FEDERAL COURT OF AUSTRALIA

SZVTC v Minister for Immigration and Border Protection [2018] FCA 824

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed in the lump sum of $5,200.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The appellant appeals from orders made in the Federal Circuit Court on 7 December 2017, dismissing his application for judicial review of a decision made by the (then) Refugee Review Tribunal. The Tribunal’s decision was made on 31 October 2014. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa.

2    For the reasons set out below, the appeal must be dismissed.

Background

3    The background to the appellant’s claims, and the way they have been considered by a delegate of the first respondent and the Tribunal are set out in the reasons for decision of the Federal Circuit Court: see SZVTC v Minister for Immigration and Another [2017] FCCA 2793. I do not repeat what is contained in those reasons, unless it is necessary to explain why I consider the appeal must be dismissed.

4    The Tribunal had accepted that the appellant was, at the time of its decision, a 52 year old Indian national who came from a particular region in India, where his wife and children still resided. The Tribunal accepted that that area was close to an area of communal riots in 2009. The Tribunal accepted that the appellant had travelled from India to New Zealand in August 2009, and had remained in New Zealand until January 2013. The Tribunal also accepted the appellant had previously visited New Zealand in March and April 2009. The Tribunal accepted the appellant had returned to India in January 2013 and had remained there until he came to Australia in August 2013 on a visitor visa. The appellant had applied for a protection visa in November 2013, which had been refused by a delegate of the first respondent in March 2014.

5    Beyond these matters, the Tribunal did not accept most of what the appellant told it, whether by way of a narrative of what had occurred to him in the past, the nature of his claims and fears about what would happen to him on his return to India, or the nature of his claims about what had happened to other family members such as his wife. In other words, the Tribunal comprehensively disbelieved the appellant on almost every matter that was material to his claim to be entitled to the grant of a protection visa.

6    It appears that the appellant was unrepresented before the Tribunal, although he was represented before the Federal Circuit Court. He is again unrepresented on the appeal to this Court. In its reasons at [4] the Federal Circuit Court summarised the claims that had been made by the appellant in a way that I consider is accurate:

The applicant was born in [redacted], Trivandrum and claimed to be a Catholic Christian who was raised by Catholic parents. As summarised by the Tribunal, the applicant relevantly made the following claims:

a)    he feared harm from Muslim extremists if he returned to India because of his religion;

b)    on 17 May 2009, there was a communal riot between Christians and Muslims in the Cheriyathura-Beemapally coastal area on the outskirts of the capital city of Kerala. An irate group from Beemapally came to Cheriyathura and attacked Christians;

c)    although he lived in Poonthura, at the time he had been staying in the border area of those two suburbs. He was attacked in the riot, his house was destroyed and his wife was injured. Following the communal riot, he was subjected to further attacks by the same “Muslim fanatics” on 20 July 2009 and on 15 June 2013;

d)    he was a witness for the police and as a result of his statements, Muslim fanatics were after him and wanted to kill him;

e)    he realised he could not stay at home and he had to keep moving to find a suitable place to live, but the fanatics were hunting to kill him. He had to come to Australia to seek asylum; and

f)    he lived in New Zealand from August 2009 to 2013, returning to India in January 2013. He remained there until he came to Australia in August 2013.

7    As I note above, the Tribunal’s reasons contained comprehensive explanations of why it disbelieved the appellant on almost every aspect of his claim and why it found (at [43]) that “the [appellant] has fabricated the basis of his claims for protection”. The Tribunal expressed several bases for this conclusion, including:

(a)    The Tribunal did not accept that the appellant was a Christian as he claimed. It found his knowledge of Christianity to be inconsistent with his claims to have been bought up as a Christian. It found his inability to provide any “real detail about his religion” undermined his claim to be a Christian. In a somewhat troubling finding (but not one that affects my conclusions on the appeal), the Tribunal also found that if the appellant was “a genuine Christian, he would have been able to explain why having regard to his religious beliefs his overstaying in New Zealand did or did not matter”.

(b)    The Tribunal considered the appellant gave vague, evasive and inconsistent evidence in relation to his claim to have assisted police with their inquiries following the 2009 riot.

(c)    The Tribunal found the appellant had omitted a number of claims of past harm from his initial statement and was unable to give a credible explanation about why he did this, thus undermining the more recent claims he made.

(d)    The Tribunal found the appellant’s claims about approaching police for assistance after the attack in July 2009 were not credible.

(e)    The Tribunal found the appellant gave “non-credible and changing evidence” about where he lived after the incident in India, on which he relied for his protection claims.

(f)    The Tribunal found the appellant gave “inconsistent and non-credible evidence” about the attacks on his wife and her injuries.

