FEDERAL COURT OF AUSTRALIA

SZUDI v Minister for Immigration and Border Protection [2015] FCA 530

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file her application for leave to appeal from the orders of the Federal Circuit Court dated 13 February 2015, and filed on 25 May 2015 is dismissed.

2.    The applicant’s application for leave to appeal filed on 12 March 2015 is dismissed.

3.    The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant is a citizen of Iran who arrived in Australia on 2 August 2012 on a student visa. On 11 December 2012, the applicant lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a Protection (Class XA) visa.

2    The applicant claimed that she feared persecution from the Iranian authorities on religious grounds because she had renounced Islam and had converted to Christianity.

3    On 8 August 2013, a delegate of the first respondent rejected the applicant’s protection visa application.

the tribunal

4    On 9 August 2013, the applicant sought review of the delegate’s decision before the Refugee Review Tribunal (the Tribunal). On 26 February 2014, the applicant gave evidence before the Tribunal to support her claims.

5    In short, the applicant said that she had become attracted to Christianity during a trip to South Africa in 2004, and that on her return to Iran she had in 2008 obtained an English language bible from an Italian work colleague. She said that she had read about half a page of the bible every two weeks thereafter. She said she had discussed Christianity with an Assyrian Christian friend but had not gone to church with that friend, because her friend had told her that the authorities checked the numbers at the service every Sunday.

6    The applicant said that in June 2012, the Iranian security authorities had raided her house looking for satellite television receivers; and that during the course of that raid the authorities had found her bible and had taken it away along with her passport, photographs and satellite equipment. The passport had by that time been endorsed with her Australian student visa. The applicant said that she avoided being detained by the security authorities because one of the security officers had taken a liking to her and had permitted her to sign an undertaking that she would stop practising Christianity. The applicant also said that after the raid her supervisor at work had warned her about her responsibility to practise Islam in order to keep her job and that she received numerous threatening telephone calls.

7    The applicant went on to say that she moved into her parents’ house after the raid and her father bribed the authorities to get her passport back before she left for Australia.

8    The applicant also said that after she arrived in Australia in August 2012 on the student visa, she had started attending a church every Sunday and had been baptised in February 2013. The applicant said that since her baptism she was a regular churchgoer.

9    The Tribunal found that the applicant’s evidence in support of her claims lacked credibility and did not find the applicant to be a reliable, truthful or credible witness. The Tribunal referred to a number of aspects of the applicant’s evidence which it regarded as unsatisfactory and which undermined her credibility. One of those aspects related to her claims that she had been attracted to Christianity and had read her bible regularly before she had arrived in Australia in August 2012, and her conversion to Christianity after her arrival in Australia. In this regard, the Tribunal during the course of the hearing, asked the applicant a number of questions about Christianity. These questions included the extent to which the applicant had read the bible and her knowledge of the events of Easter and the Last Supper. The Tribunal also asked the applicant about any efforts which the applicant had made before August 2012, to attend church when she had travelled out of Iran.

10    The answers which the applicant gave to these questions led the Tribunal to conclude that the applicant had not been attracted to or interested in Christianity before she came to Australia and that after arriving in Australia she had “approached the Anglican churches, become baptised and participated in church activities in a calculated and deliberate manner in order to establish a refugee profile”.

11    The Tribunal pursuant to s 91R(3) of the Migration Act, disregarded the applicant’s conduct in Australia and found that the applicant did not have a well-founded fear of persecution on the basis that the applicant had “no interest in Christianity when living in Iran”. However, in assessing the applicant’s claim under the complementary protection regime under s 36(2)(aa) of the Migration Act, the Tribunal had regard to the applicant’s church attendance and baptism in Australia. The Tribunal said:

Because I do not accept that the applicant 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 she has any interest in Christianity through attending church or religious education or being baptised I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

the federal circuit court

12    On 31 March 2014, the applicant commenced an application for judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia.

13    On 13 February 2015, the applicant applied for leave to amend her application for judicial review. The application consisted of six proposed grounds of review. The third proposed ground of review stated:

The second respondent made a series of adverse findings regarding the applicant’s conversion to Christianity which were otherwise contrary to s 116 of the Constitution.

