SZVXV v Minister for Immigration
[2017] FCCA 2199
•13 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVXV v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2199 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of delegate not to grant Protection visa – whether the Tribunal applied a test of religious faith inconsistently with s.116 of the Constitution or customary international law considered – no jurisdictional error. |
| Legislation: Constitution, s.116 Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 AMF15 v Minister for Immigration(No.2) [2016] FCCA 2743 |
| Applicant: | SZVXV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3645 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 August 2016 |
| Date of Last Submission: | 17 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3645 of 2014
| SZVXV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant, a citizen of Iran, arrived in Australia at Christmas Island as an unauthorised maritime arrival. On 4 December 2012 the applicant applied for a Protection visa.
Claims for protection
In a statement that formed part of his application for a Protection visa (Statement),[1] the applicant claimed he is afraid to return to Iran because he is a converted Christian. The applicant claimed as follows:
a)About three years before he arrived in Australia, the applicant met a girl who is a Christian. The girl was the daughter of an employee of the applicant’s father who managed a shoe making factory. The applicant was not a practising Muslim.
b)For approximately eight months, the girl took the applicant to underground churches. The applicant’s mother found out about the applicant’s activities, and she told the applicant’s father.
c)The applicant’s father reported the applicant’s activities to applicant’s father’s cousin who “is a high rank in Sepha”.[2] The official spoke to the applicant and warned him not to continue with his activities because the authorities will “cause problem, they will kill you, they will torture you”.[3]
d)Three days later, some people in civilian clothes picked up the applicant and took him to an unknown place. He was kept there for fourteen days during which time he was tortured many times.
e)After the applicant was released, the applicant, on his father’s request, went to an island in the Persian Gulf. He remained there for about four months when a friend of the applicant told him he was going to Australia and asked if the applicant wanted to join him. The applicant’s friend gave the applicant details of another person who would be able to assist the applicant leave Iran.
f)The applicant contacted the other person. The person gave the applicant details of a person to call in Jakarta. The applicant flew to Jakarta and in July 2012 he “was smuggled onto a boat which sailed to Australia”.[4]
[1] CB49-52
[2] CB50, [21]
[3] CB50, [22]
[4] CB51, [31]
Before the Tribunal
At the hearing before the Tribunal, the applicant claimed he had been slapped for wearing inappropriate clothing; that he had been arrested several times; his bicycle had been confiscated because of what he was wearing; and that he had been detained.[5] The applicant was asked about untranslated documents he had provided. The applicant said one of the documents was a summons requiring attendance at 10 am in July, and that the document related to his being detained.[6] The applicant said he was wanted in Iran because of the Christian girl he had met.[7] In response to the Tribunal’s question about when he was arrested, the applicant said it occurred around August 2010, but he could not recall the month or any other details.[8]
[5] CB180, [27], [28]
[6] CB180, [29]
[7] CB181, [30]
[8] CB181, [31]
The applicant also said that he went to church after he arrived in Australia, and that he was baptised in November 2012 within one month of his first attending church. The applicant said he was a Baptist, but later said he is a Catholic. He said he receives pamphlets in Farsi when he attends church.[9] The applicant was asked about his favourite Bible story, in response to which the applicant talked about fisherman and blind people.[10] The applicant said he attended church once or twice a month.[11]
[9] CB182, [37]
[10] CB182, [38]
[11] CB183, [39]
Tribunal’s reasons
Although the Tribunal considered it to be plausible that the applicant was not a practising Muslim, and that the applicant had met a girl who was Christian, and that the applicant and the girl discussed Christianity, it did not accept that the applicant engaged in Christian related activities in Iran, or that the applicant ever attended an underground church, or that he participated in discussions relating to Christianity in underground churches, or that he had ever read the Bible, or that he was interested in converting to Christianity in Iran.[12] The Tribunal’s findings were based on the following: [13]
a)the applicant’s evidence was vague, inconsistent, and lacking in details about significant claims;
b)the applicant was unable to provide a coherent account of the discussions he claimed he had had with the girl whom he claimed introduced him to Christianity;
c)the applicant was unable to provide a consistent account of the number of occasions he attended the underground church;
d)the applicant did not know the names of the people with whom he claimed to have engaged in religious activities; the applicant was unable to say when he met those people; the applicant’s account of how he met those people was odd in that the applicant claimed they just happened to be standing in front of the church, yet they trusted the applicant; and the applicant was unable to give information on where these religious sessions took place, or the number of locations where the sessions took place;
e)the applicant’s evidence about how regular the meetings took place was vague and uncertain;
f)the applicant’s account of the difference between the Old Testament and the New Testament was general, demonstrating a lack of understanding; and
g)the Tribunal considered that the applicant’s not knowing whether he had read the Old or New Testament in Iran raised doubts about his claims.
