WALT v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2007-01-22|Before: Siopis JJ

INTRODUCTION 1 On 6 February 2006 a judge of the Court dismissed an application under s 39B of the Judiciary Act 1903 (Cth) to quash a decision of the Refugee Review Tribunal given on 20 May 2005. The Tribunal affirmed a decision of a delegate of the first respondent not to grant to the appellant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act). 2 The appellant is a young man. He is now only 18. He is a Kenyan national. He arrived in Australia as a stow-away on 5 November 2004, and very promptly lodged an application for a protection visa. He claimed to be a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (the Convention) for reasons of his religion and his membership of a particular social group. 3 The appellant said that he was brought up in a strict Muslim family, in a town in which the majority of the community were strict Muslims. At the age of 11 he claimed to have converted to Christianity, after being exposed to some Christian friends in school. He went home one afternoon wearing a Christian cross, and announced to his parents that he had become a Christian. He then claimed that his family disowned him and drove him away from the family. He went to stay with a friend, who was a Christian, in the same town. After a few months, at the friend's urging, he returned to his family but was again driven away, and he was (he claimed) shot with an arrow in the leg. His friend and his friend's family were reluctant to give him further haven for fear of the attitude of the community, and so at the age of 12 years, he fled to South Africa. At the time of the Tribunal's hearing and decision, he was 17 years old. He had stayed in South Africa for some time before stowing away and arriving in Australia. He claimed that, whilst in South Africa, he contacted his father in 2003, and was told that, if the family caught the appellant, he would suffer. 4 He said he left South Africa because he feared his family would find him there and harm him. He also told the Tribunal that he feared being returned by the South African authorities to Kenya where he would be harmed by his family. 5 The appellant also claimed that he was a member of a particular social group, namely street kids in Kenya, who are harassed or imprisoned by the police and are vulnerable to physical and sexual abuse. 6 An additional alternative claim was that the appellant was a member of a particular social group of young persons under 18 without homes or guardians, and so vulnerable to similar harm, from the Kenyan authorities and others.