(g)    The Tribunal found that the appellant’s failure to claim asylum during the three and a half years he was in New Zealand undermined his claim that he was fleeing Muslim fanatics in India.

(h)    The Tribunal found that the fact that the appellant returned to India from New Zealand in January 2013 and stayed there until August 2013 undermined his claims that people wanted to harm him in India.

(i)    The Tribunal found the delay between the appellant securing a visitor visa for Australia in June 2013, but not leaving for Australia from India until August 2013 also undermined his claim to have a genuine fear of harm in India.

(j)    The Tribunal also referred to the appellant’s requests to be given further time to produce certain documents, rejecting those requests and noting that the appellant had had almost a year since the lodgement of his protection visa application to produce any genuine documents on which he sought to rely.

8    It can be seen from this list that the Tribunal formed a highly adverse view of the appellant’s credibility, not for a single reason, but on the basis of a number of independent matters.

9    These matters affected both the Tribunal’s conclusions on whether the appellant satisfied the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth), and its conclusions whether the appellant satisfied the complementary protection criteria in s 36(2)(aa) of the Act.

10    On judicial review before the Federal Circuit Court, the appellant, as I have noted, was legally represented and advanced two grounds of review. The first ground of review concerned the Tribunal’s finding that the appellant was not a Christian. It was contended that this finding was legally unreasonable. In the particulars to the ground, and in submissions before the Federal Circuit Court, the appellant’s legal representative pointed to a number of facts, and a number of submissions to support this ground. As the Federal Circuit Court noted at [7] of its reasons, this ground challenged both the conclusion reached by the Tribunal and the process by which it reached that conclusion. The Federal Circuit Court characterised some of the appellant’s arguments as descending into merits review and, to the extent that the appellant pointed to evidence other than that on which the Tribunal relied, or to a different view of some of the evidence he had given, there may be force in the view taken by the Federal Circuit Court.

11    The second ground of review focused on the Tribunal’s asserted adverse view of the appellant’s credit, based on his failure to learn English. This ground was directed at a particular exchange which occurred in the review hearing when the Tribunal asked the appellant a series of questions about why he hadn’t learnt English yet chose to spend four years in English-speaking countries, as well as attending church services in English. It was contended that these issues were “irrelevant” and should not have formed any part of the Tribunal’s reasoning process. This ground also focused on what I have identified above in my description of the Tribunal’s findings as a somewhat questionable finding concerning the Tribunal’s questions of the appellant about whether he could reconcile his Christian faith with his overstaying in New Zealand.

12    The Federal Circuit Court rejected both grounds of review. In addition to its characterisation of the first ground as descending to some extent into merits review, the Federal Circuit Court found (at [11]) that the Tribunal’s conclusion that the appellant had been unable to provide any real detail about his religion and this undermined his claim to be a Christian was not a conclusion to which no reasonable decision-maker could come, referring to the decision of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.

13    The Federal Circuit Court also found (at [14]) that the Tribunal’s rejection of the appellant’s claim to be a Christian was not the only basis for the Tribunal’s ultimate conclusion that it was not satisfied that the appellant met the criteria for the grant of a protection visa. The Federal Circuit Court noted that the appellant’s review application failed:

because the important factual contentions which he advanced were not believed, not because his identity more generally, if that was something which the Tribunal ought to have considered but did not should have convinced the Tribunal that he had a well-founded fear of persecution for a Convention reason.

14    On the second ground of review, the Federal Circuit Court found it was open to the Tribunal to test the appellant’s failure to learn English, particularly in relation to church services he attended, as one method of assessing whether the Tribunal was satisfied he adhered to the Christian religion as he claimed. Further, the Federal Circuit Court rejected the submission that the Tribunal applied a “standard of morality” to the appellant’s conduct as a part of its reasoning. Rather, the Federal Circuit Court found (at [22]) that it was the appellant’s failure to be able to explain to the Tribunal how his overstaying was or was not consistent with his religious beliefs, which persuaded the Tribunal he did not, in fact hold those religious beliefs.

Resolution of the appeal

The grounds of appeal

15    The appellant’s notice of appeal to this Court appears to be one drafted without any real legal assistance. From it, as the Minister submitted, three grounds or arguments appear:

(a)    “Member didn’t investigate my case properly”;

(b)    “The Tribunal made jurisdictional error about I was not a Christian”;

(c)    “The Tribunal member didn’t understand my inability and ability of my personal …”

16    It is apparent that the third ground or argument is incomplete, but I infer it may refer either to the Tribunal’s approach to the appellant’s failure to learn English, or to his inability to obtain documents he had contended to the Tribunal would assist him to prove his claims. The second possibility may be more likely, because in short written submissions filed with the Court on the appeal the appellant contended that:

Tribunal failed to understand his ability and knowledge. Because when he applied his protection visa he didn't get any legal help. That's why he didn't provide any additional evidence in support of his claims for protection.

