DBD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-01-29|Before: McKerracher J

The appeal be allowed.
The orders of the Federal Circuit Court made on 20 April 2020 be set aside and in lieu thereof it be ordered that: (a) A writ of certiorari be issued to the Administrative Appeals Tribunal quashing its decision made on 14 November 2019 affirming the decision not to grant the appellant a Safe Haven Enterprise visa; (b) The matter be remitted to the Administrative Appeals Tribunal for determination according to law; (c) The first respondent pay the appellant's costs of the application before the Federal Circuit Court.
The first respondent pay the appellant's costs of the appeal, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BACKGROUND 1 The appellant was born in a village in the Jessore District in the Division of Khulna in Bangladesh. He is a national of Bangladesh and is Bengali by ethnicity. He does not know his exact date of birth but believes he is (now) about 34 years old. 2 He lived all of his life in Bangladesh prior to coming to Australia. His mother is deceased, but his father, stepmother, half-brother, and half-sister still reside in his home village. 3 In June 2011, he moved to Dhaka and a year later to Teknaf for three months until September 2012. 4 His education consists of five years of primary education which finished in December 1998 (at approximately age 12). His employment between that time and arriving in Australia comprised various manual labour positions and working in a fruit shop. 5 He left Bangladesh by fishing trawler on 25 September 2012. The fishing trawler sailed eventually to Indonesia. He then boarded a boat headed for Australia which was intercepted by Australia authorities in October 2012. 6 His subsequent application for a Safe Haven Enterprise Visa was refused on 11 July 2016. On 5 April 2019 (following some procedural complications that are not material to the current appeal), a delegate of the Minister gave the appellant formal notice of the decision to refuse his visa application. 7 On 14 November 2019, following an application for review, the Administrative Appeals Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. 8 The appellant's application to the Federal Circuit Court of Australia for judicial review was heard and refused in an ex tempore judgment on 20 April 2020. The Federal Circuit Court's reasons (FCC Reasons) were subsequently reduced to writing and published on 27 May 2020: DBD16 v Minister for Immigration & Anor [2020] FCCA 1249.

CLAIMED CONVERSION FROM ISLAM TO CHRISTIANITY 9 The appellant raised a number of claims before the Tribunal and pressed them again before the Federal Circuit Court. Of those various claims, only that relating to his claimed conversion from Islam to Christianity is relevant to this appeal. He relevantly claimed that: (a) he was raised as a Sunni Muslim but, whilst in immigration detention in Australia, had converted to Christianity; (b) his interest in Christianity arose after reading parts of the Bible over the course of about a year and had decided to 'go for it' whilst residing in Australia in 2015. He was drawn to Christianity because it is a peaceful religion based on love, respect and caring for other people; (c) he had initially intended to be baptised as a Catholic but, following being placed into a detention centre, had been baptised into the Anglican Church; (d) his family in Bangladesh had 'cut him off' because of his Christian activities. His father was 'very upset'; and (e) he feared harm in Bangladesh because people who convert from Islam to Christianity are in danger of being killed: he feared people knowing about his conversion from Islam. He stated no one would help him. He stated that he will be in trouble and that small groups and religious leaders won't tolerate his conversion and will seek to harm him. (Tribunal's decision at [262], emphasis added.) (the Conversion Claim). 10 The Tribunal considered (at [121]-[127]) media and Department of Foreign Affairs and Trade's (DFAT) country information reports that noted separate incidents of Islamist militants having murdered Christian converts and committing other acts of violence against them. While there are no laws prohibiting such conversions in Bangladesh, the risk associated with them varies according to individual circumstances, particularly when (as the appellant asserted was so in his instance), such risk is associated with family objections and that '[a] lone convert in a smaller community would be likely to face a greater risk'. The appellant himself accepted that friends who had always been Christian were in a different position. He emphasised that it was the conversion from Islam to Christianity which attracted the risk of confrontation. This was consistent with country information. 11 The Tribunal made the following further relevant findings from the evidence, including the oral evidence of the appellant's Anglican Minister, Reverend Holgate (with whom the Tribunal was impressed): (a) the appellant was baptised into the Anglican Church on 14 July 2017 (at [101], [253] and [275]); (b) he had attended church services regularly (at [275]); (c) he had attended fellowship classes in the detention centre where he had gained knowledge about Christian concepts and rites, including baptism, the Holy Trinity, Christmas and Easter (at [270]); and (d) this information (possibly including photographs and other documentary material) may have been sent to the appellant's family or others in Bangladesh (at [274]-[275]).

