FEDERAL COURT OF AUSTRALIA

SZRJS v Minister for Immigration and Citizenship [2013] FCA 682

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The appellant is to pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court now continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, I have retained the terminology of Federal Magistrate and Federal Magistrates Court for convenience and because that terminology was current both at the time the impugned decision was made and the appeal was heard.

2    This is an appeal from a decision of the Federal Magistrates Court delivered on 3 December 2012: SZRJS v Minister for Immigration and Citizenship [2012] FMCA 1143 (SZRJS) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (Minister) to refuse a Protection (Class XA) visa to the appellant because it was not satisfied that the appellant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Refugees Convention).

Background

3    The appellant is a Lebanese citizen who last arrived in Australia on 7 August 2010 on his third Sponsored Family Visitor visa. On 5 November 2010 the appellant applied for a Protection (Class XA) visa pursuant to s 36 of the Migration Act 1958 (Cth) (Migration Act). The Federal Magistrate summarises, at [5]-[8], the appellant’s claims made in his visa application and attached statement (Visa Application), his claims before the delegate of the Minister (Delegate) at an interview on 14 October 2011 as set out in the Delegate’s decision record and his claims before the Tribunal at a hearing on 20 March 2012. There is no claim made that that summary is inaccurate.

4    In its reasons for decision given on 21 March 2012, the Tribunal accepted that the appellant’s mother is Christian, his father Muslim, and that he had converted to Christianity in Sydney in 2010 and was baptised in the Antiochian Christian Orthodox Church in June 2011. However, the Tribunal did not accept that the appellant would face a real chance of serious harm for a Convention reason should he return to Lebanon.

5    The Tribunal found that the appellant did not fear being physically harmed, but did fear being isolated, expelled from his family, ostracised and deprived of the opportunity to see his mother as a consequence of his conversion. It found that his evidence did not suggest that violence had ever been perpetrated in his family because of religion, while accepting that there had been serious violence between his paternal uncles as a result of a political dispute 20 years previously. The Tribunal accepted that the father treated the appellant and his siblings harshly and physically disciplined them, however, the Tribunal considered that his family profile and circumstances suggest that the appellant’s father had adopted a tolerant attitude towards religious difference by marrying a Christian woman, allowing his wife and children to associate freely with his wife’s Christian family and by not preventing them from attending church for social and other reasons. It found that his father had not been associated with the Muslim party Harkat Al-Tawhid Al-Islami for over 30 years and despite the violent political fight between his paternal uncles 20 years ago, there does not appear to have been further violence or significant ongoing repercussions for other members of the appellant’s family. The Tribunal said that it appreciated that the appellant’s circumstances as a convert may be different to the circumstances of his mother and her relatives who were born Christians. However, the Tribunal did not accept that the appellant would be forced to convert back to Islam or that he faced a real chance of being killed or severely punished for the reason of his religion if his father or paternal relatives became aware of his conversion. Although the Tribunal acknowledged that Christians are at times victims of sporadic violence, based on the sources it had before it, the Tribunal did not accept that there was a real chance that the appellant will be seriously harmed by way of a fatwa or otherwise by Muslims (armed or not) in his neighbourhood or local area. While the Tribunal appreciated and understood the appellant’s concerns in relation to the possibility of facing isolation and ostracism, the Tribunal was not satisfied that rejection or ostracism by one’s own family or community in this case constituted persecution.

6    In an affidavit affirmed by the appellant on 25 June 2012 (Affidavit) and filed and read in SZRJS the appellant says he was unable to say all that he wanted to say before the Tribunal (or to say it in the “correct manner”) due to the presence of a Muslim interpreter, when he had asked the Tribunal to arrange for a Christian interpreter.

appeal

7    The grounds of appeal to this Court essentially reflect the grounds of appeal to the Federal Magistrates Court, though the grounds are particularised differently in some respects. Both the appellant and the Minister were legally represented before the Federal Magistrate and at the hearing of the appeal to this Court.

8    The applications before the Federal Magistrate and this Court were supported by:

(a)    the Affidavit;

(b)    an affidavit attaching a transcript of the Tribunal hearing held on 20 March 2012 (Transcript). No issue was taken with the accuracy of the Transcript;

(c)    the reasons for decision of the Tribunal dated 21 March 2012;

(d)    the application to the Tribunal for review of the Delegate’s decision in which the appellant nominated that he required an interpreter in the Arabic language with Lebanese dialect. No other requirements were specified. The second page of the material, in which the appellant claims that he requested a Christian interpreter, appears to be missing and its absence has no explanation. The hearing in this Court (as in the Federal Magistrates Court) proceeded on the basis that a request for a Christian interpreter accompanied the application;

(e)    the decision record of the Delegate. That record indicates that at the interview with the Delegate on 14 October 2011, the appellant was assisted by “an accredited interpreter in the Arabic language … although the applicant was willing and able to communicate mostly in English”; and

(f)    the visa application and attached written statement.

Ground 1: Failure of Tribunal to carry out its statutory duty

9    The first ground of the appeal to this Court is that the Federal Magistrate erred in finding that the Tribunal had not failed to carry out its statutory duty. This claim is particularised (a) by denying the appellant a Christian interpreter the Tribunal denied the appellant a real and meaningful hearing; (b) by reference to the Federal Magistrate’s findings at [20]-[24]; and (c) that the proper test is whether the appellant was unable to give all relevant evidence because of the presence of the non-Christian interpreter and that this claim is made out in his evidence provided in the Affidavit.

