SZOIV v Minister for Immigration and Citizenship

the TRIBUNAL AFFIRMS THE DELEGATE'S DECISION - APPELLANT NOT A CREDIBLE WITNESS 8 The Tribunal accepted that the appellant was a Bangladeshi national, who had left Bangladesh for Malaysia and later entered Indonesia illegally. However, the Tribunal found the appellant to be an unreliable witness. The Tribunal found that the appellant revised his claims about the secrecy of his Christianity in Indonesia, and that he revised and changed his claims about the extent to which he was targeted in an immigration crackdown in Indonesia. 9 The Tribunal also found that the appellant's account of how he came to be baptised was very far-fetched, and that on the evidence it was "hard to accept that the Applicant became a Catholic in the circumstances claimed". The Tribunal therefore concluded that the appellant did not hold a baptism certificate. 10 The Tribunal did not accept that the appellant had ever been a genuine Catholic or Christian because, although he claimed to have practiced the religion for over 18 years and claimed that his faith was very dear to him, he did not display any familiarity with Catholic beliefs and rituals when the Tribunal discussed them with him. The Tribunal therefore concluded that the appellant did not abandon Islam for Christianity or that the appellant would ever be imputed in Bangladesh to be an apostate from Islam, or a Christian. 11 As the Tribunal disbelieved the appellant's claims in their entirety, it affirmed the delegate's decision.

the federal magistrate finds no jurisdictional error 12 The appellant's amended application in the Federal Magistrates Court alleged: 1. The Tribunal erred in law in deciding 'religious opinion' in the claims made by the applicant. Particulars: The applicant claimed that he departed Islam and converted himself to Christianity. The Tribunal only assessed the applicant's claims on the basis of his Christian faith but did not consider that departing one religion (in this case, Islam), can also form religious opinion pursuant to the Convention. 2. The Tribunal erred in deciding 'particular social group' in the claims made by the applicant. Particulars: In addition to the particulars mentioned above, the Tribunal failed to assess that people who depart Islam in Bangladesh can also form a 'particular social group' pursuant to the Convention. 3. The Tribunal failed to consider all claims made by the applicant. Particulars: Grounds (1) and (2) 4. The Tribunal failed to assess whether the applicant faces any real chance of persecution as a result of grounds 1 and 2 mentioned above." 13 With regard to grounds 1 and 2 of the amended application, her Honour held that as the Tribunal had comprehensively rejected the appellant's claim that he had converted from Islam to Christianity, therefore any consideration as to whether conversion constituted a form of "religious opinion" or a "particular social group" was not necessary. 14 Ground 3 and 4 of the amended application were rejected by her Honour as "bare assertions" unsupported by any written or oral submissions. 15 The appellant also made a new claim orally at the hearing before the Federal Magistrates Court. It was that the Tribunal ought to have contacted Father Palmer in Bangladesh to verify his story. This was taken by her Honour as an allegation that the second respondent failed "to make an obvious inquiry about a critical fact, the existence of which is easily ascertained", as identified by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]. 16 In considering this new claim, the Federal Magistrate noted that a critical fact in the appellant's claims was whether or not he was a Christian and from the appellant's evidence, it appeared that Father Palmer might have been able to corroborate that claim. However, the Federal Magistrate held that the relevant question was whether or not an inquiry of Father Palmer was something that was obvious and easily ascertainable. On this question, the Federal Magistrate noted that neither the appellant nor his migration agent had requested the Tribunal to contact Father Palmer to corroborate the appellant's claims and that, in any event, the information relating to Father Palmer's contact details was 18 years old and there was nothing to suggest he was still a priest at the church where his baptism was said to have occurred. 17 Furthermore, her Honour concluded that the matters to which the Tribunal had regard in arriving at its decision about the credibility of the appellant's claims, eg his negligible knowledge of Christianity and his vague and confused evidence about practising Christianity in Indonesia, were not matters that Father Palmer could have commented on with any relevant weight. Her Honour concluded these adverse credibility findings were open to the Tribunal on the evidence and material before it and therefore the Tribunal was under no obligation to make inquiries of Father Palmer. 18 Having found no jurisdictional error in the Tribunal's decision, her Honour dismissed the appellant's application for judicial review.

