SZVZO v Minister for Immigration
[2016] FCCA 2557
•4 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVZO v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2557 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Iran – applicant not believed – whether the Tribunal erred in testing the veracity of the applicant’s religious claims considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Cases cited: ABX15 v Minister for Immigration & Anor [2016] FCA 855 AMF15 v Minister for Immigration [2016] FCAFC 68 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZVZO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 105 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application as amended on 6 June 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 105 of 2015
| SZVZO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 4 October 2016, I dismissed with costs the further amended application filed in this matter on 6 June 2016. I refused to grant leave to the applicant to file and rely upon a second further amended application raising additional grounds. I also refused an adjournment while the applicant attempts to obtain leave to raise before the High Court constitutional arguments in the further amended application that have previously been rejected. The procedural and substantive issues arising are similar to those I dealt with in SZWAR v Minister for Immigration & Anor[1]. The following are my reasons for the orders made on 4 October 2016 in this matter, to the extent necessary to augment my earlier reasons in SZWAR.
[1] [2016] FCCA 2382
The applicant is a citizen of Iran who arrived by boat on Christmas Island on 12 August 2012[2]. He participated in an entry interview on 15 September 2012[3] and lodged a protection visa application on 13 December 2012[4]. He appointed a migration agent to advise and assist him in connection with that application[5].
[2] Court Book (CB) 16, 101
[3] CB 4-12
[4] CB 13-39
[5] CB 68-71
The applicant provided a written statement of claims in support of his protection visa application:. The applicant claimed to fear harm because he had renounced Islam, converted to Christianity and had a relationship with a “girl”, “N”[6] whose father was a Sepah commander and a “fanatic Muslim”. After discovering her relationship with the applicant, N’s father punished her, which left her with bruises. The applicant subsequently realised he was being “monitored” by unknown people. N’s father threatened to kill the applicant if he continued the relationship and N told the applicant that her father had fabricated a case against him and was going to arrest him. The applicant stayed with his aunt and uncle for 25 to 30 days before fleeing to Australia.
[6] the name has been anonymised
The applicant claimed he had converted to Christianity after visiting Armenia twice and Georgia three times between 2009 and 2012. After his arrival on Christmas Island, the applicant claimed he attended Christian group study sessions and continued to learn about Christianity in Darwin and Curtin. Since arriving in Sydney he had attended Sunday services at the Liberty Baptist Church and was about to be baptised.
The delegate
The applicant attended an interview with a delegate of the Minister (delegate) on 25 June 2013 and his representative provided a submission on 26 June 2013[7].
[7] CB 85-94
In a decision dated 12 July 2013, the delegate made a decision refusing to grant the applicant a protection visa[8]. The delegate was not satisfied that the applicant had provided a consistent and plausible account of his circumstances in Iran and was not satisfied the applicant was a generally credible witness[9]. The delegate was satisfied that the applicant was not of ongoing interest to N’s father or the Iranian authorities at the time of his departure[10]. The delegate found that the applicant's responses regarding his interest in Christianity were unreliable and unpersuasive[11]. The delegate accepted that the applicant did not believe in Islam anymore but was not satisfied that he had been studying Christianity for a while or that he had embraced it as his new religion[12].
[8] CB 100-115
[9] CB 104.8
[10] CB 106.6
[11] CB 107.3
[12] CB 107.6
In addition, the delegate noted that the applicant's involvement in church activities in Sydney coincided with the time he applied for protection on religious grounds and was not satisfied that his current religious practice was genuine[13].
[13] CB 108.2
For these reasons, the delegate was not satisfied that the applicant feared a real chance of persecution[14] or there were substantial grounds for believing he would face a real risk of significant harm[15].
The Tribunal
[14] CB 113.3
[15] CB 115.3
On 17 July 2013, the applicant lodged an application for review of the delegate's decision[16] with the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) and appointed a migration agent to advise and represent him on the review[17].
[16] CB 116-122
[17] CB 119
On 15 October 2014, the applicant's representative provided a pre-hearing submission to the Tribunal with 18 attachments which included a Certificate of Baptism dated 4 August 2013[18] and extensive country information[19].
[18] CB 158
[19] CB 137-455
The applicant attended a hearing before the Tribunal on 5 November 2014[20] and provided further documents in relation to his claimed conversion to Christianity[21].
[20] CB 458-460
[21] CB 463-473
On 9 November 2014, the applicant's representative provided a post-hearing submission to clarify a perceived deficiency in the interpretation of the applicant's evidence relating to renouncing Islam[22].
[22] CB 474-476
By a decision dated 15 December 2014, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa[23]. The Tribunal rejected the entirety of the applicant's claims on the basis of adverse credibility findings.