10    The appellant appeared at a hearing of the Tribunal on 20 March 2012. The appellant deposes in the Affidavit that (errors in original):

After I learned that the interpreter is from the state of Kuwait I felt scared because he is not compatible with my case, and I was surprised as I had already sent a request to the court to have a Christian interpreter.

11    In the Federal Magistrates Court and in this Court argument proceeded on the basis that the interpreter was Muslim. At the beginning of the hearing, the appellant raised with the Tribunal that he had requested a Christian interpreter when he had responded to the Tribunal’s invitation to the hearing. The hearing was conducted without changing the interpreter. From the Transcript, supported by the Affidavit, the following occurred (errors in original):

TRIBUNAL MEMBER: …The Tribunal has allocated an interpreter for you to assist you today in communicating with the Tribunal. Have you understood Mr Interpreter clearly so far?

CLAIMANT (INTERPRETER): Yes.

TRIBUNAL MEMBER: Yes?

CLAIMANT (INTERPRETER): Yes.

TRIBUNAL MEMBER: Okay, that’s good. Mr Interpreter is a qualified interpreter. His role today is solely to assist you and I to communicate with each other.

CLAIMANT: I have a question. When I send fax I have notice here sir.

TRIBUNAL MEMBER: Sorry, what is it that you’re referring to?

INTERPRETER: I will interpret.

TRIBUNAL MEMBER: Yes, okay. Look, we cannot choose what interpreter, however all the interpreters are qualified, they’re professional and experienced, okay? All right? If at any point you think there are any problems, please let me know and we can discuss this issue together. All right? I just want to assure you that all our interpreters, the interpreters are engaged by the Tribunal, they are professional and they are inexperienced [sic], and it’s inappropriate to ask interpreters what religion they are. You can appreciate that it’s…

CLAIMANT: Yeah I know but it is different, that’s why.

TRIBUNAL MEMBER: There are many cases of this nature. Interpreters who assist the Tribunal obviously are aware of the sensitivities of the issues that surround these matters. I appreciate your concern but I just want to assure you that the interpreters are engaged by the Tribunal, they are professional, they are experienced and they are bound by a duty of confidentiality. I just want to again stress that this hearing is confidential. With myself and Mr Interpreter we have an obligation not to say anything about your case outside of this organisation.

CLAIMANT: Okay.

TRIBUNAL MEMBER: So I just want you to feel free to disclose anything that you want to disclose today. Okay? Again stressing the fact that our interpreters or the interpreters that are engaged by the Tribunal are professional, they’re accredited and they’re under obligation to treat the proceedings confidentially. You should feel free to disclose whatever it is you want to disclose today.

CLAIMANT: Okay.

TRIBUNAL MEMBER: The Tribunal also is under the same obligation obviously to treat the proceedings as confidential. While this confidentiality obviously means that you should feel free to say whatever it is that you would like to disclose to the Tribunal, it also means that I have an expectation that you will be disclosing your own evidence in an honest, open and frank manner today. Okay?

CLAIMANT: Yes.

12    In the Affidavit, the appellant said:

(a)    He took the conversation recounted in [11] above to mean that he would not be provided with a Christian interpreter.

(b)    At [4] (errors in original):

“I wanted to say what I see and I hear from Muslims in Lebanon and from some Arab countries through the news in regard to my previous visit to Kuwait in order to defend myself and my case in front of the judge.”

(c)    He was not comfortable in the hearing, his thoughts were confused and the environment was stressful such that he hesitated between completing the hearing or withdrawing. He was unsure whether withdrawal or the timing of the hearing or objecting to the interpreter was legal. He was not legally represented at the hearing.

13    At [6], the appellant set out the specific material he says he wanted to put to the Tribunal and at [7] of the Affidavit, the appellant says (errors in the original):

I wanted to say all of the above but I was not able to say it in a correct manner because of the unsuitable circumstances, given that a Muslim person was attending the session, whether he was religious or not. In addition, I am Lebanese and lived most of my life in Lebanon, in a Muslim society, I understand how they think and what they do, in particular the extremists and fanatic group.

14    At [6] the appellant also said that he wanted to object to the interpreter because he was Muslim but did not because the environment was tense and because he did not want the interpreter to hold a grudge against him, and for the interpreter to tell Islamic groups or the Lebanese government about him because he has spoken against the religion, which the interpreter would consider an insult. He says that he is sure of this because he is “familiar with how Muslims think”.

15    In written submissions, the representative for the appellant set out the relevant statutory framework as s 348(1) and s 360(1) of the Migration Act. However, these provisions are relevant to the Migration Review Tribunal, not the Refugee Review Tribunal. The correlative sections are s 414 and s 425 of the Migration Act which provide so far as is relevant:

414    Refugee Review Tribunal must review decisions

(1)    Subject to subsection (2), if a valid application is made under section 412 for review of an RRT - reviewable decision, the Tribunal must review the decision.

…

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

…

16    It is common ground between the parties that to comply with s 425 the invitation to the appellant to attend an oral hearing for the purpose of giving evidence and presenting arguments must not be a “hollow shell” or an “empty gesture”; the invitation must be “real and meaningful” and this obligation exists whether or not the Tribunal is aware of circumstances which would defeat that obligation: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33] and [37]. The representative of the Minister did not seek to raise the controversy suggested by Graham J in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [212] that SCAR was wrongly decided in finding that s 425(1) required more than compliance with its plain terms. SCAR must still be accepted by me as the guiding principle in light of the comments of French J (as he was then) in Minister for Immigration & Multicultural Affairs v SZFDE at [93]-[94] and Keane CJ and Perram J in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [32] and [73] respectively.