[12] CB180, [26]
[13] CB179. [24]
The Tribunal also found that the applicant’s evidence in relation to the harm he claimed he suffered in Iran was “inconsistent and lacked specific and significant details about core claims, including when and where those incidents” occurred.[14] The Tribunal was not satisfied that the summonses the applicant produced contained truthful or accurate information because the summonses do not mention the year of issue or the reasons for the summonses.[15] The Tribunal, therefore, did not accept the applicant’s claims that the applicant’s parents discovered the applicant had been engaged in Christian activities or that he was arrested and tortured as a consequence of his participating in any such activities.[16]
[14] CB181, [32]
[15] CB181, [32]
[16] CB181, [33]
The Tribunal found the applicant had left Iran legally, and without the assistance of any person. The Tribunal considered that to be further evidence the applicant is of no interest to the Iranian authorities.[17]
[17] CB182, [36]
Finally, the Tribunal was satisfied the applicant engaged in Christian related activities in Australia for the sole purpose of strengthening his protection claims. The Tribunal’s satisfaction was based his level of church attendance and his limited knowledge of Christianity despite his having been in Australia for two years. The Tribunal was of the view that “being a non-practising Muslim and getting involved in limited Christian related activities do not make the applicant a Christian convert”.[18]
[18] CB183, [42]
Based on these findings, the Tribunal was not satisfied the applicant satisfied the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) for the granting of a Protection visa.
Course of proceedings
When the matter was before me on 17 August 2016 the applicant applied for an adjournment pending the determination of two applications. One was the determination of the hearing of an application for special leave to appeal to the High Court from the decision of Flick J in ABX15 v Minister for Immigration and Border Protection[19] which, counsel for the applicant, Mr Williams, informed me was being proposed to be filed; and an application in the original jurisdiction of the High Court which counsel for the applicant at the hearing before me identified as “S178”. Counsel for the applicant, who also acted for the applicants in ABX15 and S178, informed me that the issues in those two cases at the very least were relevant to the grounds on which the applicant relied in the application before me. I refused to grant an adjournment, but I did so by noting I would not give judgment on the matters on the basis of the judgment of Flick J in ABX15 until such time as the High Court determines the application in S178.
[19] [2016] FCA 855
On 9 September 2016 Gageler J heard and dismissed an application to show cause in the original jurisdiction of the High Court brought by an applicant who was given the pseudonym “S178A”.[20] I assume that this is the proceeding counsel for the applicant described as S178A.
[20] Plaintiff S178A/2016 & Ors v Minister for Immigration and Border Protection & Anor [2016] HCATrans 219
Grounds of application
The further amended application on which the applicant relies raises three grounds of application. These are as follows (omitting particulars):
1.The second respondent violated the second limb of section 116 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution) by imposing religious observance on the applicant.
2.The second respondent violated the third limb of section 116 of the Constitution by prohibiting the applicant’s free exercise of religion.
3.The second respondent violated the applicant’s right to the free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia. Alternatively, it was not reasonably necessary nor [sic] proportionate to violate the applicant’s right to the free exercise of thought, conscience, religion or belief, in order to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
These grounds, or, at least, grounds to similar effect, have been considered by other judges of this Court. Of particular relevance is the decision of Judge Driver in AMF15 v Minister for Immigration (No.2) where his Honour consider grounds in the same form as the three grounds before me.[21] In AMF15 Judge Driver said:[22]
[21] [2016] FCCA 2743
[22] [2016] FCCA 2743 at [11]-[14]
[11] The first three grounds in the amended application cannot succeed. They were pressed by the applicant only to preserve the applicant’s rights of appeal.
[12] Notwithstanding this, the greater part of the applicant’s written submissions were directed to the first three grounds. These issues were considered by me recently in SZWAR v Minister for Immigration & Anor[23], in particular at [17]-[19] where I said:
[23] [2016] FCCA 2382
As held in ABX15 v Minister for Immigration[24], the argument sought to be put concerning s.116 of the Constitution is without substance. In Kruger v Commonwealth[25], five members of the High Court held that s.116 of the Constitution, in using the preposition “for”, only forbids the Commonwealth from passing laws whose purpose or object is the free exercise of religion[26]. As such, the question is “whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved”[27]. The constitutional test laid down in Kruger directs attention not to the effect of the statutory provision, but to its purpose or object.
[24] [2016] FCA 855 (Flick J) at [8]
[25] (1997) 190 CLR 1
[26] Brennan CJ at 40, Toohey J at 86, Gaudron J at 132-133, Gummow J at 160 (Dawson J agreeing at 60-61). See also Attorney-General (Vic) (Ex rel Black) v Commonwealth (1981) 146 CLR 559
[27] Gummow J in Kruger at 160
As held in ABX15[28], s.91R(3) does not fall within s.116. Further, s.116 does not necessarily embrace the manner in which a law is administered, and s.91R(3) cannot be seen as a law which authorises administrative conduct contrary to s.116[29]. The Tribunal was entitled to test the applicant’s claim to be a Christian[30]. The Court is bound to follow ABX15 and SZUDI[31]. I had previously deferred to 12 September 2016 an adjournment request pending the outcome of proceedings raising similar arguments in the High Court[32].