[23] CB 480-494
The Tribunal cited several reasons to support the adverse view that it formed of the applicant's credibility. These were:
a) the applicant's failure to apply for (or make enquiries about) asylum in Georgia or Armenia[24];
b) the “subtle” inconsistency between his written and oral claims about the purpose of his visits to Georgia and Armenia[25];
c) his failure to mention in his written statement the “significant” claim that he attended bible reading gatherings in Iran[26]; and
d) his inadequately explained delay in being baptised on 4 August 2013 when a document he provided indicated that he would be baptised in mid-December 2012[27].
[24] CB 487-488 at [22]
[25] CB 487-488 at [22]
[26] CB 488 at [24]-[25]
[27] CB 489-490 at [28]
On the basis of the "noted concerns and observations" and after considering the evidence as a whole, the Tribunal was not satisfied that the applicant was interested in Christianity when he was in Iran or that he went to Georgia and Armenia because he was interested in Christianity. It also did not accept that he had engaged in any Christian-related activities in Iran and rejected his claim that he came to Australia to seek asylum on the basis of Christianity[28].
[28] CB 491 at [34]
In relation to his claimed relationship with N, the Tribunal found that the applicant had raised a significant claim for the first time at the hearing, namely that her father had accused him of speaking to her about Christianity[29]. The Tribunal found the applicant's explanations for not making this claim earlier were unpersuasive. Although it accepted as plausible that he had formed a relationship with N, it did not accept that her father was a fanatic Muslim or a Sepah commander, he became aware of the relationship, or any of the applicant's consequential claims of harm. In support of these findings, the Tribunal again cited its concerns about the applicant's credibility and its consideration of the evidence as a whole[30].
[29] CB 492 at [37]-[39]
[30] CB 492 at [40]
The Tribunal[31] considered the applicant's photographs showing him posing inside and outside churches but found they did not provide evidence that he had a genuine interest in Christianity. It also found it difficult to understand why a genuine Christian would pose in the manner depicted in one photo namely, the applicant posing on a crucifix.
[31] at CB 489 at [27]
The Tribunal also found that a Basic Bible Certificate submitted by the applicant indicated that his bible studies had intensified since June 2014 and were particularly intense around October 2014. The Tribunal found this suggested that he was preparing for the Tribunal hearing. It also found this raised further doubts about the genuineness of his interest in Christianity[32]. The Tribunal expressly considered the applicant's Baptism Certificate dated August 2013 but found his explanation for the delay in being baptised was not credible[33].
[32] CB 490 at [29]
[33] CB 489-490 at [28]
The Tribunal also received evidence from Pastor Piper from the Liberty Baptist Church who indicated that in his view the applicant was a genuine Christian[34]. The Pastor was unable to give details about the applicant's conversion to Christianity because the applicant would have completed the "seven step process" with Assistant Pastor Germi, who preached in Farsi. The Tribunal found that Pastor Piper's evidence did not overcome its concerns about the applicant's credibility and found that "as a person of religion", it was not the Pastor's role to assess the applicant's intentions[35]. The Tribunal also found that the applicant had only a limited understanding of Christianity which was incommensurate with his claims of having read the bible in Iran and in Australia for a number of years[36].
[34] CB 490 at [30]
[35] CB 490, 491 at [32]
[36] CB 491 at [33]
The Tribunal accepted that the applicant had been baptised, attended classes and church and read the bible since arriving in Australia[37]. However, given the concerns with his credibility, the Tribunal found that the applicant had engaged in this conduct for the sole purpose of strengthening his protection claims. Accordingly, it disregarded that conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth) (Migration Act)[38].
[37] CB 491 at [35]
[38] CB 491-492 at [36]
The Tribunal was satisfied that the applicant would not engage in Christian-related activities because he was not a genuine Christian. It was also not satisfied that the applicant would be perceived to be a Christian or a convert from Islam if he returned to Iran[39].
[39] CB 493 at [41]
In assessing whether the applicant met the complementary protection criterion in s.36(2)(aa), the Tribunal took into account his Christian-related activities in Australia[40]. As it was not satisfied that the applicant had developed a genuine belief or interest in Christianity or that the Iranian authorities would know or become aware of those activities, the Tribunal was not satisfied that he faced a real risk of significant harm on that basis[41]. For these reasons, the Tribunal was not satisfied that the applicant met the criteria for a protection visa under either s.36(2)(a) or s.36(2)(aa) of the Migration Act[42].
[40] Cf, SZTDM v Minister for Immigration & Anor (No 2) [2013] FCCA 2060
[41] CB 493-494 at [46]
[42] CB 494, pars 49-50
The judicial review application
These proceedings began with a show cause application filed on 16 January 2015. At that time the applicant was self represented.
