FEDERAL COURT OF AUSTRALIA

SZUVM v Minister for Immigration and Border Protection (No 2) [2017]

FCA 752

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant is a citizen of Nepal. He came to Australia in February 2009 on a student visa (higher education sector visa (subclass 573)) issued under the Migration Act 1958 (Cth) (the Act) for the purposes of undertaking tertiary study in information technology. In September 2009, while a commuter here by rail, he had the misfortune to be assaulted. That particular incident was the subject of a report to the police and has been dealt with, apparently, in the criminal justice system.

2    Another asserted sequel to the incident provides the foundation for a protection visa claim which the appellant came to make to the respondent Minister via the Department on 24 July 2013. At that time, the appellant sought that class of visa under the Act known as a protection (Class XA) visa. A foundation for that claim was an asserted conversion to the Christian faith from his family’s Hindu faith as a sequel to the assault mentioned. The appellant claimed that his parents and their extended family were extreme Hindus, did not want any of the family to go out of that tradition and practice and that he would be expelled from his family and society were he to return to Nepal. He claimed that this would be because of his Christian faith. His further claim was that Christians in Nepal were harassed and intimidated every day by the community.

3    A delegate of the Minister refused to grant the appellant a protection visa on 3 December 2013. The appellant then sought the review of that decision by the then Refugee Review Tribunal, since amalgamated with the Administrative Appeals Tribunal (Tribunal). On 30 June 2014, for reasons given in writing, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa. The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision. On 21 November 2016 that court dismissed, with costs, the appellant’s judicial review application. It is from that order of dismissal that the appellant now appeals to this Court.

4    The grounds of appeal are these:

1.    The Tribunal fell into jurisdictional error by failing to give proper consideration to whether Australia had protection obligations to the Applicant under s.36(2)(aa) of the Migration Act.

Particulars

The Tribunal made findings in relation to whether the Applicant was owed protection obligation under s.36(2)(a) base(d) in part on its decision under s.91R(3) not to have regard to conduct of the Applicant in Australia. That subsection does not apply to considerations under s.36(2)(aa) but the Tribunal did not make a separate determination as to whether taking into account the conduct in Australia would have altered it findings for the purposes of the latter paragraph.

2.    The Tribunal also fell into jurisdictional error by failing to consider the evidence provided by the Applicant.

5    The appellant did not file written submissions, nor did he develop in any detail at all in oral submissions, these grounds of appeal. As I observed to the appellant in the course of the hearing, the first ground of appeal is not a ground which reflects a ground of review upon which he sought judicial review of the Tribunal’s decision in the Federal Circuit Court. To raise it would require a grant of leave.

6    It is always necessary to recall that this Court exercises, in a case such as this, an appellate, not an original, jurisdiction. In other words, the focus of attention is not directly the decision and reasons of the Tribunal but, rather, the orders and the reasons for judgment of the Federal Circuit Court. Accepting this, there can be cases where an error of law in the Tribunal is patent and where even though that error is not drawn to the attention of the Federal Circuit Court, the interests of justice require that the point concerned be permitted to be raised in the exercise of appellate jurisdiction.

7    As I also observed to the appellant in the course of the hearing, each of the grounds of appeal is meaningful in the sense that were they made out in the circumstances of this case, they would provide a basis for allowing an appeal. As to the second ground, that necessarily requires a benign reading, in the sense that it is read as if the Federal Circuit Court should have held that the Tribunal erred by failing to consider the evidence provided by the appellant. As to that second ground, the Minister also raised in submissions an interrogative note as to whether it, too, raised an issue which was not before the Federal Circuit Court.

8    The grounds of the judicial review application were these:

1.    Tribunal fail to address the problems faced by Christian convert in Nepal.

2.    The decision was not made in good faith.

3.    The tribunal fail to provide the opportunity to provide evidence to support my case.

4.    RRT fail to address the Nepali culture & tradition is lot different than Australia. [sic]

9    Again, on a benign reading, judicial review grounds 1 and 4 do, in my view, fall within the umbrella of the second ground of appeal. Indeed, they offer a particularity in respect of that ground, which the appellant was unable himself to offer in his oral submissions.

10    Quite properly, the Minister did not confine his submissions just to taking issue with whether the grounds of appeal could permissibly be raised but, instead, engaged with their merits.

11    Both in respect of grounds 1 and 2 in the notice of appeal, it is necessary, in my view, in the interests of justice to address each of these grounds on their merits.

12    As to the first ground, it is true that the Tribunal does not expressly refer to s 91R of the Act as it stood at the time when it made its decision in respect of the protection visa claim. More particularly, the Tribunal did not expressly address whether or not the exception found in s 91R(3) was applicable. On the findings of fact which the Tribunal made, it was not necessary for the Tribunal to do this. That is because the Tribunal was just not persuaded that the appellant was an adherent to the Christian faith.