THE TRIBUNAL'S DECISION 7 The Tribunal simply did not believe the appellant's claims. 8 It noted that the appellant did not even have a rudimentary knowledge of Christianity. The evidence of the appellant at the Tribunal's hearing clearly justifies that observation. The Tribunal accepted that, as the appellant was only 11 at the time of his claimed conversion, he could not be expected then to have any firm understanding of Christianity, and that it should assess the reliability of his evidence making due allowances for his age. But it also pointed out that there was no inhibitant to the appellant over the succeeding six years having pursued his claimed conversion to Christianity whilst in South Africa, and in Australia, so that he had a grasp of the "basic tenets" of the religion. The appellant, it observed, had clearly not done so. Over that period, the appellant had attended church only once. He had no bible. He could explain his preference for Christianity over Islam only as it was an easier religion to practise. The Tribunal expected a person such as the appellant, who claimed to have given up his family and his background upbringing for his religion of choice, to have acquired some understanding of the tenets of that faith and its beliefs. 9 The Tribunal concluded as follows: "The Tribunal finds the account of the applicant's reasons for his conversion, the situation around his conversion and events that had happened quite unsatisfactory. Although the Tribunal accepts that although he was only 11 or 12 years old at this time, it was a momentous occasion and step in his life, which had huge ramifications and the Tribunal would have expected his account of his discussions with his father, his family and his community to be significant and something he could provide details of. His account of seeking protection from the authorities was vague and he appeared to change his evidence when confronted by new details. For all these reasons the Tribunal does not accept that it was his religious beliefs or tenets that caused him to leave Kenya. The Tribunal does not accept that it was his family's or village's response to his religious beliefs that caused him to leave. The Tribunal finds that the applicant is not a convert to Christianity at most he has ceased being a practising Muslim." 10 The Tribunal also considered whether the appellant might fear mistreatment, or might have been mistreated, because he was perceived as having converted to Christianity. It referred to several matters which it regarded as significant. The appellant first claimed that, when he had first returned to his village he was again chased away and his brother had fired an arrow at him; later he said he was unaware who fired the arrow at him. There was, it thought, an inconsistency between the appellant's claim that his family cast him out because of his conversion, and his claim that they would pursue him to South Africa to harm him. And, it noted, the appellant did not profess or show a level of religious conviction which would have led him to suffer the isolation from his family and his community which he asserted. It also noted the appellant's evidence of ongoing physical and verbal abuse from his family, before his claimed conversion. 11 For those reasons, the Tribunal did not accept that the appellant's family or his village tried to harm him because he had said he was converting to Christianity, or that there is a real chance that he would be harmed by his family or by anyone else in the village by reason of a perception that he had so converted. 12 There were additional, and alternative, reasons why the claims based on the appellant's claimed conversion to Christianity failed. It referred to changes in societal attitudes in Kenya so that abandoned or threatened children can obtain protection from their parents or from others. It concluded the appellant, if he were to return to Kenya, would be able to obtain state protection from any harm he feared from non-state actors such as his family or other local villagers. Secondly, the Tribunal found that the appellant in any event could reasonably relocate to another part of Kenya away from his village. It noted in that regard that Kenya is predominantly Christian, that the appellant had in South Africa learned a number of skills which it thought he would be able to use to gain employment in Kenya, that the appellant had been in constant employment in South Africa, and that he speaks English, Swahili and some Zulu. 13 The Tribunal also rejected the appellant's claim to have a well-founded fear of persecution by reason of his membership of a particular social group, namely street kids. Its finding rejecting the appellant's claim to have converted to Christianity meant that he was not a member of that social group as he could return to his family. In addition, the Tribunal accepted that there is a social group of street kids in Kenya (those who live on the street and survive by begging and by minor crime) who are subjected to attention of the Kenyan authorities, but it was not satisfied that the appellant would be or become such a street kid if he returned to Kenya. It had regard to his skills and resources, and his work history whilst in South Africa, and his age, to conclude that the appellant would not fall into that group even if he were not able to be reconciled with his family; he would (it found) get continuous employment and so be able to get suitable accommodation. He would not therefore come to the attention of the Kenyan authorities as a member of a particular social group if he were to return to Kenya. 14 One submission on behalf of the appellant was that he had been denied his rights as a child to parental support including a home, education and support. The Tribunal rejected any suggestion that the fact that the appellant had not had those benefits from age 11 was for a Convention reason, or that he would be denied those benefits for a Convention reason if he returned there. 15 Its conclusions are expressed in the following passage: "The Tribunal therefore finds that the applicant does not have a well founded fear for reasons of his religion. He does not have a well-founded fear of persecution for reasons of any perceived religion. He does not have a well founded fear for reasons of his membership of a particular social group of street children. Further, any denial of the rights of the child that he has experienced or may experience in the future would not be due to a Convention reason and therefore does not amount to persecution within the meaning of the Convention. The Tribunal has considered the applicant's case cumulatively and finds there is no real chance that he will be persecuted for a Convention reason if he was to return to Kenya, and therefore he is not a refugee."

THE DECISION AT FIRST INSTANCE 16 The appellant first contended that the Tribunal had committed jurisdictional error because it had failed to ask the correct question in relation to the appellant's claim to have converted to Christianity. He argued that the Tribunal wrongly took into account the perceived deficiencies in his knowledge as a Christian after his "conversion" when considering whether he had converted to Christianity at that age. He also contended that the Tribunal had wrongly filtered his claim through its own views of what were appropriate understandings and beliefs for a Christian to have. Reliance was placed upon the observations of Gray J in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548 at 557, [16] (Wang). 17 The learned judge at first instance rejected those contentions. His Honour regarded it as appropriate to address the appellant's creditworthiness by assessing his commitment as a child to Christianity in part by his lack of knowledge of the Christian religion, and by having regard to the evidence of his conduct after the claimed conversion. Taking into account that evidence had not led the Tribunal to ask the wrong question (which the appellant submitted was whether he had converted at the age of 11 years). 18 The appellant also contended that the Tribunal had not properly considered whether there was a real chance of him being persecuted because he may be perceived as having converted to Christianity. 19 The learned judge at first instance dealt with that contention by determining that the Convention requires a "manifestation or practice of personal faith or doctrine in a like-minded community and does not extend to the perception of religious belief or imputed religious belief". His Honour thought that conclusion flowed from the Full Court decision in WAEW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 260 at [14] and [17]. Consequently, it was not necessary to address that issue. 20 The appellant's next contention at first instance was that the Tribunal had failed to consider whether he had a well-founded fear of persecution by reason of being a child apostate of Islam. 21 That contention was rejected on three grounds. The first was that it was not a claim made by the appellant distinct from his claim to have converted to Christianity. Secondly, his Honour concluded, the Tribunal's findings "inextricably embrace consideration" of the possibility that the appellant would be a child apostate of Islam. Thirdly, the findings that Kenya is a predominantly Christian country, and that there was state protection available to the appellant from violence from non-state actors meant any such claim must fail. 22 The appellant also attacked the conclusion of the Tribunal that there was state protection available to him, because it did not address the circumstances of his particular village. 23 The learned judge did not accept that contention, because the Tribunal's more general findings as to the availability of state protection encompassed the appellant's particular village. His Honour also pointed out that the issue did not arise, in any event, because the Tribunal was positively satisfied that the appellant was not at risk of violence from his family or other residents from his village for the claimed Convention reason, namely his conversion to Christianity. And finally, on this contention, his Honour pointed out that the protection of his country was generally available to the appellant. 24 The Tribunal's conclusion about relocation was also attacked for jurisdictional error. The appellant argued that the Tribunal had not in fact addressed the practical realities of the appellant relocating within Kenya, and had not taken into account the risk that his family may seek to find and harm him. 25 His Honour rejected the first of those contentions, as he considered the Tribunal had precisely addressed the practical realities of the appellant relocating within Kenya, and he noted there was nothing to indicate that it might be unreasonable for the appellant to relocate. The second matter argued on this issue, his Honour pointed out, asserted the existence of a risk inconsistent with the Tribunal's finding that the appellant could return to the support of his family.