17    It is also common ground between the parties that if a person does not adequately speak English the Tribunal must provide an interpreter of sufficient skill to perform the function of an interpreter. That function is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words an interpreter serves to remove any barriers which prevent or impede understanding or communication. An interpreter provides a means for communication between the applicant, the Tribunal and other participants in hearings in cases where the applicant’s only linguistic capacities are not, on their own, sufficient to that end: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 per Kenny J at [24].

18    The appellant does not claim that the interpreter was unprofessional, unskilled or inaccurate in performing his task at the Tribunal hearing. Rather, the appellant in paragraph (a) of the first ground contends that by failing to provide a Christian interpreter the Tribunal denied the appellant a real and meaningful hearing. Put this way, it is difficult to imagine a circumstance in which the appellant could be successful on this ground. There is nothing in the appellant’s evidence which would suggest that there is a basis for him to be constrained in giving evidence by the presence of a person who is neither Christian nor Muslim. There is no evidence that he had any concerns in relation to the Delegate, the Arabic speaking interpreter who assisted the appellant at the interview with the Delegate or the Tribunal member, in relation to whom there is no evidence as to religious affiliation.

19    There is nothing in the relevant provisions of the Migration Act or to be derived from the case law concerning when an invitation is “real and meaningful” which indicates that the Tribunal has an obligation to cater to all special requirements an applicant might specify; this would not be a legitimate expectation. The Tribunal has no obligation to cater to requests designed to allow the appellant to present his case in circumstances which are ideal from his viewpoint or to create an environment in which the applicant is most at ease. The fact that the appellant was uncomfortable, experienced stress from the environment and was not legally represented is a common experience and would not alone be enough to meet the standard: see NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [51]-[52] per Branson J.

20    Even though the appellant asked specifically for a Christian interpreter, the force of the Affidavit is that his issue is with the fact that he believed that the interpreter was Muslim. Paragraph (c) of the particulars to the first ground is framed in terms that the appellant was unable to give all relevant evidence because of the presence of a “non-Christian” interpreter, but the argument before this Court turned on the fact that the appellant believed that the interpreter was Muslim and this appears to be the kernel of the appellant’s complaint.

21    The Minister submitted, and I accept, that the relevant question is not one of whether the appellant has been treated fairly, but rather whether the process contemplated by Division 4 of Part 7 of the Migration Act has been subverted or stultified by the presence of the Muslim interpreter: see the reasons expressed by Perram J at [78]-[87] of SZNVW, the analysis of French J in Minister for Immigration & Multicultural Affairs v SZFDE adopted by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and the unanimous statements of the High Court in that case at [30]-[32] and applied at [51].

22    The High Court in SZFDE v Minister for Immigration and Citizenship said:

[30]    Part 7 (ss 410-473) of the Act establishes a detailed regime for the review by the Tribunal of particular visa decisions. (Part 8 (ss 474-486Q) provides for Judicial Review.) Division 4 of Pt 7 (ss 422B-429A) lays down the procedure for the conduct of reviews by the Tribunal. This differs significantly from the procedures of inter partes civil litigation. Of these differences, in Minister for Immigration and Multicultural Affairs v Wang Gummow and Hayne JJ remarked:

    "In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision – in this case the grant of a protection visa – and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision."

[31]    The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 "is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with."

[32]    An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.

[Footnotes deleted]

23    To succeed on this ground, therefore, the appellant must establish that he was prevented by the presence of the Muslim interpreter from giving his evidence and presenting arguments such that the decision making process was stultified or frustrated so that the Tribunal erred by proceeding in the presence of that interpreter. While it is possible to envisage circumstances where this might occur, this is not an easy standard to meet.

24    The applicant must be unable, not simply unfit, to give evidence, present arguments and answer questions in the course of the hearing before the Tribunal’s function will be stultified: see SZNVW at [22] per Keane CJ:

In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.

See also Emmett J at [49]:

The Visa Applicant had the opportunity to adduce such evidence as he considered appropriate as to his psychological state and its impact on his demeanour, memory and consistency. The Tribunal was not obliged to conduct an inquiry to discover whether the Visa Applicant might have been able to put his case better or support it with other evidence.

25    In SZNVW, the applicant was mentally impaired, his memory and capacity to recall detail and capacity to engage in discussion were affected but he was found nonetheless to have had an opportunity to adduce evidence as to his psychological state even though he did not run his case as well as he might have. In NAMJ the fact that an applicant may suffer from depression and post-traumatic stress disorder and continued to receive treatment was said to be relevant to, but not determinative of, fitness to participate in a hearing. See also in relation to defects in standards of interpreting: WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]; Perera at [38]-[41], Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [18]; Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [63]-[68].

26    Having regard to these cases, I do not consider that the Federal Magistrate erred when he said at [20] that:

Ultimately, the question is whether the applicant had an adequate basis to be concerned that the interpreter might not fulfil his or her duties, whether of providing an accurate interpretation or of maintaining the confidentiality of the Tribunal’s review process. … Alternatively the applicant could demonstrate that he held subjective concerns of that sort which, although lacking an adequate objective basis, were nevertheless sufficiently strongly held that he could not bring himself to share the detail of his experiences with an interpreter he refused to trust.