IN THE TRIBUNAL 12 The Tribunal considered (at [269]) that: notwithstanding the Country Information, the broader issue for the Tribunal is whether the Tribunal accepts that the [appellant's] conversion to Christianity is genuine. 13 Largely on the basis of its concerns about his credibility and genuineness of other claims, the Tribunal did not accept that the appellant's conversion to Christianity was genuine. It considered (at [271]) that a reason he had entered into Christian observances and practices was to strengthen his refugee claim. However, it accepted (at [272]) that this might not have been the sole reason and, accordingly, his religious activities within Australia were not to be wholly disregarded pursuant to s 5J(6) of the Migration Act 1958 (Cth). There is also no suggestion that the information about his Christian activities had been sent to people in Bangladesh purely to strengthen the appellant's claim. 14 Further, the Tribunal also found that the absence of genuine conversion meant that neither the information about his baptism and Christian observances provided to Bangladeshis, nor any questioning by such people about his religious activities, would result in adverse interest. This finding appears to be based on the Tribunal's view (at [275]) that the appellant would not practice Christianity or profess any interest in it if he returns to Bangladesh.

IN THE FEDERAL CIRCUIT COURT 15 Upon his application for judicial review, the Federal Circuit Court reviewed these matters (FCC Reasons at [23]-[32] and [55]-[56]) before finding no error by the Tribunal in its considerations and analysis: FCC Reasons (at [66]-[86]). 16 Further, the Court found (at [82]) that although the appellant had claimed a fear of persecution because he had converted to Christianity, he: did not actually make a claim that he would be persecuted because he has renounced Islam. . . [H]e has not identified that it is a rejection of Islam that would have caused him any harm. (Emphasis added.) 17 The appellant contends that the Federal Circuit Court was in error in drawing these conclusions.

THIS APPEAL 18 The appellant challenges the decision of the Federal Circuit Court, given on 20 April 2020, dismissing his application for judicial review of the Tribunal's decision. 19 The appeal is based on three grounds, set out in the amended notice of appeal. They are as follows: 1. The learned primary judge erred in finding (at [73]) that the Administrative Appeals Tribunal (Tribunal) did not commit a reviewable error by failing to consider properly the real risk of serious harm to the appellant in Bangladesh (should he be retuned there). PARTICULARS The Tribunal found: a. there was not a real risk or real chance of any harm to the appellant in Bangladesh, should he be returned there, on the basis of its finding that he has not genuinely converted his religion to Christianity; and b. the interest of people in Bangladesh in the appellant's religious activities in Australia would not become adverse, on the basis that the Tribunal did not accept that the appellant will practice Christianity or profess any interest in Christianity if he returns to Bangladesh; and c. there is not a real risk the appellant would suffer serious harm in Bangladesh because of his involvement in Christian activity whilst in detention in Australia but in coming to these findings failed to consider the extent to which the appellant's engagement in Christian rites and activities would, of itself, give rise to a real risk or real chance of harm, and thereby misconstrued or misapplied sections 5J and 36 of the [Act]. 2. The learned primary judge erred by finding (at [55]) that the issue for the Tribunal to consider was whether it accepted that the appellant's conversion to Christianity was genuine. PARTICULARS The [Federal Circuit] Court and the Tribunal before it misdirected themselves by holding that the genuineness of the appellant's conversion was determinative of his risk of harm in Bangladesh, rather than the attitudes and perceptions of people in Bangladesh with respect to his purported renunciation of Islam and conversion to Christianity and the Christian rites and activities in which he engaged, and thereby misconstrued or misapplied sections 5J and 36 of the [Act]. 3. The learned primary judge erred in finding (at [84]) that the [Tribunal] did not commit a reviewable error by failing to consider the appellant's claim that he had a well-founded fear of being persecuted or harmed due to his renunciation of Islam as the claim did not arise squarely on the facts and was not, therefore, established. PARTICULARS The appellant's actual or purported renunciation of Islam is a necessary and central element of an actual or purported conversion to Christianity and therefore arose squarely on the facts before the Tribunal and fell to be considered.