THE GROUNDS OF APPEAL 26 Each of the five matters argued at first instance was re-argued on the appeal. They can conveniently be described as:

the conversion ground;
the perceived conversion ground;
the apostasy ground;
the state protection ground; and
the relocation ground. Counsel for the appellant accepted that, for the appeal to succeed, the Court would need to find error on the part of the learned judge at first instance, and on the part of the Tribunal, in at least three respects. That is, counsel accepted that error must be shown in at least one of the conversion ground, the perceived conversion ground or the apostasy ground. The Tribunal was satisfied that the appellant did not have a well-founded fear of persecution for any of those reasons, and the appellant needed to show that its approach was in error. Counsel then accepted that the appellant also had to show error in respect of both the state protection ground and the relocation ground, because his fear of harm was from non-state actors, and he needed to persuade the Tribunal that he would not receive state protection from those non-state actors and that he could not reasonably relocate elsewhere within Kenya. The Tribunal's reasons took those two matters as alternative and additional reasons for affirming the decision under review, assuming one or other of the bases of the appellant's claimed fear of harm.

(1) The conversion ground 27 The Tribunal's reasons indicate that, in concluding that the appellant did not have a well-founded fear of harm for having converted to Christianity because he had not at the age of 11 converted to Christianity, it had regard to what he had done after his claimed conversion in practising and learning about the Christian religion, and it had regard to his lack of any real knowledge of the basic tenets of Christianity. 28 In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous. 29 But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person's beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion. 30 We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his "conversion", or at the time of the Tribunal's hearing. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country: cf Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 per Merkel J at 384-385, [11]-[15]. 31 It was also open to the Tribunal, given the significant consequences of his "conversion" which the appellant asserted, to explore what he had done or learned in the practise of his new religion after age 11. It was his "conversion" which, he claimed, isolated him from his family and his village and made it unsafe to return to the country of his nationality. The issue for the Tribunal was whether the appellant had a well-founded fear of persecution by reason of his religion if he were to return to Kenya. His religious beliefs and practices up to the time of the Tribunal's decision were relevant. A "conversion" some years ago which did not lead to any real commitment to the new religion thereafter, so that the appellant could not now be found to be a practising Christian, would not be consistent with the appellant's ongoing claim to be a Christian so that he could not safely return to Kenya. 32 The Tribunal, as its reasons indicate, took a range of factors into account in rejecting the appellant's claim that he had converted to Christianity at age 11. In addition to his knowledge of Christianity at that time and subsequently, and the evidence that he had not practised Christianity in any identifiable way, it considered his explanation for his claimed conversion, the way in which he said he came to be converted, the fact that he had not consulted his family or others about his plans or developing beliefs, and that he was vague in his account of seeking protection from the authorities and appeared to change his evidence when questioned on such matters. They were all relevant matters for the Tribunal to consider. 33 In our view, no error by the learned judge at first instance, nor any jurisdictional error by the Tribunal, is established on this ground.