17    The appellant appeared at the hearing of the appeal, and was assisted by an interpreter. His lack of functional English would suggest he had some assistance in drafting the short written submissions filed by him. Through the interpreter, he referred several times to his inability to obtain the documents he needed, and to the Tribunal not giving him enough time to do so. I propose to treat ground three as going to that question.

18    There is no tenable argument raised by the first and third of these grounds, even read generously. The first is clearly not arguable on the evidence before the Court. The third ground should also be rejected. I accept the Minister’s submission that, as the Tribunal records in its reasons (at [37]), there had been ample time in an objective sense for the appellant to supply any additional documents he thought might assist his claims, and to give him any more time (as he had requested at the Tribunal hearing) would not necessarily have meant that he would, in fact, be able to produce any further documents that would assist his claims.

19    The second ground of appeal calls for closer consideration. Further, given the appellant is unrepresented, the approach I have decided to take on this ground of appeal is to look not only at the appellant’s grounds of appeal as they are expressed, but also at the grounds of review before the Federal Circuit Court, and the Federal Circuit Court’s reasoning.

The Tribunal’s finding that the appellant was not a Christian

20    Read fairly and with allowances for the appellant as a self-represented litigant without functional English, this ground of appeal raises the correctness of the Federal Circuit Court’s rejection of the first ground of judicial review which was before it. I do not accept the Minister’s submissions that it should be treated as a new ground of appeal. It is in substance the same as the ground advanced below: it challenges the reasonableness and rationality of the Tribunal’s finding that the appellant was not a Christian.

21    It is apparent from the Federal Circuit Court’s reasons that it took a careful approach to the grounds of review before it. However, it did not refer to the line of authority dealing with the boundaries in questioning visa applicants about their claimed religious faith in the context of claims for protection. It should have considered those authorities and it is important to do so now.

22    There are a number of decisions of this Court which discuss those boundaries: see the summary in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 at [46]-[47]; and Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; 189 FCR 577.

23    In MZZJO at [47] the Full Court stated (citations omitted):

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.

24    In SZOCT at [22]-[24], Jacobson J stated:

The vice in the Tribunal’s reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the visa applicant’s failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008.

Nor, in my opinion, is the Tribunal’s finding based on any probative material in the sense referred to in the High Court authorities to which I have referred. This can be tested by asking whether there is any probative material disclosed in the Tribunal’s reasons to support its conclusion that it was not satisfied that he had a level of knowledge of the Bible that a person might reasonably be expected to have if they had been a believer in, or practitioner of Christianity in China during the period in question.

The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role.

25    His Honour was in dissent in the outcome of the appeal. Buchanan and Nicholas JJ did not find the Tribunal’s approach to be so irrational that it fell within the principles in SZMDS.

26    This concept of an administrative decision-maker becoming the “arbiter of doctrine” has featured in this Court’s authorities on these questions. In SZOCT, Buchanan J referred to many of those authorities in detail. As his Honour noted at [44] sometimes the line of questioning reveals unlawful preconception or prejudgment. On other occasions (as his Honour explains at [46] by reference to the judgments of Kenny and Rares JJ in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362), what will render reasoning of a Tribunal lawful or unlawful may turn on, as Kenny J put it in SZLSP at [39], whether there is:

a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know.

27    The authorities which are referred to in both SZOCT and MZZJO reveal not only different judicial assessments of a single set of reasons, but also highly particularised approaches, depending on the circumstances of each case: the nature of the claims, the nature of the questioning, the nature of the evidence and the nature of the reasoning.

28    One issue which is not touched on by these authorities, but which is raised by the reasoning of the Tribunal in the present appeal, is what consideration should be given by an administrative decision-maker to the cultural context in which a visa applicant practices her or his claimed religion. It is notorious, and a matter appropriate for judicial notice, that the practice of many religions has cultural as well as doctrinal aspects. A religion such as Christianity is practised across the world, in a tremendous variety of cultural situations. In some cultures and communities, where literacy and educational levels are low, there may be less emphasis on religious knowledge or doctrine, and the focus may be on church attendance, the ritual of worship and prayer, and on community engagement. In some cultures, the practice of religious faith may be so historically entrenched that it is as much cultural as anything else. These are all nuances which operate in the real world in which people live in their communities and may well affect how, in a foreign cultural and linguistic situation, they are able to describe what they know about their religion and how they practice it.