27    The Minister says that because there is no issue as to the professionalism or competence of the interpreter, the appellant was not denied an appropriate hearing. The Minister’s representative points out that the appellant gave evidence and answered questions about his claims, he was able to participate in English, he did not mention any continuing concern or reservation about his ability to participate in the hearing nor did he subsequently seek to supplement his oral evidence by providing the Tribunal with a further written statement of evidence or request a further hearing.

28    I will deal with these arguments of the Minister in reverse order. The appellant had very little time to supplement his oral evidence with written material or request a further hearing, as the reasons for decision were issued the next day and the appellant correctly points out that there was no invitation to do so. Even though the appellant did not harp on about his concern over the religion of the interpreter during the hearing, it is not contested that he asked for a Christian interpreter, he did raise the concern at the earliest opportunity and where there is a substantial subjective concern about the interpreter, even if it was not objectively justified, it may well be difficult for an applicant to keep raising the concern or to be blunt about the nature of the concern. The fact that the appellant could participate in English to some extent is not wholly to the point. Kenny J recognised in Perera at [34]-[35] that the circumstances of a Tribunal hearing may necessitate an interpreter even where the applicant can speak English for professional purposes. I do not consider any of these arguments to be determinative of the issue.

29    The most important contention of the Minister is that the appellant in fact gave evidence and answered questions about his claims. Counsel for the appellant argued that the Affidavit is unchallenged evidence and must be accepted. I accept the appellant’s evidence that he was scared, stressed and uncomfortable at the hearing and that he did not say that he objected to the interpreter for the reasons he gave in the Affidavit. However, whether the invitation is “real and meaningful” is to be determined objectively, and the statements in [6] of the Affidavit of what the appellant says he wanted to say must be examined for that purpose. I will deal with the issues in a summary way rather than quoting the Affidavit verbatim.

30    The first issue: The majority of Muslims in Lebanon and other Arab countries do not like other religions; they have a creed of hate and terrorism – see what is happening in Egypt, Iraq and currently in Syria and Lebanon. They regard Christians as polytheists. Christians do not like problems or killing since they are peace loving and tolerant people.

31    These are statements of the appellant’s opinion of the state of inter-faith relations and are not in themselves evidence of facts which would take the Tribunal beyond the issue that the possible reaction of Muslims to his conversion to Christianity is the basis of the appellant’s claimed fear of persecution. The Tribunal does not question the appellant’s fear: only whether it is well founded and for a Convention reason. The implications of inter-faith tensions in Lebanon are explored by the Tribunal with the appellant in a number of interchanges in the hearing, including by reference to independent source material. These statements in the Affidavit have no evidentiary value as to the state of inter-faith relations in Lebanon relevant to the Tribunal’s decision and do not raise an issue not already agitated before the Tribunal.

32    The second issue is that the appellant loved Christians since he was a child, and was looked upon as non-Muslim; Muslims called him the son of a Christian woman and hated him. These statements are materially recorded in section [4] of the Delegate’s decision record which was before the Tribunal.

33    The third issue is that conversion to Christianity is a big insult to Muslims. Muslims might kill, hide or threaten him because he would disclose Muslim secrets and what happens at Muslim meetings. Sharia law would authorise his death as an apostate/infidel. How can he live in peace given he is a convert to Christianity? He is easy to kill at this time. Neither the Lebanese government nor Christian organisations could protect him. He wants to practice his faith freely and publicly, to marry at a church. If he did this, who would protect him from his Muslim relatives and townsfolk, among whom there are extremists and fanatics? Lebanon is a small country and “most people know each other”.

34    The Transcript relevantly records (errors in the original):

TRIBUNAL MEMBER: So why don’t you want to go back to Lebanon?

CLAIMANT (INTERPRETER): I can’t live the life I want in Lebanon, especially after I converted to Christianity. If I were to get married I have to do that secretly and I have to make all my life secretly. And if I made it public to everyone I’m not going to lose my life but I’m going to lose my mother and I’m going to be hated by everyone in the village. And I’m going to be persecuted and expelled. That’s why I have fears.

TRIBUNAL MEMBER: Okay.

CLAIMANT (INTERPRETER): And if they knew I converted religions the Islamic Sharia they can kill me.

TRIBUNAL MEMBER: Okay. Look, on that point, I just wanted to discuss a few things with you. Some of this was raised with you by the delegate. I do understand your point that, you know, there are certain provisions under the Sharia which may adversely affect a convert. However, in the context of Lebanon I haven’t come across any reports of harm against Christian converts. I mean there are other Christian converts and nothing has happened to them. In fact converts from other countries like Egypt and Iraq, they run away to Lebanon because it’s safer for them.

CLAIMANT (INTERPRETER): But they’re not Lebanese. I’m Lebanese and I’ve got relatives who have ties. Everybody knows me over there. And I asked about this point because I wanted to provide some evidence here. Nobody tried to help me. I heard about people who converted and got killed.

TRIBUNAL MEMBER: In fact I have very recent, a very recent report dating back six months ago or so from the Australian Department of Foreign Affairs and Trade, and according to that information the Australian Embassy in Lebanon was not aware of any killings or acts of serious harm perpetrated against individuals in Lebanon who have converted to Christianity.

CLAIMANT (INTERPRETER): I’m not afraid of being killed but there is persecution and there is expulsion and I won’t be able to see my mother, the one who raised me. And I won’t have my religious freedom. I won’t live my life in a free way. Especially in our family there are a lot of problems. They are all associated with parties and there is a brother who killed his own brother.

