SZVVZ v Minister for Immigration and Border Protection

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This is an appeal from the decision of the Federal Circuit Court of Australia in SZVVZ v Minister for Immigration and Border Protection & Anor [2016] FCCA 1077 on 6 May 2016. The primary Judge dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal).

Background 2 The appellant is a citizen of Bangladesh who first arrived in Australia in June 2012 on a temporary work and holiday visa. His visa was valid until 27 June 2013, and on 26 June 2013 he applied for protection under the Migration Act 1958 (Cth) (the Act). 3 The basis for the appellant's claim for protection was that he had converted from Islam to Christianity, and that he would suffer harm from persecution if he returned to Bangladesh as a Christian. He claimed that he had returned to Bangladesh during the time of his visa and informed his family that he had converted to Christinaity, and that their reaction was that of horror and rejection. He then returned to Australia, and continued attending Church. He claimed he feared that if he returned to Bangladesh he would be harmed and abused by the general Muslim population as a converted Christian. 4 The appellant submitted to the Department documents including a psychosocial report (which diagnosed him as meeting diagnostic criteria for Major Depressive Disorder with some delusional thinking, poor memory and poor concentration) and supporting letters from the Salvation Army and Jehovah's Witnesses. He also gave evidence to the Tribunal about his worship as a Christian. 5 The Tribunal noted that it had also received anonymous allegations concerning the appellant, asserting that his story of being a Christian was fraudulent. 6 The appellant appeared before the Tribunal with the assistance of an interpreter and gave detailed evidence. The nature of his evidence and the questions asked by the Tribunal at the hearing are set out by the Tribunal over a number of pages of its reasons. The Tribunal also noted that it received a submission from the appellant's advisor after the hearing setting out further information. 7 The Tribunal accepted that the appellant was raised in the Muslim faith and that his family was devout. However it doubted his claim that he had embraced the Christian faith by June 2013 as he claimed and that he had told his family during his return visit to Bangladesh. The reasons the Tribunal gave for this view can be summarised as: On the appellant's evidence, by the time he left Australia for Bangladesh the sum total of his claimed exposure to Christianity in Australia was one visit to an Adventist Church and a few visits to a Jehovah's Witnesses church. The Tribunal was not satisfied that the brief duration of this activity, the few occasions on which he actually attended these churches and the fact that he ceased any attendance early in 2013 were consistent with him either becoming a Christian in any meaningful sense or him thinking of himself as a Christian by June 2013. The Tribunal noted the marked vagueness of the appellant's evidence in respect of his activity in this regard. The Tribunal was not satisfied that it was at all credible that the appellant could have returned to Bangladesh intending to remain there for the rest of his life as a convert to Christianity without understanding the difficulties this would create for him. The Tribunal noted that the appellant was an educated and mature person, and could not have been under any misapprehension about his family's likely reaction to news that he had converted. Further, the appellant's claims that he was mentally disordered in Australia were inconsistent with his evidence that at the time he was dealing with a migration agent, able to make the arrangements for his return, and working in a restaurant. The Tribunal also noted that while his family's rejection of his conversion to Christianity could have been a possible explanation for his return to Australia after only a brief stay in Bangladesh, it was also likely that he wished to return to Australia before his visa expired. The Tribunal considered it likely that the appellant was in discussion with his migration agent well before his departure for Bangladesh. Accordingly the Tribunal was not satisfied that the appellant informed his family of his conversion to Christianity or that he was ostracised by them for that reason. The Tribunal noted the appellant's claims that he began attending the Salvation Army church after his return to Australia, but considered that this activity was undertaken for the purposes of strengthening his claim to be a refugee and, as required by s 91R(3) of the Act, disregarded this conduct. The Tribunal gave no weight to the anonymous information sent to it in relation to the appellant. 8 In relation to the evidence that the appellant was suffering from mental health issues, the Tribunal said: Having had the opportunity to observe the Applicant at some length at the hearing I accept that he appeared nervous and mildly agitated at some points. Some questions had to be put to him more than once before he was able to understand them. Nevertheless, he retained his composure throughout the hearing and, once he had understood the questions put to him, had little difficulty in responding to them. Overall, I consider that he was able to participate effectively in the hearing and that he was not prevented by any emotional, mental or cognitive difficulties in responding to questions and articulating his claims to fear harm in Bangladesh. 9 The Tribunal concluded that it was not satisfied that the appellant had converted to Christianity at the time he returned to Bangladesh, that he was rejected and ostracised by his family for that reason, or that he had converted to Christianity following his return to Australia. Accordingly, the Tribunal was not satisfied that there was a real chance the appellant would suffer serious harm in Bangladesh for the Convention reason of his religion and that the appellant was a person in respect of whom Australia had protection obligations pursuant to s 36(2)(a) of the Act. 10 Further, the Tribunal was not satisfied that the appellant met the criterion in s 36(2)(aa), namely being a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Specifically the Tribunal said: As noted, I am not satisfied that the Applicant had, in fact, abandoned his Islamic faith and converted to Christianity at the time he returned to Bangladesh in June 2013. Nor, having carefully considered the information before the Tribunal concerning his involvement with the Salvation Army from August 2013 to the present, am I satisfied that he has now converted to Christianity … … In light of the information before the Tribunal I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Bangladesh there is a real risk that he would suffer significant harm as defined in s. 36 (2A). There is no suggestion that he satisfies s. 36 (2) on the basis of being a member of the same family unit as a person who satisfies s. 36 (2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s. 36 (2).