On 2 April 2015, orders were made by consent by a Registrar of the Court, relevantly, granting leave to the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by 30 April 2015, and listing the application for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on 3 March 2016.
On 29 April 2015, the applicant filed with the Court an amended application.
On 23 February 2016, the then solicitors for the Minister filed written submissions for the purposes of the show cause hearing, addressing the grounds of review raised in the amended application.
Shortly before 3 March 2016 the applicant obtained assistance from counsel, and sought leave to file and serve a proposed further amended application, raising constitutional issues that were said to be relevantly identical to issues being raised in proceedings then pending before the Full Court of the Federal Court of Australia[43].
[43] AMF15 v Minister for Immigration NSD 1291 of 2015; NSD 595 of 2016
In the circumstances, on 3 March 2016, orders were made by consent, relevantly:
a) vacating the show cause hearing and dispensing with the requirement for a hearing under rule 44.12;
b) granting leave to the applicant to file and serve a further amended application by 31 March 2016;
c) providing for a time-table for the filing and service of other documents;
d) adjourning the proceeding pending the outcome of the decision in AMF15; and
e) requiring the applicant to notify the Court within seven days of the outcome of that decision.
A further amended application, titled “amended application” (the further amended application), was subsequently filed on behalf of the applicant, although not until 6 June 2016.
In the meantime, the Full Federal Court gave judgment in AMF15 v Minister for Immigration[44] on 20 May 2016.
[44] [2016] FCAFC 68
The matter came before the Court for further directions on 28 June 2016, when it was listed for hearing on 4 October 2016. Pursuant to directions made earlier, the applicant was required to file and serve his written submissions 14 days before the hearing; ie by 20 September 2016.
On 26 September 2016, the applicant filed written submissions, and gave notice to the Minister that he would seek leave to rely on a proposed second further amended application, which, it was said, “adds grounds four to six, the administrative law grounds equivalent to the constitutional grounds of one through to three”.
At the commencement of the trial of this matter on 4 October 2016 counsel for the applicant sought an adjournment (which had also been foreshadowed on 26 September 2016) for the duration of counsel’s application for leave to appeal against the decision of Gageler J of the High Court in Plaintiff S178A & Ors v Minister for Immigration[45] (Plaintiff S178A).
[45] (unreported)
I gave reasons orally for my refusal of the adjournment and leave sought. The applicant had not complied with procedural orders made in my absence by Judge Barnes on 28 June 2016 in relation to any further adjournment sought. I refused the requested adjournment additionally because the adjournment was sought in order to suspend the Court’s judgment on constitutional issues that had been clearly rejected both in the Federal Court and in the High Court.
As to the leave sought, I was concerned that, as in the case of SZWAR, the applicant was seeking to raise at a final hearing additional grounds which would prolong proceedings and cause prejudice to the Minister. I was further concerned that the Court’s timetable had not been complied with in circumstances where the applicant had had ample opportunity to raise, in accordance with the timetable, all grounds he wished to raise. I was further concerned that the additional grounds proposed to be raised had been raised by the same counsel in other matters in the same terms, without apparent thought as to the strength of the particular grounds by reference to the particular Tribunal decisions.
It was a matter solely for the Tribunal to identify such material as it found relevant to its reasoning and to give that material appropriate weight[46].
[46] Tran v Minister for Immigration [2004] FCAFC 297 at [5]
The Tribunal's conclusions about the applicant's credibility were based on the cumulative effect of the matters to which it referred[47]. Such findings of fact were open to the Tribunal on the basis of the material before it and for the reasons that it gave. In determining whether an applicant has a "well-founded" fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events[48]. The Tribunal's conclusion that the applicant was not credible was a finding of fact par excellence[49]. The Court cannot review the merits of the Tribunal's decision[50].
[47] W148/00A v Minister for Immigration (2001) 185 ALR 703
[48] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282
[49] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[50] Minister for Immigration v Wu Shan Liang op. cit., at 272
While I accept that the Tribunal may fall into error by setting itself up as the arbiter of religion, the strength of the argument that it had done so in the present case was doubtful, and counsel for the applicant conceded that the proposed administrative law grounds were not as strong as the constitutional law grounds.
A consequence is that the Court is left with the constitutional grounds raised in the further amended application filed on 6 June 2016.
Consideration
As explained to me by counsel for the applicant, the applicant accepts that, by reason of relatively recent decisions made by Gageler J in Plaintiff S178A and Flick J of the Federal Court of Australia in ABX15 v Minister for Immigration & Anor[51], he cannot succeed on his further amended application in this Court. However, he wishes to preserve his rights of appeal.
[51] [2016] FCA 855
In the circumstances, it was open to the applicant to make a formal submission as to correctness or otherwise of those judgments. That was done.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 10 October 2016
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