SZWAR v Minister for Immigration
[2016] FCCA 2382
•12 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2382 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a Christian convert in Iran – applicant not believed – whether the Tribunal’s testing of the applicant’s faith offended against s.116 of the Constitution considered – no jurisdictional error. |
| Legislation: Australian Constitution, s.116 Migration Act 1958 (Cth), ss.91R, 414, 424AA, 425, 474 |
| Cases cited: ABX15 v Minister for Immigration [2016] FCA 855 NSWCA 157 Kruger v Commonwealth (1997) 190 CLR 1 |
| Applicant: | SZWAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 205 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application, as amended by leave on 12 September 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 $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 205 of 2015
| SZWAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is an Iranian man who claims to fear persecution in Iran as a Christian convert and for other reasons. He sought judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 22 December 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
At the conclusion of the hearing of the matter on 12 September 2016, I ordered that the application as amended on that day be dismissed with costs fixed in the sum of $5,500. The following are my reasons for those orders.
The following statement of background facts relating to the applicant’s claims and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant is a citizen of Iran who arrived on Christmas Island on 5 July 2012[1]. He applied for a protection visa on 25 August 2012[2]. The delegate interviewed the applicant on 2 September 2012[3]. The delegate refused the visa on 18 July 2013[4]. The applicant applied to the Tribunal for review on 23 July 2013[5]. The Tribunal held a hearing on 31 October 2014[6].
[1] Court Book (CB) 154 [35]
[2] CB 28-88
[3] CB 95.9
[4] CB 89-108
[5] CB 110-115
[6] CB 133-134
The applicant claimed to fear harm in Iran for reason of his political opinion and religion. He claimed to have filmed Bahia weddings and a comedian parodying Iranian leaders at a birthday party, that the Iranian security forces had discovered these recordings, and claimed at the Tribunal hearing for the first time that a court summons had been issued for him. He also claimed at the Tribunal hearing for the first time to have converted to Christianity since his arrival in Australia.
The judicial review application
These proceedings began with a judicial review application filed on 28 January 2015. That application contained seven grounds involving alleged breaches of ss.414, 424AA and 425 of the Migration Act 1958 (Cth) (Migration Act), alleged bias, findings allegedly contrary to s.116 of the Constitution, alleged misapplication of the law or failure to ask the correct question, an alleged breach of the no evidence rule, a failure to take into account relevant considerations and, finally, legal unreasonableness.
On 6 March 2015, I made procedural orders by consent, including an order providing the applicant with the opportunity to file and serve an amended application by 22 May 2015. I also ordered that if the applicant’s amended application purported to identify a matter arising under the Constitution or involving its interpretation, the applicant must file and serve notices pursuant to s.78B of the Judiciary Act 1903 (Cth) by the same date.
On 28 May 2015 the applicant filed Notice of a Constitutional Matter. The constitutional issue identified was whether the Tribunal acted contrary to law by finding that the applicant was not a “genuine” Christian in violation of s.116 of the Constitution. No Attorney-General intervened.
On 29 August 2016 the registry received an amended application which raised the following grounds in substitution for the earlier grounds:
Ground 3(a): The Imposition of Religious Observance in Violation of Limb Two of Section 116 of the Constitution
3(a) 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.
Particulars
a)At [25], the Tribunal ‘asked how regularly he attended in a month.’
b)At [27], the Tribunal ‘asked what he knew of Easter’ and ‘what happened in Easter from Easter Thursday to Easter Sunday given it was the central commemoration of Christianity, he had been a Christian for 18 months and went to church regularly?’ and ‘was asked what else happened given the centrality of the festival to the faith?’
c)At [28], the Tribunal ‘asked if he had explored other religions as part of his spiritual journey?’ and ‘[i]t was put to him that he had been a baptised Christian for two Easters?’
d)At [29], the Tribunal ‘asked why he went to English-speaking churches when he didn't know the language?’ and ‘[i]t was put to him that there were concerns that he didn't know much of the faith because he didn't take instruction in it or go to somewhere where services were conducted in his language’ and ‘asked what he had done to educate himself in his new faith?’
e)At [30], the Tribunal observed ‘[i]t was put to him that it was not a festival but the central feature of Christianity and his lack of knowledge regarding it, or attempt to know anything about it called into question his interest in the faith.’
f)At [31], the Tribunal ‘asked to explain what he knew by this term?’ (Easter).
g)At [48], the Tribunal observed that ‘[w]hale I accept that the applicant has been baptised, I do not accept that the applicant is or would be perceived to be a Christian convert.’
h)At [49], the Tribunal observed ‘[h]e was also unable to enunciate what occurred during Easter other than Jesus was resurrected. Given that it is the most central religious focus for the Christian faith, the fact that he claimed to go to church three weeks out of four and had been a baptised Christian for one Easter is not indicative of someone with even a moderate understanding of the faith they claim to have adopted and would be punished for if they were to return to Iran.’
i)At [50], the Tribunal observed that the applicant ‘had done nothing to educate himself in his new faith and did not attend a church in his own language, preferring to attend a church at Blacktown in a language that he didn't understand.’
j)At [51], in terms of the refugee criterion, the Tribunal observed that the ‘applicant has exhibited a lack of knowledge of the central celebration for Christians, demonstrated very limited effort to learn about his newly adopted religion and, along with the absence of any witnesses who could help to attest to his acceptance of his new faith all lead me to find that his baptism and attendance has been done deliberately for the sole purpose of establishing a refugee claim. As I advised the applicant during the hearing, s.91R(3) requires me to disregard this religious conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim. I have disregarded it as a result.’
k)At [55], in terms of the complementary criterion, the Tribunal observed that ‘I do not accept… that he has any genuine interest in Christianity or has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in Christianity through attending church or religious education or of his baptism, or would be prosecuted as a voluntary returnee or for seeking asylum I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm.’