The CONDUCT OF PRESENT APPEAL 19 The appellant's amended notice of appeal in this Court alleges: 1. The Honourable Federal Magistrate … erred in finding that the Refugee Review Tribunal did not make jurisdictional error in making a decision on the matter of the appellant. 2. The Honourable Federal Magistrate erred in finding that the RRT did not make any mistake in deciding the meaning of religious opinion within the meaning of the Refugees Convention. … [Errors in original] 20 At the hearing of the appeal before me on 24 November 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Graycar appeared for the Minister. 21 The appellant relied on his notice of appeal and also a statement that was read out (through the interpreter) in court. During that statement the appellant raised the issue that was also raised orally before the Federal Magistrate that the Tribunal had failed to make enquiries of Father Palmer who could, it was claimed, corroborate the appellant's claims in relation to his conversion to Christianity and his baptism in Bangladesh. 22 The Minister relied on the outline of submissions filed with the Court. In response to the appellant's claim in relation to Father Palmer, Ms Graycar submitted that: the appellant did not request the Tribunal to contact Father Palmer at the hearing before it; the details of the appellant's conversion to Christianity and baptism in 1992 was not a critical matter which lead the Tribunal to decide against the appellant; given that event occurred about 18 years ago it was not clear whether Father Palmer was easily contactable and it was not obvious to the Tribunal to contact Father Palmer.

consideration 23 The appellant's first ground of appeal is unparticularised and in the most general of terms. No error is identified, let alone any jurisdictional error. It is therefore almost impossible to even begin to assess whether the Federal Magistrate did in fact make any error. Furthermore, by its terms, this ground is redolent of an attempt at merits review which, of course, is not open on an appeal to this Court. To compound all this, the appellant's claims were rejected by the Tribunal on credibility grounds and, as the Federal Magistrate correctly pointed out (referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J) credibility is classically a matter for the Tribunal. The appellant's first ground of appeal must therefore be rejected. 24 The appellant's second ground of appeal appears to be essentially the same as the first ground of review raised before the Federal Magistrate: see at [12] above. As the Federal Magistrate correctly noted (see above at [13]), the Tribunal comprehensively rejected the credibility of the appellant's claim that he had converted from Islam to Christianity, and therefore any consideration of whether such a conversion constituted a form of "religious opinion" is completely otiose. 25 In relation to the Tribunal's credibility findings, I agree with the Federal Magistrate's conclusion that they were open to it on the evidence before it. It is clear from the Tribunal's reasons that it carefully examined the appellant's claims to have converted from Islam to Christianity. The Tribunal specifically noted that certain persons might embrace religion in an entirely individual way and that someone in a "far-flung" place might not learn what other practitioners in that religion have learned, and may not be able to answer simple questions about that religion. However, the Tribunal concluded that the appellant was not such a person. The Tribunal concluded that, given the appellant claimed to have been a Catholic for over 18 years, and that he was at the height of a fresh embrace of the religion, coupled with the far fetched story in relation to his baptism and his inconsistent and often revised evidence, the appellant was not in fact a Catholic as he claimed. The appellant's second ground of appeal must also be rejected. 26 In relation to the new claim the appellant made orally about the Tribunal's obligation (if any) to make inquiries of Father Palmer, since this claim is not included in the appellant's notice of appeal to this Court it can only be entertained if the appellant is given leave to raise it. However, I note that the Federal Magistrate dealt with it in her decision, so it cannot be truly characterised as a "new" matter. Furthermore, I note the Minister's counsel did not object to it being considered, but instead made oral submission in response to it. In these circumstances I will proceed to deal with it. 27 On this claim, I agree with the Federal Magistrate's conclusions: see at [16] to [17] above. In particular I note that: the Tribunal was not requested by the appellant to contact Father Palmer; given that the events involving Father Palmer (the claimed conversion and baptism) occurred in 1992, some 18 years before the Tribunal's decision, such an inquiry could not have been regarded as obvious; there was nothing before the Tribunal to indicate whether Father Palmer could be readily contacted or, indeed, contacted at all; and even if Father Palmer were able to be contacted, it is unlikely that he would be able to give any evidence that would affect the critical findings the Tribunal made about the credibility of the appellant's claims to be a practising Christian in more recent times, particularly since he went to Indonesia in 1998. This new claim must also be rejected.

conclusion 28 For these reasons, this appeal must be dismissed. I so order. I will hear the parties on the question of costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.