SZTPW v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellants have appealed the decision of the Federal Circuit Court ("FCC") dismissing their application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the delegate of the First Respondent to refuse to grant them protection visas. This appeal was heard together with the appeal in NSD 178 of 2015. 2 The appellants are citizens of Iran and are husband and wife. They both applied for a protection visa claiming to fear persecution in Iran for reasons of religion. In short, they claimed to have converted from Islam to Christianity whilst in Iran and to have come to the adverse attention of the security forces for their interest in Christianity. They claimed that they feared being arrested, interrogated and jailed should they be returned to Iran because of their Christian faith. 3 The alleged facts on which the appellants relied were set out as follows at [3] to [6] in the FCC decision: When visiting her sisters and uncle in Australia in 2008, the first [appellant] was encouraged by her sister and by her uncle to visit on a number of occasions a church near where they lived. On her return to Iran, the first and second [appellants] privately watched Christian programs illegally via Satellite, those programs included Kalameh, Mahabbat TV, and Nejat TV. On a second visit to Australia in 2009 the first [appellant] spent more time discussing her questions about Christianity with her sister and uncle, and visited the church she had visited in 2008. On her return to Iran, the first [appellant] started to speak to the second [appellant], her parents, and other relatives about what she had read and learnt about Christianity. By late 2011 what had been irregular get-togethers became regular meetings between the first and second [appellants], the first [appellant's] parents, two of her sisters, the second [appellant's] cousin and his wife, the second [appellant's] brother, and the first [appellant's] uncle's granddaughter. The meetings took place on Sundays. Additionally, the second [appellant] exchanged a few emails with the first [appellant's] second cousin who is a pastor in Belgium (The Pastor). The Pastor sent to the second [appellant]five pages from the Gospel of Matthew that spoke about the miracles of Jesus. In February 2012, when the [appellants] and other persons who attended the regular meetings were watching "our usual Sunday night program and praying together", the [appellants'] home was raided by government agents who discovered the [appellants] had been watching a Christian program, and the extract from the Bible the first [appellant's] cousin had sent. All persons present at the meeting signed an undertaking after the second [appellant] had paid a bribe to the agents, and the government agents stated they would report the matter to the Information and Security Ministry. After this incident, the [appellants] knew they were now under the security agents' radar, they began thinking of ways to leave Iran. The [appellants] further claimed that, after the incident, the [appellants] received suspicious telephone calls in which the first [appellant] was threatened that if they did not leave Christianity they would be killed. Further, after the [appellants] left Iran, police came to the [appellant's] house and asked neighbours where the [appellants] had gone. [footnotes omitted] 4 Further relevant facts summarised at [7] to [10] by the FCC were as follows: The [appellants] attended a hearing before the Tribunal on 9 October 2014. The first appellant gave evidence that her uncle who introduced her to Christianity (the Uncle) was a Christian for twelve years. She did not know, however, which church he attended, although she said the church was far away. The first appellant also did not know where the Uncle had been baptised. She said the Uncle did not currently attend church because he worked seven days a week. She did not know when the Uncle stopped going to church, but he was not going to church in 2008 when the first appellant visited Australia. The second [appellant] was also asked about the Uncle. He did not know into what religion the Uncle was baptised, or which church he attended. The second [appellant] was also unable to say what type of wedding the Uncle had, or where it was conducted, although he did say that the Uncle's wife was not religious, so the Uncle would not insist on a religious wedding. The [appellants] were asked questions about the Pastor. The first [appellant] said her mother had moved to Belgium about twelve years previously and her mother was ringing to check up on them. The first [appellant] learnt the Pastor had become a minister, so they asked him to send them some pages, which he did. The first [appellant] did not know what type of minister he was, and the first and second [appellant] had not been in contact with him since they arrived in Australia. The second [appellant] also did not know what denomination the Pastor was qualified as a minister in, and he had not re-established contact with the Pastor after the [appellants] had converted to Christianity in Australia. In support of their claims the [appellants] submitted a letter from the priest of a church (the Priest) in relation to the first [appellant's] parents, the first and second [appellants], and one of the first [appellant's] sisters. The letter stated that, with the exception of one of the first [appellant's] parents, the persons to whom it referred had been baptised and attended church. [footnotes omitted] 5 On 14 October 2013, before the Tribunal handed down its decision in this matter, the same Tribunal member held a hearing in relation to