FEDERAL COURT OF AUSTRALIA

SZVVZ v Minister for Immigration and Border Protection [2016] FCA 922

ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from the decision of the Federal Circuit Court of Australia in SZVVZ v Minister for Immigration and Border Protection & Anor [2016] FCCA 1077 on 6 May 2016. The primary Judge dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal).

Background

2    The appellant is a citizen of Bangladesh who first arrived in Australia in June 2012 on a temporary work and holiday visa. His visa was valid until 27 June 2013, and on 26 June 2013 he applied for protection under the Migration Act 1958 (Cth) (the Act).

3    The basis for the appellant’s claim for protection was that he had converted from Islam to Christianity, and that he would suffer harm from persecution if he returned to Bangladesh as a Christian. He claimed that he had returned to Bangladesh during the time of his visa and informed his family that he had converted to Christinaity, and that their reaction was that of horror and rejection. He then returned to Australia, and continued attending Church. He claimed he feared that if he returned to Bangladesh he would be harmed and abused by the general Muslim population as a converted Christian.

4    The appellant submitted to the Department documents including a psychosocial report (which diagnosed him as meeting diagnostic criteria for Major Depressive Disorder with some delusional thinking, poor memory and poor concentration) and supporting letters from the Salvation Army and Jehovah’s Witnesses. He also gave evidence to the Tribunal about his worship as a Christian.

5    The Tribunal noted that it had also received anonymous allegations concerning the appellant, asserting that his story of being a Christian was fraudulent.

6    The appellant appeared before the Tribunal with the assistance of an interpreter and gave detailed evidence. The nature of his evidence and the questions asked by the Tribunal at the hearing are set out by the Tribunal over a number of pages of its reasons. The Tribunal also noted that it received a submission from the appellant’s advisor after the hearing setting out further information.

7    The Tribunal accepted that the appellant was raised in the Muslim faith and that his family was devout. However it doubted his claim that he had embraced the Christian faith by June 2013 as he claimed and that he had told his family during his return visit to Bangladesh. The reasons the Tribunal gave for this view can be summarised as:

    On the appellant’s evidence, by the time he left Australia for Bangladesh the sum total of his claimed exposure to Christianity in Australia was one visit to an Adventist Church and a few visits to a Jehovah’s Witnesses church. The Tribunal was not satisfied that the brief duration of this activity, the few occasions on which he actually attended these churches and the fact that he ceased any attendance early in 2013 were consistent with him either becoming a Christian in any meaningful sense or him thinking of himself as a Christian by June 2013. The Tribunal noted the marked vagueness of the appellant’s evidence in respect of his activity in this regard.

    The Tribunal was not satisfied that it was at all credible that the appellant could have returned to Bangladesh intending to remain there for the rest of his life as a convert to Christianity without understanding the difficulties this would create for him. The Tribunal noted that the appellant was an educated and mature person, and could not have been under any misapprehension about his family’s likely reaction to news that he had converted. Further, the appellant’s claims that he was mentally disordered in Australia were inconsistent with his evidence that at the time he was dealing with a migration agent, able to make the arrangements for his return, and working in a restaurant.

    The Tribunal also noted that while his family’s rejection of his conversion to Christianity could have been a possible explanation for his return to Australia after only a brief stay in Bangladesh, it was also likely that he wished to return to Australia before his visa expired. The Tribunal considered it likely that the appellant was in discussion with his migration agent well before his departure for Bangladesh. Accordingly the Tribunal was not satisfied that the appellant informed his family of his conversion to Christianity or that he was ostracised by them for that reason.

    The Tribunal noted the appellant’s claims that he began attending the Salvation Army church after his return to Australia, but considered that this activity was undertaken for the purposes of strengthening his claim to be a refugee and, as required by s 91R(3) of the Act, disregarded this conduct.

    The Tribunal gave no weight to the anonymous information sent to it in relation to the appellant.

8    In relation to the evidence that the appellant was suffering from mental health issues, the Tribunal said:

Having had the opportunity to observe the Applicant at some length at the hearing I accept that he appeared nervous and mildly agitated at some points. Some questions had to be put to him more than once before he was able to understand them. Nevertheless, he retained his composure throughout the hearing and, once he had understood the questions put to him, had little difficulty in responding to them. Overall, I consider that he was able to participate effectively in the hearing and that he was not prevented by any emotional, mental or cognitive difficulties in responding to questions and articulating his claims to fear harm in Bangladesh.