14    There was appended to this proposed ground of review a list of particulars in support of the ground of review. That list of particulars included by reference to each paragraph number in the Tribunal’s reasons for decision, each of the criticisms and adverse findings made by the Tribunal in relation to the credibility of the applicant’s claim to have been interested in Christianity before she came to Australia, and her purpose in attending church and being baptised after having arrived in Australia.

15    The primary judge granted the applicant leave to amend her application for judicial review, other than in relation to proposed ground three.

16    As to proposed ground three, the primary judge held that the proposed ground was unarguable or, in his words, one “only had to look at the argument to reject it”.

the applications before this court

17    There are two applications before this Court, namely, an application for an extension of time to file an application for leave to appeal from the orders of the primary judge to refuse the applicant leave to include ground three in the proposed further amended application, and an application for leave to appeal from those orders.

18    Prior to the hearing of these applications, the applicant issued notices under s 78B of the Judiciary Act 1903 (Cth). By the date of the hearing, all but one of the Attorneys-General of the Commonwealth, the States and the Territories had responded by advising that they did not intend to intervene at the hearing. During argument at the hearing, the applicant contended that the hearing should not continue because the Attorney-General of New South Wales had not responded to the s 78B notice. I declined that application on the basis that there had been a reasonable time within which the Attorney-General of New South Wales could have responded had she so desired.

19    Counsel for the first respondent did not contend that the delay in filing the application for leave to appeal was inordinate or that the explanation for the delay was such that the application for an extension of time should be refused on that ground alone. However, the first respondent contended that neither the application for an extension of time nor the application for leave to appeal should be granted because there was insufficient merit in the applicant’s contention that the primary judge had erred, to warrant either the grant of an extension of time or the grant of leave to appeal.

20    The first question is whether there is sufficient merit in the applicant’s contention that the primary judge’s decision is attended by sufficient doubt to warrant an extension of time within which to apply for leave to appeal.

21    In relation to the question of whether the primary judge’s decision is attended by sufficient doubt to warrant the grant of leave to appeal, the applicant contended that ss 36(2), 36(2aa) and 91R(3) of the Migration Act 1958 (Cth) were constitutionally invalid because those sections had the purpose of imposing religious observance and prohibiting the free exercise of religion, contrary to s 116 of the Constitution. This was because these sections of the Migration Act authorised the exercise by the Tribunal of powers for the purpose of imposing religious observance and prohibiting the free exercise of religion. The applicant said that the Tribunal had exercised those powers to question the manner in which the applicant had practised her faith as a Christian and to impugn the genuineness of her purpose in being baptised as a Christian.

22    In my view, there is insufficient merit in the applicant’s contention to warrant the extension of time for bringing the application for leave to appeal, and, therefore, also to grant leave to appeal.

23    In Kruger v The Commonwealth (1997) 190 CLR 1 at 160, Gummow J observed:

The use of the preposition “for” in the expression in s 116 of the Constitution “for prohibiting the free exercise of any religion” directs attention to the objective or purpose of the law in issue. The question becomes whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved. “Purpose” refers not to the underlying motive but to the end or object the legislation serves.

24    It is obvious that the sections of the Migration Act, which the applicant seeks to impugn, is not legislation for the purpose of imposing any religious observance or prohibiting the free exercise of religion. The purpose of the legislation is to give effect to Australia’s treaty obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and to make provision for the granting of protection visas pursuant to those obligations. It is no part of the purpose of those sections of the Migration Act to impose religious observance or to prohibit the free exercise of any religion.

25    The impugned powers are incidental and have no purpose other than to permit the Tribunal to determine whether an applicant for a protection visa has satisfied the requirements for the grant of such a visa.

26    It follows that the applicant’s application for leave to extend the period of time to file her application for leave to appeal is dismissed. It follows also that the application for leave to appeal is dismissed.

27     The applicant is to pay the first respondent’s costs.

Associate:

Dated:    29 May 2015