Grounds 1 and 2 - imputed conversion to Christianity 20 Administrative decisions such as those required under s 36 of the Act require, first, a correct understanding of the basis on which the visa applicant says they have a fear of persecution in their home country (or face a risk of serious harm if returned), and, secondly, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well-founded: see Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (at [34]). 21 As to the first limb, it was a core element of the appellant's claim that the feared persecution (or risk of serious harm) arose, not solely because of his claimed conversion, but also because he feared people knowing about the purported conversion and the Christian activities in which he had engaged. It was the perception or imputation of conversion having regard to activities in which he had already participated, that, he claimed, gave rise to the risk of persecution or harm. The fear was not solely based on what he would do or not do on his return to Bangladesh. 22 Rather than express concern about his future intended religious practices, and while emphatically maintaining that his conversion was genuine, the appellant's claims and submissions were clearly and squarely focussed on the adverse inferences or imputations likely to be drawn by others in his home community from the observances and activities in which he had already engaged: see, for example, SBXC v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 19 per Besanko J (at [16]). Whether or not that was a valid or genuine fear is another question. But it is a question to be addressed. 23 Accordingly, the question the Tribunal ought to have asked itself was not only whether the appellant's conversion was genuine but also, as it was put in SBXC (at [18]), whether in light of the country information, he 'faced a real chance of serious harm in relation to his 'real or imputed religious conversion'. 24 Having made the error it did, the Tribunal's consideration of the possibility of adverse attention arising from the appellant's historical religious activities was infected. The Tribunal said (at [275]-[276])): 275. The Tribunal accepts that other people in the detention centre with him may be aware that he has attended Fellowship classes in the detention centre, underwent a Christian Baptism ceremony and attended church services regularly. The Tribunal accepts that this information may have been sent to the [appellant's] family or others in Bangladesh. However, the Tribunal does not consider that this gives rise to a real risk or real chance of any harm to the [appellant] in Bangladesh given that he has not genuinely converted his religion to Christianity. The Tribunal accepts that people in Bangladesh may ask him about his religious activities in Australia, however, the Tribunal does not accept that their interest would become adverse in view of the fact that the Tribunal does not accept that the [appellant] will practice Christianity or profess any interest in Christianity if he returns to Bangladesh. 276. The Tribunal is not satisfied that there is a real risk the [appellant] would suffer serious harm in Bangladesh because of his involvement in Christian activity whilst in detention in Australia. (Emphasis added.) 25 The Tribunal's logic, with great respect, is slightly flawed, in my view, in that it conflates the likely imputations to be drawn by others from the appellant's historical conduct with his subjective state of mind and intended future behaviour. 26 The Tribunal's finding (at [276]) flows directly from its consideration of the genuineness of the appellant's conversion as the determinative question in assessing the risk of harm. The finding is also infected by the Tribunal's statement at [269] that 'notwithstanding the Country Information, the broader issue for the Tribunal is whether the Tribunal accepts the [appellant's] conversion to Christianity is genuine'. Independent from any findings as to the genuineness of the appellant's conversion, the Tribunal was required to respond to the claim actually put to it by asking itself whether the appellant faced a real risk of harm if returned to Bangladesh by virtue of the imputations or perceptions that Bangladeshi people might draw about the appellant from their knowledge of his religious activities in Australia. This is the thrust of the claim which the appellant put to the Tribunal and which was recorded by the Tribunal (at [262]): When asked what he actually feared, he replied that he feared people knowing about his conversion from Islam. He stated that no one would help him. He stated that he will be in trouble and that small groups and religious leaders won't tolerate his conversion and will seek to harm him. 27 It is well established that for a Tribunal to ask itself a wrong question (or fail to ask the correct question): … is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at [82]) and Craig v South Australia (1995) 184 CLR 163 (at 179).) 28 The Minister contends that the Tribunal did not fail to consider the extent to which the appellant's engagement in Christian practices would place him at risk of harm in Bangladesh. The Minister submits that the relevant findings at [275]-[276] must be read in the context of the Tribunal's decision as a whole, which includes findings that: (a) the appellant's conversion to Christianity was not genuine and was done (in part) to strengthen his claims to be a refugee (at [271]); (b) the appellant would not practice his Christian faith should he return to Bangladesh or tell anyone about his Christian practices (at [273]); (c) the appellant's remarks about fearing that people have seen documents regarding his baptism and pictures have been taken of him coming out of church were made for the purposes of supporting his claims to Christian conversion (at [274]); and (d) the Tribunal was not satisfied that there is a real risk the appellant would suffer serious harm because of his involvement in Christian activity while in Australia (at [276]). 29 This submission, however, repeats the same misunderstanding as to the actual basis of the appellant's claim to fear harm. His claim is directed to the consequence of perceived or imputed conversion by reason of the acts and events in which he was found to have participated while in Australia. 30 For the same reasons, the learned primary judge was also wrong, with respect, to say as he did (at [83]) that the whole issue was whether or not the appellant was Christian. 31 Ground 1 and ground 2 are made out.