an application for review made by the first appellant's parents and three of the first appellant's sisters (Second Proceeding). The appellants in the second proceeding also claimed they feared persecution if they returned to Iran because they had converted from Islam to Christianity. The FCC stated, at [11]: The alleged facts on which those claims were based are substantially the same as those on which the [appellants] in the case before me are based. During the hearing the Tribunal member put to one of the first [appellant's] sisters that nobody seemed to know at what church the Uncle worshipped. The sister claimed the Uncle was working two jobs, and she did not think the Uncle had gone to church since she had been living with him. [footnotes omitted] 6 The FCC decision also recorded, at [12], that: During the hearing in the Second Proceeding, the Tribunal asked questions of the Priest. The Priest reiterated his support for the family of which the first [appellant] was a member. He said the family had a gradual attraction to Christianity, that the first [appellant] and her sister had requested baptism, and that he did not perceive a desperate or conniving attitude. The Priest said that in 2010 he had baptised two Iranians. In response to the Tribunal's question about how the Priest "did his due diligence checks regarding the validity of claims", the Priest said he did not check on what churches applicants for baptism went to, or if they had watched particular programs. The Priest also said he could not recall previously having failed to baptise someone who had requested it. [footnotes omitted] 7 No issue was taken with the FCC's summary. 8 The Tribunal did not accept the first appellant's evidence about her uncle introducing her to Christianity and giving her religious mentorship. Paragraph 29 of the Tribunal's decision recorded that: …it was put to [the first appellant] that she had claimed that her uncle… with whom she had lived was allegedly Christian and gave her religious mentorship and yet nobody knew what church he went to or how or in what religion he was married. She had also claimed that he was too busy to attend church yet there was a church very close to his house that had services before and after work on weekends. Concerns were raised that [her] uncle… did not appear to have any practical interest in practising Christianity and yet it was claimed that he acted as a Christian mentor to her. 9 At [44] the Tribunal found as follows: I do not accept that her uncle … provided her religious mentorship. Although she claimed that he had been a Christian for 12 years and had provided her with Christian reading material and answered her questions about Christianity there is nothing to indicate that he practices, or has any affinity with, or knowledge of Christianity. The parish priest of the Anglican Church close to his house had been there 12 years and has never seen him. When asked what church he went to the [first appellant] didn't know but knew that he wasn't going to church when she stayed with him in 2008. It is not plausible that someone who himself has no contemporary relationship with Christianity would seek to guide someone towards this particular religion or be in a position to answer questions regarding it with any authority. 10 At [45] and [46] the Tribunal further found as follows: I do not accept that he did not attend church because he worked seven days a week and needed to pay bills before and after work, given that churches conduct services at a wide variety of times to cater for such busy, but committed people. His inability to provide a reference from any church as requested confirming his attendance further strengthens the finding of the Tribunal that he does not practice or have any connection or interest in Christianity. I also find that the [first appellant's] vagueness about the uncle's marital arrangements was deliberately conducted to hide the fact that he has been married in accordance with Islamic marital practices in Iran. Given that Article 1059 of the Iranian Civil Code [Iranian Penal Code , accessed 29 October 2013] prohibits the marriage of a Muslim woman with a non-Muslim man, and that it has not been indicated that the wife is non-Muslim then [her uncle] must have presented himself to the Iranian authorities as a Muslim. 11 Based on these and other findings, the Tribunal did not accept that the appellants had any pre-existing interest in Christianity prior to arriving to Australia nor did it accept that they had come to the attention of the Iranian security authorities because of their interest in Christianity. 12 Before the FCC, the appellants contended that the Tribunal did not comply with s 424A(1) of the Migration Act 1958 (Cth) ("the Act"). Section 424A(1) provides as follows: Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. 13 The particulars in the grounds of review contained in the application to the FCC identified four items said to be 'information' for the purposes of s 424A(1). Only two of the four items of information were pressed. 