9    The Tribunal concluded that it was not satisfied that the appellant had converted to Christianity at the time he returned to Bangladesh, that he was rejected and ostracised by his family for that reason, or that he had converted to Christianity following his return to Australia. Accordingly, the Tribunal was not satisfied that there was a real chance the appellant would suffer serious harm in Bangladesh for the Convention reason of his religion and that the appellant was a person in respect of whom Australia had protection obligations pursuant to s 36(2)(a) of the Act.

10    Further, the Tribunal was not satisfied that the appellant met the criterion in s 36(2)(aa), namely being a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Specifically the Tribunal said:

As noted, I am not satisfied that the Applicant had, in fact, abandoned his Islamic faith and converted to Christianity at the time he returned to Bangladesh in June 2013. Nor, having carefully considered the information before the Tribunal concerning his involvement with the Salvation Army from August 2013 to the present, am I satisfied that he has now converted to Christianity …

…

In light of the information before the Tribunal I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Bangladesh there is a real risk that he would suffer significant harm as defined in s. 36 (2A). There is no suggestion that he satisfies s. 36 (2) on the basis of being a member of the same family unit as a person who satisfies s. 36 (2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s. 36 (2).

Federal Circuit Court

11    An application for a Constitutional writ was made to the Federal Circuit Court on 23 July 2014 for review of the decision of the Tribunal.

12    The grounds of the application in the Federal Circuit Court were:

1.    The Tribunal failed to consider the applicant’s claim under s 36(2)(aa) of the Act, either at all or in any real sense, or alternatively acted irrationally or unreasonably.

Particulars

a.    In breach of s 430(1)(b) of the Act, the Tribunal failed to give reasons for its decision that it was not satisfied that the applicant had converted to Christianity following his involvement with the Salvation Army from August 2013 onwards: cf. Tribunal’s Decision at [44].

b.    The Tribunal found that the applicant’s activity with the Salvation Army began in August 2013: Tribunal’s Decision at [35].

c.    The Tribunal found that letter provided by the applicant from a range of Salvation Army officers, and the applicant’s “certificate of adherency” indicating that the applicant became an adherent member of the Salvation Army on 12 October 2014 were “an accurate reflection of his involvement in the activities of the Salvation Army”: Tribunal’s Decision at [34].

d.    The Tribunal found that “those who have written supporting letters believe, variously, that [the applicant] is ‘seeking to develop his understanding of the Christian faith,’ has ‘..given testimony to a faith in Jesus Christ and is now considered to be a Christian,’ is ‘growing in understanding of the Christian faith and the ethical standards that are central to it,’ is ‘..a brother in Christ’ and that his Christian faith has been seen to grow in the time he has been at Hurstville Salvation Army”: Tribunal’s Decision at [36].

e.    In light of these findings, the following statement from the Tribunal reveals that the Tribunal erred in failing to consider either at all or in any real sense, or acted irrationally or unreasonably in considering, whether the applicant had converted to Christianity following his involvement in the Salvation Army church in Hurstville from August 2013 onwards (Tribunal’s Decision at [44]):

Nor, having carefully considered the information before the Tribunal concerning his involvement with the Salvation Army from August 2013 to the present, am I satisfied that he has now converted to Christianity.

13    Before the Federal Circuit Court both the appellant and the Minister were legally represented.

14    After setting out relevant material the primary Judge continued:

13.    It is clear that the Tribunal was engaged in an intellectual process of deliberating upon the applicant’s claim of conversion to Christianity in applying the criteria in respect of complementary protection …

14.    The above reasons of the Tribunal are a proper genuine and realistic consideration of the applicant’s claims in respect of Christianity. The first way in which counsel for the applicant sought to develop a jurisdiction error is, for the above reasons, without substance. It cannot be said that the Tribunal ignored relevant material in relation to the applicant’s claims of Christianity. It is clear that the Tribunal took into consideration the applicant’s claims concerning Christianity in making adverse findings that were open to the Tribunal on the material before the Tribunal.

