FEDERAL COURT OF AUSTRALIA

SZUOJ v Minister for Immigration and Border Protection [2016] FCA 195

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant is a citizen of Egypt. In January 2013 the Appellant and his brother applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. It is only the application made by the Appellant which is now before this Court.

2    The Appellant’s application was refused by a delegate of the Minister in July 2013. The delegate’s reasons for decision record that the now-Appellant “claimed fear of being persecuted or even killed ‘by Islamic community, his family, sheik and authorities, as religious conversion from Islam is not accepted in Egypt’”. The delegate also concluded that the now-Appellant had “embellished his claims in order to achieve a preferred immigration outcome”.

3    An application was made in August 2013 for review by the former Refugee Review Tribunal. The Appellant attended a hearing before the Tribunal in February 2014. The Tribunal in May 2014 affirmed the decision not to grant the protection visa.

4    An application for judicial review of the Tribunal’s decision was then made in August 2014 to the Federal Circuit Court of Australia. That Court dismissed the application in September 2015: SZUOJ v Minister for Immigration & Anor (No 2) [2015] FCCA 2296.

5    A Notice of Appeal was filed in this Court in October 2015.

6    The appeal is to be dismissed with costs.

THE GROUNDS OF APPEAL

7    The Notice of Appeal sets forth 5 Grounds of Appeal – but Grounds 3, 4 and 5 have been abandoned.

8    Only Grounds 1 and 2 remain to be resolved. They state as follows:

1.    The Court Below erred in holding that the findings in paragraph 77 of the Tribunal’s reasons, read in the context of the applicant’s claims, had a logical (and implicitly not an arbitrary or unreasonable) basis.

2.    His Honour should have found that the Tribunal’s conclusions as to the appellant’s credit were affected by arbitrary and unreasonable assumptions and findings as follows:

(i)    That a person who had harboured significant doubts about their own religion and had engaged in a process of reading and spiritual exploration would have investigated other faiths, and not just Christianity.

(ii)    Disengaging from Islam was part of the same process as learning a new faith, and that one cannot make a decision to abandon Islam without reasonable knowledge of a new faith.

(iii)    That the appellant had acquired sufficient knowledge about Christianity by reading on the internet to provide a sound basis for which to conclude that he wished to convert to Christianity before ever having attended a Christian church or being a part of a Christian community.

No reliance was placed upon other potential grounds of judicial review which may expose jurisdictional error such as a denial of procedural fairness.

9    Counsel for the Appellant properly accepted that the decision of the Tribunal was founded upon its adverse assessment of the Appellant’s credit. But, as Ground 2 of the Notice of Appeal expressly recognises, Counsel contended that the findings as to credit “were affected by arbitrary and unreasonable assumptions …”.

10    The paragraphs of the Tribunal’s reasons which it is contended expose these “arbitrary and unreasonable assumptions” include the following:

Applicant’s credibility

72.    I found the applicant’s own evidence about the process through which he claims to have reached the decision to convert to Christianity to be most problematic. I consider that some of his claims were made up; aspects of his evidence were clearly embellished; and some of his claims were internally illogical and inconsistent.

73    The applicant claims to have regularly attended church when living in Malaysia between 2007 and 2009; indeed, he claimed in his protection visa application that he was living “a Christian life” during that time. In assessing the significance of this statement, I have had regard to the explanation provided by the applicant himself at the hearing about what he meant by it. I consider that this is more useful than the gloss sought to be put on the phrase in the s.424A response. In oral evidence the applicant explained that by stating that he was living a Christian life in Malaysia he meant that he was not practising Islam, he was away from Islam and he was attending church; when he looked at his life he felt that he was a Christian without having converted. He no longer believed in Mohamed or Islam, he leant more towards the beliefs of Christianity and the message of Jesus, he felt more a Christian than a Muslim. However, the applicant subsequently explained that he did not regularly attend church for two years after arriving in Australia in 2010 because he was still a Muslim. In my view, the applicant has been unable to provide evidence which reconciles these apparently inconsistent statements …

74.    Furthermore, I find the applicant’s failure to find and attend a church on a regular basis for two years after his arrival in Sydney to be completely inconsistent with the claims that he had regularly attended church in Malaysia, loved it, and lived a Christian life during that period; and that when he subsequently returned to Egypt he felt that he was returning to prison but bided his time in relation to his investigation of Christianity because he knew he was coming to Australia.