14 The first item of information was said to be the statement at [29] of the Tribunal decision in the second proceeding: It was put to [SZTQC] that nobody seemed to know what church her uncle had worshipped at, and she claimed he was working two jobs and didn't think he had gone to church since she had been living with him…She didn't know whether her uncle now went to church… 15 The second item of information was said to be the evidence given by Fr Salmon in the second proceeding (referred to at [38] and [60] of the judgment in the second proceeding) that he could not recall previously having failed to baptise someone who had requested it. 16 The FCC, at [25] to [27], rejected the contention that the first item was "information" within the meaning of s 424A of the Act, reasoning as follows: As I have already noted, the first item of information is the Tribunal member's putting to one of the first [appellant's] sisters at the Second Proceeding hearing that "nobody seemed to know what church her uncle worshipped at". It is true, as counsel for the [appellant] submits, that the fact that "nobody" in the first [appellant's] family knew what church the Uncle attended was a matter that undermined the [appellant's] claim. Assuming "nobody" was intended to include the first [appellant], the first [appellant's] not knowing what church the Uncle attended is a basis for inferring that the Uncle did not attend church; and from that it could be further inferred that the Uncle was not a Christian and that, contrary to the first [appellant's] evidence, the Uncle did not mentor the first [appellant's] becoming a Christian. In my opinion, the first item of information is not "information" within the meaning of s 424A(1) of the Act. It is not evidentiary material or documentation. It is a determination the Tribunal made on the basis of other evidence. The "information" to which s 424A(1) applies "does not encompass the tribunal's subjective appraisals, thought processes or determinations". [footnotes omitted] 17 The FCC accepted that the second item was "information" within the meaning of s 424A. 18 The FCC went on to consider whether the Tribunal had breached s 424A(1) of the Act, assuming for that purpose that the first item was also 'information' within the meaning of s 424A. The FCC held 'no,' reasoning at [31] to [33] as follows: When considering this question, both in relation to the first and second items of information, the question is not simply whether it could be said the Tribunal had the items of information in its mind at any time. What must be demonstrated is that the Tribunal had the information in its mind as part of a chain of reasoning, the conclusion of which would be the affirmation of the delegate's decision, and that the Tribunal intended to affirm the delegate's decision on the basis of that reasoning. In my opinion, it is an available inference that at some time before he affirmed the delegate's decision the Tribunal member did have in mind both items of information. That inference would arise from the fact that the Tribunal member prepared the Second RD at around the same time he prepared the reasons for decision in which he affirmed the delegate's decision in the case before me. It cannot be further inferred, however, that at some stage the Tribunal considered that either item of information would be the reason or a part of the reason for affirming the delegate's decision. The Tribunal does not in its reasons for decision refer to either item of information; nor is there anything in its reasons for decision which suggest that the Tribunal relied on either item of information as a reason, or part of a reason, for affirming the delegate's decision. The decision the Tribunal made could easily be supported solely by reference to the matters the Tribunal explicitly referred to and relied on in deciding to affirm the delegate's decision. To conclude the Tribunal did at some stage consider either or both items of information would be the reason or a part of the reason for affirming the delegate's decision would imply one of two possible sets of facts. One is that the Tribunal at some stage went so far as to formulate a chain or chains of reasoning which included either or both items of information which the Tribunal intended to employ to affirm the delegate's decision (at which point, counsel for the [appellants] submits, the obligation to give the particulars referred to in s.424A crystallised), but then withdrew its intention to employ that chain or those chains of reasoning. The other possibility is that the Tribunal did not abandon its intention to employ the chains of reasoning that contained the items of information, but in fact relied on them without referring to them in its reasons. It is not possible rationally to infer either possible set of facts from the fact that the Tribunal member was aware of the items of information. Whether or not the Tribunal used the items of information in either of these ways cannot even reach the level of conjecture; at best, it is a matter for speculation. 19 The grounds of appeal before this Court allege the following: 1. The learned Federal Circuit Judge (primary judge) erred in holding that the respondent Tribunal complied with s 424A of the Migration Act 1958 (Cth) (Act). His Honour ought to have held that the Tribunal contravened that section because: Information about the Uncle a. The primary judge correctly held at [32] that the Tribunal was aware that "nobody" (including, by logical deduction, each of the [appellants] in SZTPY v Minister for Immigration and Border Protection [2015] FCCA 260), was aware where the first [appellant's] brother attended church (Uncle Information); b. The primary judge erred in holding that the Uncle information was "information" within the meaning of s 424A(1). That finding is inconsistent with the primary judge's finding in SZTPY v Minister for Immigration and Border Protection [2015] FCCA 260 at [22]. c. The primary judge erred in holding that that [sic] the Tribunal did not consider that the Uncle Information would be a reason, or part of the reason, for affirming the decision under review. Information about the Priest d. The primary judge correctly held at [32] that the Tribunal was aware that the Priest who gave evidence of having baptised the [appellants] could not recall ever failing to baptise someone who had requested it (Priest Information); e. The primary judge erred in holding that the Priest Information was not "information" within the meaning of s 424A(1). f. The primary judge erred in holding that that [sic] the Tribunal did not consider that the Priest Information would be a reason, or part of the reason, for affirming the decision under review. 