15.    The second ground advanced by counsel for the applicant was that the finding by the Tribunal that it was not satisfied that the applicant had converted to Christianity since his return to Australia was irrational or unreasonable. The substance of the argument by counsel for the applicant focused upon the documentary materials supporting the applicant’s alleged conversion. This is a case where the Tribunal made adverse findings in relation to the applicant’s credit that were open to it.

16.    Those adverse findings were ones which, in those circumstances, it was open to the Tribunal to make the finding that it was not satisfied that the applicant had genuinely converted to Christianity since his return to Australia. This finding cannot be said to lack an evident and intelligible justification. The adverse finding by the Tribunal in relation to complementary protection cannot be said to be unreasonable or irrational. The application fails to make out any jurisdiction error. The application is dismissed.

Appeal to the Federal Court

15    This morning the appellant appeared in person with the assistance of an interpreter. The Minister was legally represented.

16    The appellant had not filed written submissions, but had made a number of oral submissions in which he asserted that he was in the process of seeking legal representation and that he had a number of medical problems. The appellant also tendered a copy of a letter from the New South Wales Bar Association dated 8 August 2016 in which the New South Wales Bar Association appeared to be responding to a letter from the appellant dated 5 August 2016, and said that it was unable to provide assistance for Court proceedings at such short notice. Further, the appellant produced a copy of a letter dated 4 August 2016 in which he sought assistance from Legal Aid New South Wales.

17    To the extent that the appellant sought an adjournment of the proceedings to permit him to obtain legal advice I refused that application. I pointed out to the appellant that:

    more than three months had passed since the decision of the Federal Circuit Court;

    the proceedings constituted his appeal from the decision of the Federal Circuit Court; and

    it was apparent that he had only pursued avenues to seek pro bono legal advice at the end of last week.

18    Further, there was no evidence before me that there was any prospect that he would obtain legal assistance: Zaoui v Minister for Immigration and Citizenship [2012] FCAFC 70 at [4].

19    In relation to the appellant’s claim that he was unable to concentrate because of his medical health problems there was no evidence before me of this, although I note the evidence before the Tribunal.

20    The Court recognises the difficulties faced by litigants in person, in particular in the migration jurisdiction. In the circumstances however I was unable to see any utility in postponing the hearing.

21    The grounds of appeal before the Court are as follows:

1.    That His Honour erred in finding at [14] of the reasons of judgment that the Tribunal gave a proper genuine and realistic consideration of the Appellant’s claims in respect of Christianity, by failing to consider or give reasons to show that it His Honour had considered grounds 1.c and 1.d of the grounds of review and the evidence contained thereof in the application for review to the Federal Circuit Court of Australia dated 17 December 2014, namely:

a.    Ground 1.c- the Tribunal found that letter provided by the applicant from a range of Salvation Army officers, and the applicant’s “certificate of adherency” indicating that the applicant became an adherent member of the Salvation Army on 12 October 2014 were “an accurate reflection of his involvement in the activities of the Salvation Army”;

b.    Ground 1.d- the Tribunal found that “those who have written supporting letters believe, variously, that [the applicant] is ‘seeking to develop his understanding of the Christian faith,’ has ‘.. given testimony in understanding of the Christian faith and the ethical standards that are central to it,’ is ‘.. a brother in Christ’ and that his Christian faith has been seen to grow in the time he has been at Hurstville Salvation Army”.

2.    That His Honour erred in finding at [15] and [16] of the reasons of judgment that the adverse findings in relation to the Appellant’s credit were open to the Tribunal to make in the Tribunal’s conclusion that the Appellant had not genuinely converted to Christianity, by failing to consider or give reasons to show that it His Honour had considered grounds 1.c and 1.d of the grounds of review and the evidence contained thereof in the application for review to the Federal Circuit Court of Australia dated 17 December 2014, namely:

a.    Ground 1.c- the Tribunal found that letter provided by the applicant from a range of Salvation Army officers, and the applicant’s “certificate of adherency” indicating that the applicant became an adherent member of the Salvation Army on 12 October 2014 were “an accurate reflection of his involvement in the activities of the Salvation Army”;

b.    Ground 1.d- the Tribunal found that “those who have written supporting letters believe, variously, that [the applicant] is ‘seeking to develop his understanding of the Christian faith,’ has ‘.. given testimony in understanding of the Christian faith and the ethical standards that are central to it,’ is ‘.. a brother in Christ’ and that his Christian faith has been seen to grow in the time he has been at Hurstville Salvation Army”.