TRIBUNAL MEMBER: And that’s the one that you referred to at your interview, one of your paternal uncles who killed another paternal uncle about 20 years ago over politics?

CLAIMANT (INTERPRETER): He killed his brother for the sake of politics. Just imagine if someone converts his religion.

TRIBUNAL MEMBER: All right. But you say you’re not afraid of being killed, you’re more concerned about isolation and expulsion and being ostracised, suffering in that way?

CLAIMANT (INTERPRETER): I said that because you said there is no killing for converting religions in Lebanon but there is some sort of persecution. And also, and its similar to the letter I received from the Immigration after the first interview. I might have the fear in my heart but it doesn’t have to be obvious on me.

Shortly after that:

TRIBUNAL MEMBER: Okay. Again something that the delegate put to you and that is, you know, it seems to me that you have this option of being able to relocate to Beirut if you don’t want to live in [name of town]. What’s the problem with that? What’s the problem with being able to relocate to Beirut? You lived there for seven months and lived with your cousins or associated with your cousins.

CLAIMANT (INTERPRETER): Because of the social life living in Beirut and because it’s very expensive to live in Beirut, and if I wanted to work they would ask me what’s your religion and I would have no protection over there.

TRIBUNAL MEMBER: But what’s the problem if you were to work in a Christian suburb or with Christians or amongst Christians? I mean the question of your religion is not going to be an issue.

CLAIMANT (INTERPRETER): I’m looking at the future. They would want to know who I am and what my religion is and if I wanted to get married they would ask me questions. What am I going to tell them about the way I got married? What am I going to tell my uncles? So my life is going to be secret and it’s going to be lived in fear.

After the Tribunal member indicated that he had no further questions, and after some further interchanges, the following interchange occurs towards the end of the hearing:

TRIBUNAL MEMBER: Okay. Look, I’ll have a think about what you said to me today Mr [appellant]. Again let me stress that I need to take all the information that is before me, including information from other sources which I discussed with you.

CLAIMANT (INTERPRETER): I would like to comment about a point that was raised in the Department’s letter?

TRIBUNAL MEMBER: Yep.

CLAIMANT (INTERPRETER): That Lebanon people from Christian and Muslim religions lived together. So I’m not included in that explanation. I actually changed or converted from one religion to another.

TRIBUNAL MEMBER: I appreciate that. I understand. I understand that. Once I’ve made a decision then you’ll be notified by mail. Don’t forget to take your passport. Thank you very much Mr Interpreter.

35    I am satisfied that each of the substantive matters referred to in this third issue were raised at the hearing itself as well as in the Visa Application and in information provided to the Delegate. It is apparent from these Transcript extracts that the appellant felt free to raise the substance of his claim – to fear death or serious harm as a convert/apostate – in detail. He even felt free towards the end of the hearing to raise unprompted his concern that his status as a convert puts him in a different category from those who were brought up as Christians. In answer to questions, he also felt free to raise for the first time his concern about being asked about his religion by prospective employers, his freedom to marry in a Christian church and that he would be obliged to live his life in secret.

36    Counsel for the appellant contends that whether the matters in the Affidavit are sufficient to sway the Tribunal is a matter for the Tribunal. That contention has weight only if there are issues raised in the Affidavit which constitute evidence which was not in substance available to the Tribunal because the process was frustrated or stultified in some way. Otherwise, it would be open to each applicant to seek a rehearing by the simple expedient of filing an affidavit with differently formulated but substantially similar claims or arguments. I am not satisfied that the Affidavit discloses any material evidence or argument of the appellant which was not available to the Tribunal from the hearing and the other materials which the Tribunal’s reasons indicate that it took into account.

37    The Affidavit reflects the concern of the appellant that he did not present his arguments at the hearing in the “correct manner”, he says due to the presence of the interpreter, and the Affidavit appears to be an effort at better advocacy. The appellant entertained similar concerns about his interview with the Delegate, at which he was assisted by an interpreter about whom the appellant raised no complaint. In the course of the Tribunal hearing, the appellant said (from the Transcript):

Everything I said is true and correct. I don’t know why I’m here today. I think I should have been accepted from before. Maybe the way I expressed myself. But everything I said is true and correct.

And later:

I said earlier I shouldn’t be here. I don’t have any doubts about the Department of Immigration’s Officers, maybe the way I expressed myself wasn’t good enough.

38    Given the nature of the appellant’s claims for protection, it is unfortunate that the appellant’s request for a Christian interpreter appears to have gone astray, and that he was not provided with a non-Muslim interpreter, even if that meant that the hearing had to be adjourned. As mentioned above, however, I do not consider that the Tribunal had any obligation to accede to the request for a Christian interpreter, but it is likely that the provision of a non-Muslim interpreter would have given the appellant greater confidence in the Tribunal’s consideration of his application, even if the outcome was not different.

39    In any event, the Tribunal does not have an obligation to enable the appellant to put his case in the manner which the appellant considers to be to his best advantage: that is not the standard. The standard is whether the appellant had a “real and meaningful” invitation to a hearing at which he had the opportunity to answer questions, put arguments and provide evidence. For the reasons set out above I do consider that the Tribunal met that standard. While I accept that the appellant sincerely had concerns about the presence of an interpreter who is or may be Muslim, it is my view that the appellant availed himself of the opportunity to answer questions, present arguments and to give evidence, including unprompted evidence, with the assistance of an interpreter whose professionalism is not in question. I do not consider that the scheme of Division 4 of Part 7 of the Migration Act was frustrated, stultified or subverted. I find that the Federal Magistrate did not err by finding that the first ground was not made out.