13    In SZTKN v Minister for Immigration and Border Protection [2015] FCA 212, I observed, at [13]:

A hearing before the Tribunal is not an examination in advanced theology. To approach it as if it were can sometimes, upon reading a transcript of the proceedings before the Tribunal, lead to a conclusion that nothing that an applicant could say or do would persuade a Tribunal member of the genuineness of their claim to make particular religious belief or other belief.

Special leave was subsequently refused: SZTKN v Minister for Immigration and Border Protection [2015] HCASL 92.

14    See also as to this, like observations earlier made by me in SZLYK v Minister for Immigration and Citizenship [2008] FCA 1708 at [17], special leave subsequently refused: SZLYK v Minister for Immigration and Citizenship [2009] HCASL 72.

15    This same thought occurred on an initial reading of the Tribunal’s reasons. I do not have in the appeal book a transcript of the proceedings, only the Tribunal’s recitation in its reasons of the course of proceedings, together with the Tribunal’s resultant conclusions of fact. Further, it is not a ground of appeal that the questioning by the Tribunal was of such detail in relation to the tenants of the Christian faith as necessarily to give rise to an inference that nothing that the appellant could say or do would dissuade the Tribunal from rejecting his claim, thus giving rise reasonably to an apprehension of bias. When such a claim is advanced, it is always a matter of degree, with a need for principled restraint in the exercise of judicial power firmly to be born in mind. That is because, for all of the reasons given by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35] – [36], this Court is emphatically not concerned with the merits of a protection visa claim, only with the legality of the Tribunal’s decision and, more specifically, whether any error of law as to that legality has been made by the Federal Circuit Court.

16    The critical passage in the Tribunal’s reasons is [26]:

Having considered these claims I am not satisfied that the Applicant does, in fact, face serious harm in Nepal in connection with Christian religion, for the following reasons:

•    As put to him at the hearing, the information before the Tribunal casts doubts as to the credibility of his claim that he is, in fact, now a Christian. Despite his claim that he began attending a church soon after his arrival in Australia in 2009, that he attended a Bible study class for some time and that he regards it as important to know the Bible before being baptised, it was apparent from his responses to questions put to him on this subject that he knows virtually nothing at all on this subject. I note in this context that while his protection visa application statement quotes a passage from the Gospel of Mark (in support his claim that he would be prevented from proselytizing in Nepal) and he asserted at the hearing that Mark is his favourite part of the Bible he was unable to provide any information at all about this Gospel. After five years of alleged church-going in Australia he has not been baptized and his responses gave no indication that he either sees baptism as particularly important or that he has any plan to take this step. While he was able to make some generally accurate comments about basic elements of the Eucharist and Christ’s mission to the world, he was clearly ignorant of such significant matters as the meaning of Easter or Christmas or the relationship of the Western calendar to Christ’s birth. Taking these matters together, while I accept that he may have attended Christian churches in Australia on a number of occasions, possibly in the company of his aunt and uncle (who are themselves Christians) I am not satisfied that he is, in fact, a Christian himself or that he has converted away from the Hindu religion in which he was raised. Nor am I satisfied there is any reason to believe that he would seek to practise Christianity on return to Nepal, including by attempting to proselytize.

•    Even if I were to accept his claim that he has converted from Hinduism to Christianity since arriving in Australia (and I do not accept that he has done so) I am not satisfied that the information before the Tribunal indicates he would suffer serious harm in Nepal for such a reason. As put to him at the hearing, while there are reports of sporadic incidents of violence against the country’s Christian minority, including from Hindu extremists, the authorities have taken strong action to protect them. The Christian minority is growing rapidly, with over 1000 churches in the country. While proselytizing is prohibited it is not illegal to change one’s religion and those who have converted to Christianity feel no need to hide the fact. I note and accept the evidence of the Applicant’s uncle to the effect that the process of conversion places strains on new Christians in Nepal, an understandable difficulty for those who choose to leave the faith of their ancestors and community. However, in the light of the information before the Tribunal I am not satisfied that the Applicant would experience more than rejection and ostracism by his family and immediate community for such a reason. Nor am I satisfied it is plausible that, as an adult, he would be beaten by his father for this or any other reason, even if his family are extreme Hindus and prominent in their caste association. I am not satisfied that he would face a real chance of serious harm on return to Nepal if he had, in fact, converted to Christianity.

17    The findings of fact made in the first dot point were reasonably open. Those findings, together with the reasons which precede them, disclose a comprehensive engagement with the basis of the protection visa claim as made by the appellant. On those findings, there was no need for the Tribunal to proceed to consider s 91R(3). That need would only have arisen if the Tribunal were persuaded that, while in Australia the appellant had converted to the Christian faith. The Tribunal found the contrary. The second dot point in [26] discloses that the Tribunal quite properly posed the “What if I am wrong?” question.

18    The learned Federal Circuit Court judge found that the basis for the visa claim had been considered by the Tribunal. I agree. That is enough to dispose of the second ground of appeal and the finding of fact in the first dot point under [26] of the Tribunal’s reasons disposes, necessarily, of the first ground of appeal. It necessarily follows that the appeal must be dismissed.

Associate:    

Dated:    5 July 2017