3.    That His Honour erred in finding at [15] and [16] of the reasons of judgment that the adverse findings in relation to the Appellant’s credit were open to the Tribunal to make in the Tribunal’s conclusion that the Appellant had not genuinely converted to Christianity, by failing to:

a.    Failing to refer to the finding by the Tribunal that the Appellant’s involvement in Christianity had been undertaken only for the purpose of strengthening his claims to be a refugee;

b.    Failing to consider that the finding by the Tribunal that the Appellant’s involvement in Christianity had been undertaken only for the purpose of strengthening his claims to be a refugee, should not have been made;

c.    Failing to consider that the finding by the Tribunal that the Appellant’s involvement in Christianity had been undertaken only for the purpose of strengthening his claims to be a refugee, should not have been made by reason of grounds 1.c and 1.d of the grounds of review and the evidence contained thereof in the application for review to the Federal Circuit Court of Australia dated 17 December 2014 namely:

i.    Ground 1.c- the Tribunal found that letter provided by the applicant from a range of Salvation Army officers, and the applicant’s “certificate of adherency” indicating that the applicant became an adherent member of the Salvation Army on 12 October 2014 were “an accurate reflection of his involvement in the activities of the Salvation Army”;

ii.    Ground 1.d- the Tribunal found that those who have written supporting letters believe, variously, that [the applicant] is ‘seeking to develop his understanding of the Christian faith,’ has ‘.. given testimony in understanding of the Christian faith and the ethical standards that are central to it,’ is ‘.. a brother in Christ’ and that his Christian faith has been seen to grow in the time he has been at Hurstville Salvation Army”.

22    Orders sought:

1.    An order that the appeal be granted;

2.    The Minister pays costs and;

3.    Any other order that the Court sees fit.

23    Turning now to those grounds of appeal, I am satisfied that they are unmeritorious and disclose no error in the reasoning of the primary Judge.

24    In relation to ground 1, the appellant asserts that the primary Judge failed to properly consider grounds 1.c and 1.d of the grounds of review before the Federal Circuit Court. This ground of appeal is not substantiated in circumstances where:

    grounds 1c and 1d were particulars referable to a broader claim that the Tribunal had failed to consider the appellant’s claim under s 36(2)(aa) of the Act, or alternatively acted irrationally or unreasonably; however

    the primary Judge noted that the Tribunal had made adverse findings as to the appellant’s credibility, and in particular that the Tribunal was not satisfied that the appellant had had more than a minor contact with Christianity before he left Australia to return to Bangladesh or that the appellant had converted to the Christian faith;

    These issues were specifically referable to the appellant’s claims concerning his engagement with the Salvation Army and his alleged conversion to Christianity in grounds of review 1c and 1d;

    The primary Judge also considered these issues in the context of the Tribunal’s examination of s 36(2)(aa) of the Act; and

    The primary Judge concluded that the reasons of the Tribunal were a “proper genuine and realistic consideration of the appellant’s claims in respect of Christianity” and that it could not be said that the Tribunal ignored relevant material in relation to the appellant’s claims of Christianity.

25    While his Honour’s reasons may not have been lengthy, they adequately addressed grounds of review 1c and 1d. As the Full Court observed in New Zealand v Johnson [2011] FCAFC 2 at [103], referring to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280:

The obligation to give reasons does not require lengthy or elaborate reasons (Soulemezis at 280D). The essential ground or grounds upon which the decision rests should be articulated (Soulemezis at 280D).

26    For the same reason I consider that ground of appeal 2, which also relies on grounds of review 1c and 1d before the primary Judge, is without merit.

27    Ground of appeal 3 must fail because:

    the Tribunal found that the appellant’s engagement with the Salvation Army on his return to Australia was for the purpose of strengthening his claim to protection under the Act.

    this was a finding of fact, appropriate for the decision-maker under the Act (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), and it is not for the primary Judge to find that the Tribunal should not have made that finding.

    the factors referred to in ground of appeal 3 and the relevant grounds of review before the primary Judge relate to the manner in which the Tribunal weighed the material before it. Again, the process of weighing facts is a matter for the Tribunal: Wu Shan Liang.

28    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    9 August 2016