20 The 'information' to which s 424A(1) refers is 'information' which 'would be' the reason or part of the reason for affirming the decision. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 the High Court stated at [17] that: The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. In other words, s 424A depends on the Tribunal's 'consideration,' that is, its opinion, at the time when the Tribunal became aware of the information, that such information would be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 at [24]. Furthermore, the information must be information which 'would,' not which 'could' or 'might,' be the reason or part of the reason for affirming the decision under review: SZLFX at [25]. 21 The appellants argued that s 424A was breached in relation to the first item of 'information'. It was argued that it was clear that the Tribunal in the 9 October 2015 hearing was aware of the significance that neither appellant could say where the uncle went to church. At the 14 October 2014 hearing in the second proceeding, the Tribunal obtained the fresh information that the appellants in that proceeding also could not say where he went to church. It was submitted that the fresh information was 'plainly something' that the Tribunal considered 'would be a reason or part of the reason for affirming the decision under review'. 22 The appellants' argument that s 424A was breached in relation to the second item of 'information' rested on the proposition that Fr Salmon's evidence in the second proceeding was "information" that the Tribunal had in its mind which 'had a tendency to undermine the appellants' claims [in this matter] that their baptism in Australia supported their claims to be Christian'. It was submitted that the evidence 'was plainly significant to the Tribunal member' in the second proceeding as that evidence was mentioned at [38] and repeated at paragraph [60] of that decision. 23 The appellants argued that the FCC therefore should have found that s 424A was breached and fell into error by focussing on the Tribunal's reasons for its ultimate decision, contrary to the authority in SZBYR that the words 'would be' require the operation of s 424A(1)(a) to be determined in advance and independently of the Tribunal's reasons. The appellants argued that the FCC also erred by holding that it was a requirement that the Tribunal must 'intend' to affirm the decision under review because of the information, thereby placing an inappropriate gloss of the expression 'would be' in s 424A. These submissions cannot be accepted. 24 No error in the approach of the FCC has been shown. Although the assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal became aware of the information, that is not to say that the Court cannot have regard to the reasons of the Tribunal to determine whether the Tribunal had the requisite state of mind. Whilst the assessment is not dependent upon whether the information did form part of the Tribunal's reasons, the reasons why the Tribunal affirmed the decision under review may be relevant in determining whether the inference can be drawn that, at an antecedent time, the Tribunal must have reached the state of mind that it considered that the information would be the reason, or part of the reason, for affirming the delegate's decision. In the present case, the evidence in the second proceeding was not mentioned in the Tribunal's reasons and there was no other evidence to show positively that the Tribunal did consider that the evidence in the second proceeding to be relevant to its decision in this case. 25 Although the appellants asserted that the Tribunal formed the requisite opinion, it is clear from the Tribunal's reasons that its decision to affirm the delegate's decision was based on its finding that the appellants were not telling the truth and had fabricated their claims. The Tribunal did not accept the appellants' evidence as reliable, credible or truthful. That conclusion was based on a number of matters including the appellants' inability to answer basic questions concerning the uncle's practice of the Christian religion. It is therefore not a necessary inference that the Tribunal had considered that the evidence in the second proceeding would be the reason, or form part of the reason, for affirming the decision under review in the circumstance where the Tribunal's reasons show that the adverse credibility findings against appellants were based on their own testimony, not upon anything that arose in the second proceeding. 26 Moreover, the FCC did not pose the wrong test to determine whether s 424A had been enlivened, although the FCC used the language of 'intention'. It is clear on a proper consideration of the reasoning of the FCC, that the test applied by the FCC in its analysis was whether it may be inferred that the Tribunal considered that the particular information would form part of its reasons to affirm the decision. 27 In view of my conclusion, it is unnecessary to consider whether the FCC was correct to hold that the first item of 'information' was not information for the purposes of s 424A. 28 The appeal should be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.