Ground 2: Failure to consider all integers of claim

40    The second ground of appeal to this Court is that the Federal Magistrate erred in finding that the Tribunal had not failed to consider all integers of the appellant’s claims. This claim is particularised that: because of his conversion to Christianity, the appellant feared harm from (a) his father, and (b) his father’s family if he returns to Lebanon; the Federal Magistrate found at [29]-[30] that the claims were considered, but on a fair reading of the Tribunal’s decision as a whole, no real consideration was given to these integers of the claims.

41    The essence of this ground is that the Tribunal did not sufficiently take account of the obstacles placed by the father and the father’s family to the practice of the Christian religion by the mother and the children when it made findings that:

(a)     his family profile and circumstances suggest that the applicant’s father had adopted a tolerant attitude towards religious differences by marrying a Christian woman, allowing his wife and his children to freely associate with his wife’s Christian family and not preventing them attending the Roman Orthodox Church for social and other reasons (at [65]) (Tolerance Finding); and

(b)     in the absence of any persuasive evidence to suggest that the applicant’s father or his paternal relatives had adopted a hostile or adverse view of the applicant’s maternal side of the family for religious reasons, the Tribunal does not accept that there is a real chance that the applicant will face persecution, including being killed or severely punished, for the reason of his religion if his father or paternal relatives became aware of his conversion (at [66]).

42    In written submissions, Counsel for the appellant argued that the finding of the Federal Magistrate at [29] that:

The Tribunal based its relevant conclusion on a finding that the applicant’s father had demonstrated religious tolerance in the past and that the applicant’s conversion, although placing him in a situation different from his mother and Christian relatives, would nevertheless not incite his father to persecutory behaviour in light of his previous behaviour.

is based on the false premise adopted by the Tribunal that the appellant’s father had adopted a tolerant attitude. The appellant appears to have abandoned the contention which was argued before the Federal Magistrate that the Tribunal’s findings ignored or failed to appreciate that the behaviour of the appellant’s father upon which the Tribunal relied in reaching its findings occurred at a time when the appellant was still a Muslim.

43    In argument in this Court, Counsel for the appellant cited the following interchanges from the Transcript (errors in the original). For ease of subsequent reference, I have given each question and answer an alphabetic identifier:

A.    TRIBUNAL MEMBER: Okay. Back in Lebanon did you ever attend church or did you go to any Christian functions?

CLAIMANT (INTERPRETER): I went for six to seven times. When I used to go to the church in my mum’s village I was worried that someone might see me and tells my uncle about me. But I wasn’t practising.

B.    TRIBUNAL MEMBER: Okay. What about your mother, did she attend church?

CLAIMANT (INTERPRETER): Occasionally because her situation didn’t allow her to go. She used to visit her family a lot and she used to take care of my grandmother.

C.    TRIBUNAL MEMBER: Okay. But you say that you were influenced by your mother. I’m just interested to know how your mother practiced her faith in Lebanon?

CLAIMANT (INTERPRETER): She used to practice it by the way she treated us and by the way she loved us. My father’s family used to treat her very badly. They used to abuse her. They used to kick her out of the house a lot. Because my father didn’t live in the house for some time so they, they got offensive with her situation.

D.    TRIBUNAL MEMBER: Okay. Is she happy now that your dad is back?

CLAIMANT (INTERPRETER): She lives with him for a reason, because he’s the father of her children. Even my father treated her very badly.

…………

E.    TRIBUNAL MEMBER: Okay. Look, I mean your father and his family were tolerant enough to – well, let’s speak about your father. Your father was tolerant enough to marry a Christian woman who occasionally attends church or associates with her family. You have a close association with her family. They are all Christian. And it doesn’t appear that any problems have arisen with that. Just a second.

CLAIMANT (INTERPRETER): He married her 1983 and he gave her promises that she can keep her religion and she can practice that religion and when the kids grow up you can raise them all, you can stay with them. He didn’t raise us, he didn’t spend time with us. But when she lived with his family she wasn’t able to practice her religion. And she didn’t want to lose her children because she was having problems with them.

Though not relied on by the appellant, this quote concludes:

And we were very close to our grandfather because he was supporting us. My father didn’t used to support us. And I wasn’t able to continue my studies because noone was supporting.

The appellant lastly relied on the following in answer to a question concerning why, having been in Australia on two other occasions, he decided to convert on his third trip:

F.    CLAIMANT (INTERPRETER): Because I find this the appropriate time and I couldn’t wait any more. If you ask me about the freedom that I felt when I was in Beirut, I felt some personal freedom because I suffered a lot with, I suffered a lot by living with my father and my uncles. I was 25 years and they still bashed me. …

44    It is clear at [A.] that the appellant had concerns that his uncle not find out that he attended his mother’s church in her family’s village, but that is not evidence of any adverse action by the father or the father’s family. The evidence at [B.] indicates that the mother did not attend church frequently: her time was taken visiting her family and caring for her grandmother. That is not evidence of impediments by the father or the father’s family to her practice of Christianity. The evidence in [C.] is that the mother was mistreated by the father’s family while she and the children stayed with them, but it is not suggested that this is on a religious basis: there are any number of possibilities for this mistreatment, including the fact that the father appears to have been absent and improvident through much of the marriage. The father’s mistreatment of the mother referred to in [D.] has no cause attributed to it. The appellant’s response at [F.] is evidence only that when he is not in his home town the appellant is free from physical abuse by his father and his uncles, but there is no indication that that abuse is for any reason of religion. All of these matters are referred to under the heading of “Claims and evidence” in the Tribunal’s reasons.