29    Reading the appellant’s evidence to the Tribunal in this proceeding, and the Tribunal’s reasons, it seems to me these kinds of factors could have had a significant role to play in the assessment of the appellant’s claim to be a Catholic Christian. The Tribunal took no such approach. The appellant nominated two churches he attended in India, one before he was married and one after. The Tribunal did not refer to this in its reasons, and appeared not to have checked whether the churches existed. The appellant stated his sister was a nun. The Tribunal appears to have ignored this. He gave straightforward evidence about attending church, and about worship and prayers. It was at a basic level, but without consideration of the kind of matters to which I have adverted, it is difficult to see how his inability to give details the Tribunal considered adequate was evidence of likely fabrication, as opposed to being consistent with how he may have lived his life. The Tribunal gave no consideration to whether the country information to which it had recourse revealed anything about how Christianity was practised in rural communities in the areas of India from which the appellant came. It does not seem to have examined whether there were indeed Christian communities in the areas from which the appellant came, the appellant having given clear evidence that his family for generations had been Christian, and that he had a Christian surname. The Tribunal took a rather Western oriented and arbitrary approach, without cultural or any other nuances, to what it expected of a person who professed to be a Christian, and without informing itself at all about the situation in the appellant’s home region in India. That kind of approach is unwarranted and inappropriate, and in my opinion lacks any intelligible justification.

30    The inappropriateness is reflected in the line of questions to which I have referred above as troubling, and where I consider the Tribunal sought to impose some kind of arbitrary standard of moral behaviour on the appellant, derived from the Tribunal’s (unstated) assumptions about the likely behaviour of those who adhere to the Christian faith. As I noted to the Minister’s counsel during the hearing, there are contemporary examples of persons whose religious faith could not seriously be doubted (and indeed who hold positions of ministry in the Christian Church), but who have transgressed the law. Even such educated, sophisticated individuals might struggle, in their own country and in their first language, to express how they “reconcile” (to use the Tribunal’s words) what they have done with their faith. To ask a person in the appellant’s situation such a question is without any intelligible justification. More importantly, I fail to see how such a question is capable of being probative of the question the Tribunal had to decide. It was a form of moralising, from which the Tribunal should have refrained.

31    Notwithstanding the recognition in the authorities to which I have referred of the entitlement of an administrative decision-maker to test a person’s claim to have a religious faith, it must also be recognised that holding a religious faith is a core, and highly personal, part of an individual’s identity. That is why it is a protected attribute under the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967 and in international and domestic anti-discrimination law. Many people who hold a religious faith consider their religious faith defines who they are. For a person who exercises public power to make a finding that an individual does not hold the religious faith she or he claims to hold, and therefore does not have the personal identity she or he claims to have, is a very serious finding indeed. If wrong, it is difficult to imagine a finding that will be more offensive and shocking to an individual. Decision-makers should, in my opinion, remind themselves about the nature of religious faith and its place in individual identity when, as part of the task of an exercise of public power, they are called on to decide whether or not they accept a person’s claims to hold a religious faith, or to be a member of a particular religion. It is also appropriate to bear in mind, as I have noted, that where it is practiced in different parts of the world, a religion may well have cultural aspects as well as religious ones. Protection visa decision-makers have comprehensive access to country information, and are able properly to inform themselves about these matters, as they are about many other matters concerning a visa applicant’s country of nationality.

32    It is apparent from what I have said above that I would be inclined to decide that the second ground of appeal had merit. However, even if the Federal Circuit Court erred in not determining that the Tribunal’s finding the appellant was not a Christian was legally unreasonable, I do not consider the appeal should be allowed. That is because as a matter of discretion, I consider that even if the Federal Circuit Court had identified such an error, relief would (and should) have been refused.

33    It is not possible to look at the Tribunal’s reasoning as a whole and conclude anything other than it had multiple bases for its disbelief of the appellant’s account of what had happened to him in India, and what he feared on his return. Irrespective of whether the Tribunal had accepted or rejected the appellant’s claim to be a Christian, it was not satisfied he had a subjective fear of persecution, nor that his fear of persecution was well-founded, nor that he faced a real risk of serious harm in India. These matters were the central aspects of its task. Its findings and reasoning on those matters were not impugned, and were based on probative material.

34    Accordingly, there was no basis for the Federal Circuit Court, in the exercise of its supervisory jurisdiction, to set aside the decision of the Tribunal, and there is no basis for any interference with its orders on appeal, even taking the most generous approach to this Court’s appellate functions, in the appellant’s favour.

Conclusion

35    The appeal must be dismissed. There is no basis for anything other than the usual order as to costs.

36    At the hearing of the appeal, the Minister was granted leave to file and read an affidavit of Mr Thomas Galvin sworn 24 May 2018, in relation to the amount of costs the Minister has incurred in the appeal, and the amount of costs he would seek by way of a lump sum order if the appeal were to be dismissed. I am satisfied the amount of $5,200 which is claimed is fair and reasonable, and there will be a costs order in the Minister’s favour in that sum.

Associate:

Dated:    4 June 2018