s claims, it is clear that the Tribunal made adverse findings in relation to the applicant’s credibility. In relation to the applicant’s claims of involvement with Christianity before June 2013, the Tribunal found that it was not satisfied that the applicant had more than a minor contact with Christian churches before he left Australia to return to Bangladesh in June 2013 and was not satisfied that he had embraced the Christian faith or considered himself to be a Christian or that he had abandoned Islam as a consequence.
The Tribunal was not satisfied that the applicant had confided in his mother that he had converted from Islam to Christianity. The Tribunal was also not satisfied that his alleged conversion was the reason for his return to Australia four or five days after he arrived in Bangladesh. The Tribunal said it was not satisfied that the applicant’s claims in relation to conversion to Christianity were credible and found that this cast strong doubt over the credibility of the applicant’s claims in general.
In considering the issue of complementary protection, the Tribunal referred to its earlier reasons saying:
As noted, I am not satisfied that the applicant had, in fact, abandoned his Islamic faith and converted to Christianity at the time he returned to Bangladesh in June 2013. Nor can I, having carefully considered the information before the Tribunal concerning his involvement with the Salvation Army from August 2013 to the present – am I satisfied that he has now converted to Christianity.
It is clear that the Tribunal was engaged in an intellectual process of deliberating upon the applicant’s claim of conversion to Christianity in applying the criteria in respect of complementary protection. The Tribunal went further and said:
I am not satisfied that his Salvation Army involvement indicates that, if he were to return to Bangladesh, he would draw attention to himself by worshipping as a Christian or otherwise involving himself in Christian activities or by any conduct indicating that he had renounced his Islamic faith. Nor am I satisfied that he would refrain from Christian worship because of any fear of the consequences.
The above reasons of the Tribunal are a proper genuine and realistic consideration of the applicant’s claims in respect of Christianity. The first way in which counsel for the applicant sought to develop a jurisdiction error is, for the above reasons, without substance. It cannot be said that the Tribunal ignored relevant material in relation to the applicant’s claims of Christianity. It is clear that the Tribunal took into consideration the applicant’s claims concerning Christianity in making adverse findings that were open to the Tribunal on the material before the Tribunal.
The second ground advanced by counsel for the applicant was that the finding by the Tribunal that it was not satisfied that the applicant had converted to Christianity since his return to Australia was irrational or unreasonable. The substance of the argument by counsel for the applicant focused upon the documentary materials supporting the applicant’s alleged conversion. This is a case where the Tribunal made adverse findings in relation to the applicant’s credit that were open to it.
Those adverse findings were ones which, in those circumstances, it was open to the Tribunal to make the finding that it was not satisfied that the applicant had genuinely converted to Christianity since his return to Australia. This finding cannot be said to lack an evident and intelligible justification. The adverse finding by the Tribunal in relation to complementary protection cannot be said to be unreasonable or irrational. The application fails to make out any jurisdiction error. The application is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 17 May 2016
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