Ground 3B: The Prohibition of the Applicant’s Free Exercise of Religion in Violation of Limb Three of Section 116 of the Constitution
3(b) the second respondent violated the third limb of section 116 of the Constitution by prohibiting the applicant’s free exercise of religion.
Particulars
a) For the reasons articulated at ground one.
Ground 3C: The Violation of the Free Exercise of Thought, Conscience, Religion or Belief in Violation of the Principles of Customary International Law
3(c) 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.
Particulars
a) For the reasons articulated at ground one.
The applicant required leave to file and rely upon that amended application as it was not filed in accordance with the timetable put in place in the orders made on 6 March 2015.
Nevertheless, the parties prepared pre-hearing submissions in anticipation of argument proceeding on the proposed amended application at the trial of the matter on 12 September 2016.
At the commencement of the hearing on 12 September 2016, counsel for the applicant handed up a proposed further amended application which would have reinstated Grounds 4, 5 and 6 in the original application (although not in identical terms) and indicated that he considered this a necessary step in view of an adverse decision in the High Court on 9 September 2016 in Plaintiff S178A/2016 & Ors v Minister for Immigration[7] (S178A). I refused leave for the applicant to file and rely upon the proposed further amended application because Grounds 4, 5 and 6 had been abandoned in the proposed amended application and the parties had prepared for the hearing on the basis that the only issues were the constitutional and customary international law ones. Further, counsel for the applicant indicated that the proposed further amended application would itself probably need amendment in order to deal with a potential further issue arising from an earlier Tribunal decision concerning a relative of the applicant[8] made on 22 July 2014 in which the Tribunal had stated at [8]-[9]:
On 14 December 2013, before the applicant’s Protection visa application was determined by a delegate of the Minister, a new regulation, the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013, amended Schedule 2 of the Regulations by inserting a new time of decision criterion for Subclass 866 visas. The new criterion, cl.866.222, required that the visa applicant held a visa and was immigration cleared on last entry to Australia and was not an unauthorised maritime arrival.
Relevantly to this application, the amending regulation applied in relation to existing Protection visa applications which had not been ‘finally determined’ before the amending regulation came into effect. I am satisfied that the application by the applicant for a Protection visa was not finally determined at the time the regulation took effect (see Kaur v MIBP [2013] FCCA 2209; Zhang v MIAC [2012] FMCA 1011).
[7] unreported
[8] see RRT Case number 1403265
Counsel for the Minister submitted, and I accepted, that the issue arising in those paragraphs was probably irrelevant because it appeared to relate to Regulations that were not in issue in the present case[9].
[9] it would seem that the relevant Regulations had been disallowed in the interim
The Minister did not oppose the applicant being granted leave to rely upon the amended application and I granted that leave. The hearing proceeded on the basis of that application.
I have before me as evidence the book of relevant documents filed on 2 April 2015.
Consideration
Counsel for the applicant conceded that the grounds in the amended application could not succeed in this Court in the face of prevailing Federal Court authority and that further adverse authority was provided by the decision of the High Court in Plaintiff S178A. The concession made by counsel was properly made in the light of the prevailing authority. That authority is traversed in the Minister’s submissions which I accept.
As held in ABX15 v Minister for Immigration[10], the argument sought to be put concerning s.116 of the Constitution is without substance. In Kruger v Commonwealth[11], 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[12]. 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”[13]. The constitutional test laid down in Kruger directs attention not to the effect of the statutory provision, but to its purpose or object.
[10] [2016] FCA 855 (Flick J) at [8]
[11] (1997) 190 CLR 1
[12] 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
[13] Gummow J in Kruger at 160
As held in ABX15[14], 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[15]. The Tribunal was entitled to test the applicant’s claim to be a Christian[16]. . The Court is bound to follow ABX15 and SZUDI[17]. I had previously deferred to 12 September 2016 an adjournment request pending the outcome of proceedings raising similar arguments in the High Court[18].
[14] at [19]-[20]
[15] ABX15 at [21]-[22]
[16] 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]
[17] 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)
[18] 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[19]. In those circumstances no issue of free exercise of religion or other belief can arise[20].
[19] CB 157 [55]
[20] see similarly AMC15 v Minister for Immigration [2016] FCCA 1458 (Judge Smith) at [15]-[19] and cases there cited
That appears to have been the view taken by Gageler J in the High Court in Plaintiff S178A in relation to the proposition arising out of customary international law.
As there is no jurisdictional error in the Tribunal’s decision, it is a “privative clause” decision within s.474 of the Migration Act.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 13 September 2016
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