45    It is true that there appears to be no reference in the Tribunal’s reasons to the appellant’s evidence given in [E.]: “But when she lived with his family she wasn’t able to practice her religion”, although other material in that answer is included at [58] of the Tribunal’s reasons. This is the only occasion on which evidence is given that the mother was impeded from practising her religion in any way. The appellant did not expand on it: for instance, it is not clear whether the mother merely felt unable to practice and there is no evidence that she was prevented from practising by means of threats or actual violence. It is also difficult to give any quality to it: the earlier evidence suggests that the mother did not engage much in the formalities of religious practice, but rather she practised in the way she treated people, especially the children. I do not consider that the evidence contained in this sentence alone prevented the Tribunal from the finding that it made in [66] having regard to the weight of the evidence taken as a whole.

46    The full text of [65] and [66] containing the Tribunal’s findings complained of is as follows:

[65]    The Tribunal, however, does not accept that there is a real chance that the applicant will face serious harm for a Convention reason if he were to return to Lebanon. The applicant stated at the hearing that he feared being isolated, expelled, ostracised and deprived of the opportunity to see his mother as a consequence of his conversion. His evidence indicated that he did not fear being physically harmed, including being killed by anyone in Lebanon for a Convention reason. While the Tribunal accepts that his family has experienced problems in the past and one of his paternal uncles had perpetrated serious violence against another paternal [uncle] as a result of a political dispute about 20 years ago, there was no suggestion in the applicant’s evidence that religion was ever a cause of violence in the family. Similarly, while it may be true that the applicant and his siblings were treated harshly and physically disciplined by their father, the applicant’s evidence does not suggest that violence was ever perpetrated against any other member of the family because of religion. While the applicant’s father may have been disposed to act with cruelty towards raising and treating his family, as it was put to the applicant at the hearing, his family profile and circumstances suggest that the applicant’s father had adopted a tolerant attitude towards religious differences by marrying a Christian woman, allowing his wife and his children to freely associate with his wife’s Christian family and not preventing them to attend the Roman Orthodox church for social and other reasons. According to the applicant’s evidence, his father’s association with Harkat Al-Tawhid Al-Islami ceased some 30 years ago and the violent political feud between his uncles in 1991 did not appear to have resulted in further violence or to have had any significant ongoing repercussions for other members of the applicant’s family.

[66]    The Tribunal appreciates that the applicant’s circumstances as a convert to Christianity may be different to the circumstances of his mother and her relatives who were born Christians. However, in view of the applicant’s own evidence at the hearing that he mainly feared isolation and expulsion from his family and the absence of any persuasive evidence to suggest that the applicant’s father or his paternal relatives had adopted a hostile or adverse view of the applicant’s maternal side of the family for religious reasons, the Tribunal does not accept that there is a real chance that the applicant will face persecution, including being killed or severely punished, for the reason of his religion if his father or paternal relatives become aware of his conversion. The Tribunal does not accept that there is a real chance that the applicant will be forced to convert back to Islam. The Tribunal finds that there is no real chance that the applicant will face persecution for the reason of his imputed political opinion or membership of the particular social group of his family. While the Tribunal appreciates and understands the applicant’s concerns in relation to the possibility of facing isolation and ostracism, the Tribunal is not satisfied that rejection or ostracism by one’s own family or community in this case constitutes persecution.

47    The contention that the Tribunal ignored or failed to consider properly the appellant’s claims to fear harm from his father and paternal family members because of his conversion to Christianity cannot be maintained. In the course of its consideration, the Tribunal did note the appellant’s evidence that because of the father’s “attitude and strict treatment” the appellant was unable to show any inclination towards Christianity [25]; despite promises at the time of their marriage that the children would be able to choose their religion, the children were forced to follow Islam and not allowed to mention Christianity in front of their father [26]; he was forced to emulate his father’s religion without believing in it [51]; his brother’s advice that his father would kill him if he discovered the conversion [28]; his father had expressed concern about his stay at his aunt’s home in Sydney [29]; he feared being forced by his father to convert back to Islam and being punished and ostracised (making him an easy prey to fundamentalists) [30]; there were many problems in his family and one of his paternal uncles killed another 20 years ago for political reasons [37], [57]; although the appellant attended events at the church in his mother’s family’s village, he was concerned that his father’s relatives not find out [53]; his mother attended church occasionally but she practised her religion by the way she treated her children and loved them; she visited her family often to care for her mother; during the long periods his father was away, his family took advantage and treated her badly, and even his father treated her badly [54]; if his conversion became known, he would be ostracized, isolated and hated and there was a risk he would not be able to see his parents [56]; while not fearing being killed, he was concerned about expulsion and not being able to see his mother [57]; despite the promise at the time of his parents’ marriage that the children could choose their religion, his father did not support him and his siblings: they were close to their maternal grandfather [58]; he was not treated well by his father and uncles and they used to physically punish him even when he was in his 20s [60].