[28] at [19]-[20]
[29] ABX15 at [21]-[22]
[30] ABX15 at [23]-[26]. See similarly SZUDI v Minister for Immigration [2015] FCA 530 (Siopis J) at [20]-[25], referred to in ABX15 at [28]
[31] The applicant’s argument is also inconsistent with the recent judgment of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (note that this decision is the subject of an application for special leave to appeal to the High Court)
[32] ABX15 at [29]
Finally, there was no denial by the Tribunal of any right under Australian law to free exercise of thought, religion, conscience or belief, howsoever expressed. The Tribunal did not accept the applicant’s claim that he had genuinely converted to Christianity or that he would seek to promote or practise Christianity in Iran[33]. In those circumstances no issue of free exercise of religion or other belief can arise[34].
[33] CB 157 [55]
[34] see similarly AMC15 v Minister for Immigration [2016] FCCA 1458 (Judge Smith) at [15]-[19] and cases there cited
[13] The lack of merit in these arguments was recently reinforced by the High Court of Australia in Plaintiff 178A/2016 v Minister for Immigration[35]. There, Gageler J said at lines 637-685 of the transcript:
Section 116 of the Constitution, insofar as the argument of counsel for the plaintiffs seeks to rely on it, prohibits the Commonwealth from making any law “for imposing any religious observance, or for prohibiting the free exercise of any religion”. Doubtless, the prohibition extends to a Commonwealth law which would authorise a Commonwealth officer or Tribunal to impose a religious observance or to prohibit the free exercise of a religion.
But that is not even arguably what has occurred here. The Parliament of the Commonwealth has made no law which has the purpose or the effect either of imposing any religious observance or prohibiting the free exercise of any religion. What the Parliament has done in the domestic implementation of the Refugees Convention by a number of provisions of the Migration Act is to establish, as a criterion for a protection visa, that the applicant for the protection visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. By these provisions, Parliament has then imposed, first on the Minister or the Minister’s delegate and then on the Tribunal, the duty in a review of finding the facts and deciding whether or not to be satisfied that the criterion for a protection visa is met.
One of the grounds on which a person might claim to be a refugee is a well-founded fear of persecution on account of that person’s religion. That does not have the result that section 116 of the Constitution disentitles the Minister, the delegate or the Tribunal from examining the genuineness of that person’s claimed religious belief.
In the present case, counsel for the plaintiffs points to a number of questions examined in the lengthy reasons for decision of the Tribunal. They are particularised in ground 1 of the application for an order to show cause. I cannot regard those questions, their asking, their examination or their consideration by the Tribunal as amounting individually or cumulatively to the imposition by the Tribunal of a religious test or to the prohibition by the Tribunal of the free exercise by the plaintiffs of their religion.
All that the Tribunal did here was to discharge the statutory duty imposed on it by the Act to review the delegate’s decision. The Tribunal had a fact-finding function and was required, in the discharge of that fact-finding function, to test the claim which the plaintiffs had themselves made. The genuineness of the beliefs that they professed was a question relevantly within its statutory remit and not denied to it by the operation of section 116 of the Constitution. It is impossible to characterise the Tribunal’s actions as anything other than engaging in a review on the merits of the delegate’s decision. It is impossible to characterise the Tribunal’s actions as imposing any religious observance, as prohibiting the exercise of religion or as violating any right to free exercise of thought, conscience, religion or belief.
As to the customary international law claim, counsel for the plaintiffs has not demonstrated how the mere testing of a factual assertion to fear persecution on a Convention ground can violate the customary international law norm to which he points. Nor has he presented an arguable case as to how that international law norm might condition the exercise by the Tribunal of its statutory function.
[14] Counsel for the applicant before me directed a great deal of effort to attempting to persuade me why Gageler J in Plaintiff S178A/2016 was wrong. Those efforts were misplaced as I am obviously bound by superior court authority on these issues even if I had contrary views (which I do not). I was told by counsel for the applicant that leave to appeal against the decision of Gageler J is being sought. That is not a matter which should be a concern for this Court in the light of the authorities. . . .
[35] [2016] HCA Trans 219
On my research, the applicant in S178A did not apply for leave to appeal from the judgment of Gageler J or, if he did, the applicant did not pursue it to a hearing
The particulars to the grounds in the case before me are, of course, different from the particulars that supported the first three grounds of application Judge Driver considered in AMF15. The differences, however, are not material. In my opinion, therefore, the reasons on which Judge Driver relied for concluding the first three grounds of application that were before him lacked merit apply equally to the grounds of review on which the applicant relies in the case before me; and I conclude that the three grounds on which the applicant relies in the case before me lack merit.
Disposition
It follows, therefore, that the application must be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 13 September 2017
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