75.    I find that the failure of the applicant to locate a church which he was prepared to attend regularly for two years after his arrival in Australia is completely inconsistent with the account he has given of his questioning and departure from the Islamic faith and his growing belief that Christianity was the “right” religion, and his eagerness to explore it more fully. The applicant claims that when he arrived in Australia in June 2010 he was already harbouring significant doubts about Islam and had felt disconnected from the faith for many years; he had been reading information about Islam and Christianity since he was in high school; as discussed above, he claims that he attended church in Malaysia and that he was living a Christian life at that time, and indeed, no longer believed in Mohamed or Islam; and that he viewed coming to Australia as an opportunity to find out more about Christianity. However, the applicant did not make any serious attempts to further explore Christianity until June 2012 when he first attended Hillsong Church, two years after he arrived in Australia. In my view, this delay cannot be reconciled with the applicant’s evidence about his spiritual journey. I find that the applicant did not attend church regularly in Sydney for two years after he arrived here because he did not, in fact, have a genuine and long standing interest in Christianity. I consider that his claims about this are made up.

…

77.    The applicant attempted to explain the delay by claiming that the process by which he cast off his faith in Islam was slow and difficult. I do not accept this explanation. First he said he had not explored any other religions apart from Christianity. In my view, a person who had harboured significant doubts about their own faith for many years and had engaged in the process of reading and spiritual exploration described by the applicant would have investigated other faiths, not just Christianity. Secondly, the applicant suggests that he did not commit to Christianity more quickly because he was still seeking to disengage from Islam, and this took a considerable time. However, as discussed with him at the hearing, I find his account of the process he claims to have gone through to be illogical and implausible. As noted above, he gave evidence that he considered that he was living a Christian life in Malaysia, and that he no longer believed in Mohamed or Islam. He then said that he did not attend church in Sydney for many months because he was still a Muslim. Further, as discussed at the hearing, I consider that the process of disengaging from Islam is part of the same process of learning about the new faith – one could not make the decision to abandon Islam without a reasonable knowledge of the new faith. In my view, this could not be acquired merely by reading material on the internet …

The Tribunal went on to conclude (at para [78]) that the now-Appellant had “not … provided a persuasive account of the path by which he arrived at the decision to become a Christian”.

11    The Federal Circuit Court, in turn, concluded that there was neither arbitrariness nor unreasonableness in the Tribunal’s reasoning.

ARBITRARY OR UNREASONABLE ASSUMPTIONS

12    It was common ground between the parties that jurisdictional error may be exposed where a finding or conclusion is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [38], (2004) 78 ALJR 992 at 998 per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [40], (2010) 240 CLR 611 at 625 per Gummow A-CJ and Kiefel J.

13    It was also common ground that jurisdictional error may be exposed where a decision-maker applies an arbitrary standard or knowledge of religious doctrine: Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599, (2000) 105 FCR 548; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2. In rejecting an argument in WALT that the decision of the Tribunal there in question exposed jurisdictional error by reason of the Tribunal member having assumed the role of “arbiter of doctrine with respect to religion”, Mansfield, Jacobson and Siopis JJ observed:

The conversion ground

[27]    The Tribunal’s reasons indicate that, in concluding that the appellant did not have a well-founded fear of harm for having converted to Christianity because he had not at the age of 11 converted to Christianity, it had regard to what he had done after his claimed conversion in practising and learning about the Christian religion, and it had regard to his lack of any real knowledge of the basic tenets of Christianity.

[28]    In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.

[29]    But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.

[30]    We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his “conversion”, or at the time of the Tribunal’s hearing. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country: cf Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 per Merkel J at 384–385, [11]–[15].

[31]    It was also open to the Tribunal, given the significant consequences of his “conversion” which the appellant asserted, to explore what he had done or learned in the practise of his new religion after age 11. It was his “conversion” which, he claimed, isolated him from his family and his village and made it unsafe to return to the country of his nationality. The issue for the Tribunal was whether the appellant had a well-founded fear of persecution by reason of his religion if he were to return to Kenya. His religious beliefs and practices up to the time of the Tribunal’s decision were relevant. A “conversion” some years ago which did not lead to any real commitment to the new religion thereafter, so that the appellant could not now be found to be a practising Christian, would not be consistent with the appellant’s ongoing claim to be a Christian so that he could not safely return to Kenya.

14    The issue again emerged in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108, (2010) 187 FCR 362. The then Federal Magistrates Court had concluded that a decision of the Refugee Review Tribunal should be set aside. Jurisdictional error, that Court concluded, was exposed by the Tribunal not revealing the identity of a text on Falun Gong used by the Tribunal to test the claimant and to determine that his knowledge of Falun Gong was poor and incorrect. An appeal was dismissed. In doing so, Kenny J observed:

[37]    These authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

With reference to the non-disclosure of the text, her Honour reasoned as follows:

[50]    Although the transcript of the interview became the focus of the Minister’s argument at the hearing of the appeal, the court’s analysis must begin with what the reasons reveal about the Tribunal’s decision. The fundamental difficulty in this case is that there is no reference in the Tribunal’s reasons to any material on which it based its finding that none of the first respondent’s answers were “correct” and the first respondent therefore knew “almost nothing” about Falun Gong belief. Taking the Tribunal’s reasons on their face, it appears that the Tribunal arbitrarily decided the first respondent’s answers were “wrong” without any logical basis to do so. Had there been any “evidence or … other material” on which the Tribunal’s finding regarding the first respondent’s knowledge was based, the Tribunal, aware of its obligations under s 430(1)(d), would presumably have referred to it. The inference arises that the Tribunal’s decision was not based on findings or inferences of fact grounded upon probative material and logical grounds. The question is whether the court should draw this inference, or the contrary inference that the Tribunal’s finding was logically based on probative material to which it has not referred in the reasons.

Her Honour concluded:

[72]    It is, however, unnecessary to go this far. Under the circumstances of the present case, the respondents have met their burden. On the face of the Tribunal’s written statement, the Tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent’s answers; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding. In these the circumstances, it is appropriate to infer that the Tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the Minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the Federal Magistrate did not err in finding jurisdictional error.

Justice Rares also concluded that the appeal should be dismissed. Buchanan J dissented.

15    Subsequently, and after reviewing many of these decisions, Buchanan J in Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159, (2010) 189 FCR 577 observed:

[50]    I take it to be established by the authorities to which I have referred that it is not impermissible, despite the observations of Gray J in Wang, for the RRT to enquire about the depth of knowledge possessed by an applicant for a protection visa when claims for the protection visa are based on the suggested likelihood of persecution for religious reasons. On the other hand, there must be a satisfactorily disclosed foundation from which any conclusion, that adequate knowledge is not held, may proceed. There must also be a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution. The material obtained by the RRT from its examination must not be put to use in a way which is so irrational as to suggest the absence of a proper foundation for the stated conclusions …

His Honour had previously observed:

[44]    … the nature of questioning in some cases may generate concern about a lack of objectivity, or predisposition, on the part of the RRT …

Justice Jacobson dissented. In explaining his concurrence with the conclusions of Buchanan J, Nicholas J concluded:

[83]    If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these “singularly and cumulatively” in support of that finding.

[84]    The other matters relied upon by the Tribunal were logically and rationally capable of supporting the Tribunal’s finding that the respondent was not a witness of truth. Once the Tribunal found, as was open to it, that the respondent was not a witness of truth, it was also open to the Tribunal to hold that it was not satisfied that the respondent was a non-citizen to whom Australia owed protection obligations.

16    More recently, North, Bromberg and Mortimer JJ in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 have summarised the position as follows:

[47]    The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge …

Their Honours further observed:

[50]    The Tribunal is not precluded from developing some scepticism as it performs its task, based on the evidence and other material before it, so long as it also approaches the review of the delegate’s decision with a mind open to persuasion, and goes about its task in a procedurally fair way in accordance with the requirements of the Migration Act and the common law.

Their Honours concluded:

[55]    We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.

17    Building principally upon the reasoning in Wang and WALT, Counsel for the Appellant in the present case contended that the Tribunal’s reasons were “replete with arbitrary and/or unreasonable findings”. By way of example of such a finding, reliance was placed upon the Tribunal’s findings that “a person who had harboured significant doubts about their own religion and had engaged in a process of reading and spiritual exploration would have investigated other faiths, and not just Christianity”.

18    The proposition ultimately advanced on behalf of the Appellant was that the Tribunal could not reject or evaluate evidence except by reference to a standard of behaviour or conduct which was:

    founded upon evidence, be it either evidence adduced before the Tribunal or a standard founded upon the accumulated expertise or experience of the Tribunal which was disclosed to the parties for scrutiny

and could not proceed upon a standard of behaviour or conduct:

    founded upon a personal or subjective opinion or belief of the Tribunal member.

To so proceed would be arbitrary or irrational. But that, it was submitted, was precisely the manner in which the Tribunal in the present case had proceeded – as exposed, most clearly, by para [77] of its reasons for decision.

19    No argument was advanced that the Tribunal in the present case had denied the Appellant procedural fairness. Indeed, the following extract from the hearing before the Tribunal evidences the concern expressed in para [77] of those reasons for decision being exposed to the Appellant for his comment:

Q.    Did you investigate any other religions apart from Christianity?

A.    Um, I did not. I mean, I … I’ve heard about (indistinct) from … from my friends when I was younger that it was a peaceful sort of religion and ah, it’s … you know, its … its message sort of appeals to me a little bit but at the same time, I never really felt that it was holy. I never felt that um, divine um, sense about it as much as I did about Christianity. So ah, no. I didn’t really delve into other … any other religion and while I did study the Old Testament, I do believe that (indistinct) has been delivered, so um, while I do believe in the Old Testament of course, I believe that he’s … is here and that I’m a Christian.