48    As part of its consideration of the integers of this claim, the Tribunal is entitled to take into account other aspects of the appellant’s evidence: his parents had been married since 1983 and his mother was not required to change her religion. There is no evidence that his father prevented her from practising her religion. The parents continue to live in the same town as the father’s family. The appellant was allowed to associate with his mother’s family at another village and there attended Easter festivities, weddings and christenings; the appellant gave evidence of concern that his uncle not find out, but gave no evidence that this was hidden from his father. He was also free to associate with his mother’s family in Beirut while he was studying. He has visited his mother’s relatives in Australia three times and there is no evidence that this was hidden from his father. While his father was a member of Harkat Al-Tawhid Al-Islami 30 years ago, to the appellant’s knowledge, he has not been involved since the appellant was born. While there was violence due to a political argument between paternal uncles 20 years ago, the appellant provided no evidence of violence in the father’s family or exhibited towards the mother’s family for religious reasons. The Tribunal accepted that the father was a harsh and cruel man. There is no evidence that either the father or the father’s family adopted an adverse or hostile view of the applicant’s relatives on the mother’s side of the family; indeed the evidence is that the mother’s relatives supported the family and he was close to them.

49    The tolerance which the Tribunal attributes to the father is limited. The Tribunal does not assert that there were no barriers placed in the way of the mother or the children to the practice of religion: it can be inferred from [65] and [66] that the Tribunal accepts that the appellant may well be right that he will be ostracised and not be able to see his mother or his family.

50    I am not satisfied that the Tribunal has failed to deal with a clearly articulated argument made by the appellant. Taken as a whole, and without an eye keenly attuned to error, the findings of the Tribunal complained of in this ground were open to the Tribunal and do not reflect a failure to consider the integers of the appellant’s claim. Whether another decision maker, including this Court, might weigh the factors taken into account by the Tribunal differently is not to the point: that would constitute an inadmissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. I do not find that the Federal Magistrate erred in rejecting this ground.

Ground 3: apprehended bias

51    The third ground of appeal was that the Federal Magistrate erred in finding that the Tribunal’s decision was not vitiated by apprehended bias. This claim is particularised that the findings of the Tribunal (that there was no suggestion in the appellant’s evidence that religion had ever been the cause of violence in the family, and that there was no persuasive evidence that the appellant’s father or the father’s relatives had adopted a hostile or adverse view of the maternal side of the family for religious reasons) are not supported by a reading of the evidence in total; the view of a fair minded person acquainted with all of the facts of the case would be that the Tribunal had misunderstood or misrepresented the appellant’s evidence; the Federal Magistrate found at [33] that the claim was “no more than a complaint that the Tribunal did not draw from the evidence the conclusions which the applicant would have wished”.

52    Counsel for the appellant submits that for the Tribunal to so misrepresent the appellant’s evidence as alleged in Ground 3 amounts to apprehended bias.

53    Counsel for both parities relied on the general test for apprehended bias: are the circumstances such that a fair minded and informed person might reasonably apprehend that the Tribunal might not bring or have brought an impartial mind to bear on the decision: NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14] per Allsop J (as he was then) with whose reasons Tamberlin and Moore JJ agreed. They also relied specifically on paragraph [115] of NADH:

By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. … The answer to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.

54    There is no complaint here of conduct of the Tribunal Member in the nature of the conduct complained of at [118] of NADH, for example, cutting off the appellant, demanding direct answers (when answers were in the course of being given) and reflecting a view in the tribunal of a very limited purpose of the hearing. Based on the Transcript, no such claim would be well founded.

55    Counsel for the appellant says that there is no evidence of the conduct of the appellant’s father other than the evidence given by the appellant at [43] and it is at odds with the Tolerance Finding; at best the appellant’s father tolerated his family’s treatment of the mother. Counsel’s submission ignores the evidence given by the appellant in his Visa Application and at the interview with the Delegate to which the Tribunal had access and to which the Tribunal refers in the reasons. Be that as it may, the Transcript extracts at [43] indicate that the father’s family mistreated the mother while she and the children lived with his family during his extended absences. There is no evidence that the father was aware of any of the alleged mistreatment and that evidence does not state that the cause of the mistreatment was religion. I therefore reject this submission.

56    The appellant also contended that the evidence in [43] above does not support the finding at [65] of the Tribunal’s reasons that:

… there was no suggestion in the applicant’s evidence that religion was ever a cause of violence in the family. …

57    I reject this submission also. There is nothing in the Transcript extracts at [43] which is evidence that religion was a cause of violence in the family. The evidence at [F.] is evidence of violence – that the appellant’s father and uncle still bashed him at the age of 25 – but there is nothing there to suggest that it is religiously based. In the whole context of [65] it is clear that the Tribunal accepts that the appellant’s family is not without difficulty and that the father is harsh and sometimes cruel. I accept the Minister’s submission that, read fairly, the Tribunal at [65] acknowledges that serious violence involving his paternal uncles occurred 20 years ago but it related to politics (not religion) and there was no claim of a similarly violent act or event directed to any other family member because of religion.

58    In so far as this ground is based on the Tribunal’s finding that there is no persuasive evidence that the appellant’s father or the father’s relatives had adopted a hostile or adverse view of the maternal side of the family for religious reasons, I reject it for the same reasons as I rejected Ground 2.

59    Counsel for the appellant further argues that the Tribunal’s conclusions are indicative of approaching the task of looking for evidence only going one way, leading to an inevitable conclusion. There is nothing on the face of the Transcript extracts at [43] or in the Tribunal’s reasons which support this submission. There are examples where the Tribunal member put matters to the appellant for the purpose of giving him an opportunity to comment on matters which might have founded an adverse finding: that was his obligation.

60    I find no error in the Federal Magistrate’s rejection of this ground.

Conclusion

61    Having rejected each of the grounds claimed by the appellant, I dismiss this application and order that the appellant pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    11 July 2013