Ground 3 - renunciation of Islam 32 It is strictly unnecessary to consider ground 3, but I accept the appellant's submission that the Federal Circuit Court erred when it found (at [82]) that the appellant had not raised before the Tribunal the issue of his renunciation of Islam (as distinct from his conversion to Christianity) and that it did not arise squarely on the facts and did not, therefore, fall to be considered. 33 In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, the Full Court (Collier, McKerracher, Banks-Smiths JJ) summarised the law applicable to the Tribunal's duty to consider claims and issues arising from the material before it. It cited the following principles with approval (at [18]): (a) the Tribunal review function requires it to consider all claims made by an applicant and their essential components or integers: see Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (at [42]); (b) in addition to claims the subject of substantial, clearly articulated argument relying on established facts, the Tribunal is also required to consider claims that clearly emerge from the materials: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at [55] and [68]); AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (at [67]); (c) to clearly emerge from the materials, the claim must be plain on the face of the material before it, arising from established facts: see SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (at [37]-[38]); (d) while there is no precise standard to determining whether an unarticulated claim has been 'squarely raised' or 'clearly emerges' from the materials, 'a court will be more willing to draw the line in favour of an unrepresented party: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 (at [21]); and (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time: see AWT15 (at [67]-[68]). 34 On this topic, the Minister contends the Federal Circuit Court was correct to find that the appellant made no claim to fear harm on the basis of a renunciation of Islam independently of, and separately to, his claim to fear harm on the basis of his conversion to Christianity: cf SBAW v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 515 per O'Loughlin J (at [9]). The Minister argues that the following evidence shows that there was no claim before the Tribunal that the appellant would face harm for renouncing Islam independently of his conversion to Christianity: (a) in his statement dated 20 April 2016 the appellant said: [20] I was raised as a Sunni Muslim but I have now changed by religion to Christianity. … [27] I fear that converting to Christianity will cause additional problems for me if I return to Bangladesh. My friends in Bangladesh were born Christian so their situation is different, but people like me who convert from Islam to Christianity are in danger of being killed. (b) the appellant's migration agent provided a submission to the delegate, which summarises that the appellant fears harm because he converted from Islam to Christianity. Nothing in this submissions refers to any fear of harm from renouncing Islam, separate from the claimed fear of harm from conversion to Christianity; (c) from the delegate's decision, it appears that the appellant explained at the protection visa interview why he did not like Islam. This explanation was given in the context of the appellant explaining why he had chosen to convert to Christianity and the appellant did not claim to fear harm on the basis of his dislike of Islam. The appellant said: And I think that Muslim religion I followed was wrong. I can see that in various countries they are killing people. And they, ISIS are killing people. Muslims kill other people. That is why I do not like this religion. (d) the Tribunal's summary of the appellant's evidence to it suggests that he fears harm from converting from Islam to Christianity. This can be seen most clearly at [119] and [200]. There is nothing in the Tribunal's summary of the appellant's evidence to suggest that the appellant claimed to fear harm from renouncing Islam. 35 Relying on the principles set out in AYY17 (at [18]) as summarised above, the Minister says the Tribunal is only required to consider a claim if it was expressly raised by the appellant or if it squarely arose on the materials before the Tribunal. In the present case, it is said that the appellant did not raise any express claim to fear harm on the basis of renouncing Islam, separate to his claim to have converted to Christianity, nor did any implied claim clearly emerge on the materials before the Tribunal. The Minister says the Tribunal has not erred in the manner alleged by the appellant because: (a) by rejecting the appellant's express claims that he would face harm as a result of converting from Islam to Christianity, the Tribunal has considered any harm that the appellant claimed to face from converting from Islam in the proper context in which those claims were expressly raised; and (b) no implied claim squarely arose from the materials before the Tribunal (the appellant's evidence, country information or other materials) that the appellant would face harm as a result of renouncing Islam without converting to another religion. 