Q.    Um, the other question um, is, you say that you didn’t take steps in Australia um, for quite some time after you arrived, to find a church, and learn about Christianity because you were still detaching from Islam…

A.    Hmmm.

Q.    … but to me it seems that, part of the process of detaching from Islam, is obtaining deep knowledge of another religion that you might be looking to turn to …

A.    Hmmm.

Q.    … so you’re really in a better position to make the decision to detach from Islam, if you’re fully informed about Christianity. Um, I mean I … under your process, you could detach from Islam, then when you come to learn about Christianity, you might think, oh well, that’s not really for me either.

A.    Hmmm. I understand.

20    Although Counsel for the Respondent Minister:

    initially submitted that an arbitrary process of reasoning does not constitute jurisdictional error where the ultimate conclusion or decision of the Tribunal is itself rational and reasonable

the proposition ultimately advanced and relied upon was that:

    a decision was not irrational or arbitrary even if founded upon a standard of behaviour or conduct not discernible from the evidence.

21    It may also be finally noted that it was common ground between the parties that the Tribunal’s decision in the present case would be vitiated by jurisdictional error if it were to be established that such adverse findings as to credit as were made by the Tribunal were founded upon an arbitrary or irrational process of reasoning.

22    Notwithstanding considerable misgivings, it is concluded that the appeal is to be dismissed. It is unnecessary to pursue the submission advanced on behalf of the Respondent Minister.

23    Properly construed, the Tribunal’s reasons for decision – and, in particular, para [77] of those reasons – do not expose the Tribunal applying its own perception or judgement or standard as to what a person who asserts a process of conversion to Christianity should do. All that the Tribunal was doing, and what it sought to explain in its reasons for decision, was exploring whether the Appellant’s assertions were credible.

24    Paragraph [77] of the Tribunal’s reasons for decision, it will be noted, occur in that part of the reasoning process where the Tribunal is assessing what it describes in the sub-heading to those reasons as “Applicant’s credibility”. And that part of the Tribunal’s reasons commences with the Tribunal’s general assessment of the now-Appellant’s credibility. It thereafter goes on to explain, for example in para [73], the inconsistency in the Appellant’s assertion that when he was in Malaysia and prior to his arrival in Australia he “no longer believed in Mohamed or Islam” and his later statement that he did not attend church “for two years after arriving in Australia in 2010 because he was still a Muslim…”.

25    Paragraphs [74] and [75], read as findings leading into the further findings set forth in para [77], and when read in context and in their entirety, it is respectfully concluded, do no more than expose the Tribunal’s misgivings as to the now-Appellant’s credibility. None of those paragraphs expose the Tribunal applying its own “arbitrary” standard by which the Appellant’s conduct was weighed and assessed.

26    Paragraph [77], it must nevertheless be recognised, occasions concern. The finding that the “applicant would have investigated other faiths” certainly has all the hallmarks of a “standard” that the now-Appellant failed to meet. The finding could well have been expressed differently. But read in context, even this finding is no more than a means of testing the conduct under scrutiny. To read para [77] divorced from the context in which it appears, would be to construe the reasons of the Tribunal in an overly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ; Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [59] per French CJ, Bell, Keane and Gordon JJ.

CONCLUSIONS

27    The present appeal is not one in which the Tribunal was questioning, for example, the depth of religious knowledge asserted by the Appellant and assessing that “standard” of knowledge as against a “standard” which the Tribunal was arbitrarily maintaining should be possessed by a person genuinely claiming to have converted to Christianity. The present appeal, by way of contrast, is one in which the Appellant’s credibility was largely being assessed against inconsistency in the answers he was providing.

28    No argument was advanced that the premise of the questioning of the now-Appellant by the Tribunal demonstrated (for example) a predisposition on the part of the Tribunal member as to the manner in which persons who assert a conversion to Christianity should conduct themselves or any lack of objectivity on the part of the Tribunal member. No argument was advanced that the Tribunal, by its questioning, did not retain a mind open to persuasion.

29    The argument advanced for resolution was confined to a claimed arbitrariness or unreasonableness in the reasoning process.

30    Confined in that manner, the reasons provided by the Tribunal do not expose any arbitrariness or irrationality. Irrespective of such reservations as have been expressed in respect to para [77] of the Tribunal’s reasons for decision, there were other matters which led to the Tribunal’s adverse assessment as to the credibility of the Appellant. Those adverse findings as to credit were founded upon the totality of the evidence before the Tribunal.

31    The Federal Circuit Court Judge was correct to reject the comparable argument that was advanced before him.

32    The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    4 March 2016