36 It should be noted, however, that the appellant, a man with extremely limited education and raised in a small Bangladeshi village, was unrepresented before the Tribunal and the Federal Circuit Court and was communicating through an interpreter. Some latitude is therefore appropriate when considering any failure on his part to more clearly identify and articulate a somewhat nuanced distinction. 37 It is not entirely accurate to say that the appellant did not expressly raise the issue. He expressed his fears as arising from his claimed conversion from Islam to Christianity: see, for example, before the Tribunal (at [68]): The applicant claims to fear that converting to Christianity will cause additional problems for him if he returns to Bangladesh. He claims his friends in Bangladesh were born Christian so their situation is different, but people like him who convert from Islam to Christianity are in danger of being killed. (Emphasis added.) 38 Further articulation of the distinction, while desirable, was not essential. The concept of conversion necessarily incorporates the renunciation of one religion and the adoption of another, at least in the specific instance relied upon in this case, and it is artificial and unreasonable to exclude consideration of such a fundamental element. As a necessary integer of the Conversion Claim, its significance fell to be considered. 39 Further, the material considered by the Tribunal strongly indicated that it is the renunciation of Islam (rather than solely the adoption of Christianity) that the relevant people in Bangladesh found objectionable. This included: (a) the DFAT information upon which the Tribunal relied refers to the societal pressure faced by 'individuals converting from Islam to another religion (generally Christianity)'. That the religion to which people generally convert is Christianity does not change the principle point made by DFAT that it is conversion away from Islam that is disapproved rather than the adoption of Christianity per se; (b) Christians themselves face a low risk of societal violence but '[t]he risk is higher for Christians who convert from Islam in the context of a lone conversion without the support of their community or family.' (emphasis added). Thus, it is not strictly conversion to Christianity alone to which there is objection; and (c) there is an absence of any suggestion that people converting from religions other than Islam to Christianity faced similar societal violence or other pressure. 40 It follows that the real or imputed renunciation of Islam by the appellant was an essential integer of his principal claim, was articulated by him to a degree (albeit not as clearly as it might have been), and clearly arose as an issue on the materials before the Tribunal.

Materiality 41 It is necessary to consider whether the error identified in the reasoning of the Tribunal was material to its decision to affirm the delegate's refusal of the appellant's visa application. Jurisdictional error will only lie in circumstances where, but for the error, a different decision could realistically have been made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (at [45]). The question of materiality was not an area of serious contest between the parties. 42 For the reasons stated, the Tribunal fell into error by asking the wrong question. Had the correct question been asked, its reasoning would have proceeded on an entirely different footing and would have engaged directly with the appellant's claims. I consider that there is a distinctly realistic possibility (certainly more than a fanciful or improbable possibility) that the Tribunal's decision could have been different had the error not occurred.

CONCLUSION 43 The appeal should be allowed with costs. It follows that orders should be made setting aside the orders of the primary judge and the decision of the Tribunal. The matter should be remitted to the Tribunal for redetermination according to law. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.

Migration Act 1958(Cth)ss 5J, 5J(6), 65, 36, 412

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