(2) The perceived conversion ground 34 We do not ascribe to the Full Court (Marshall, Weinberg and Jacobson JJ) in WAEW the view that a person could not have a well-founded fear of persecution by reason of that person's perceived or imputed religious beliefs. The issues on the appeal in WAEW, referred to in [15]-[16] of the decision of the Full Court, did not include that issue. There was no claim of persecution for religious beliefs, nor for any perceived religious beliefs. The fact that the appellant was a "non-Muslim" was not said to have been conveyed orally or by actions of the appellant, so as to have activated any adverse reactions. The issue therefore simply did not arise. 35 His Honour's observation (referred to in [19] above) appears to flow from a passage in WAEW at [14]. Whilst reciting the reasons for the decision under appeal, the Full Court noted: "Finally, his Honour considered that the RRT was correct to dismiss the appellant's claim based on his contention that he had a well-founded fear of persecution by reason of the fact that he was a non-Muslim. He referred in that regard to Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 which held that the term "religion" in Art 1A(2) of the Refugees Convention required the element of manifestation or practice of a religious faith in community with others. Absent any such manifestation or practice, there was no basis on which the appellant could be found to have a well-founded fear of persecution by reason of religion." That passage does not refer to a claim that a person had a well-founded fear of persecution for reasons of an imputed or perceived religious belief. 36 Wang itself concerned a claim of persecution based upon an actual religious belief; the issue as explained in the judgment of Merkel J (with whom Wilcox J agreed) at 555, [33] concerned whether the fear of practising a permitted religion in an unpermitted way, that is a way made unlawful by the country of nationality, is a fear of persecution by reason of religion. Indeed, at 567, [90] Merkel J expressly acknowledged that in an appropriate case persecution can occur by reason of an imputed religious belief. Wilcox J added some additional comments, including at 550, [5] that: "… the concept of 'religion', in Art 1A(2) of the Convention on Refugees, anyway includes the element of manifestation or practice of a religious faith in community with others …" That observation appears to have flowed into the passage in WAEW cited in [35] above. But it does not support, and in context was not intended to support, the proposition that there cannot be persecution for an imputed religious belief under the Convention. Wilcox J expressly associated himself with the reasons of Merkel J which expressed the contrary proposition. 37 In the context of persecution for political beliefs or for membership of a particular social group, the High Court has held that persecution may occur for perceived political beliefs or for perceived membership of a particular social group: see e.g. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Gaudron J at 416; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Gummow J at 284 and per Dawson J at 240; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 per Kirby J at [83] fn 56. In SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FLR 137, Cooper and Carr JJ appear to have proceeded on the basis that a person may qualify as a refugee if that person has a well-founded fear of persecution for imputed or perceived religious beliefs. 38 There is no apparent reason in principle why persecution could not occur for imputed religious beliefs, as well as for imputed political beliefs or imputed membership of a particular social group. Generally, imputed religious beliefs will arise from manifested behaviour interpreted by the potential persecutor. It is likely to be a very rare case where, without manifest behaviour indicating the commitment to a religion, or interpreted as indicating the commitment to a particular religion, the state authorities (or indeed any non-state group) will discern the existence of religious beliefs. However, that will not necessarily be the case. 39 In this matter, the appeal on this ground must fail because the Tribunal did not commit jurisdictional error in addressing the claim. The Tribunal's reasons for its conclusion that the appellant did not have a well-founded fear of persecution for reasons of religious beliefs imputed to him are briefly explained in [10]-[11] above. It rejected as a fact that there was any such perception about the appellant because it rejected his claims of the conduct - his assertion of his conversion - which might have induced them. There were other reasons also contributing to that conclusion. It did not misunderstand or misapply the law, and its findings were reasonably based on the material before it.

(3) The apostasy ground 40 It is correct that apostasy does not necessarily involve conversion: W161/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 285 per Lee J at [31], [32]. However, as the learned judge correctly concluded, in this matter the appellant's apostasy (if his claim were confined to that) was evidenced on his own case by the expression of his conversion to Christianity. There was no separate conduct on his part by which his apostasy would have been apparent. And the Tribunal was satisfied that the asserted conduct had not occurred, and did not believe the appellant about that part of his evidence. For reasons already given, its conclusion on that matter was not infected with jurisdictional error.

(4) The State protection ground 41 As the Tribunal decided that the appellant did not have a well-founded fear of harm for reasons of his religious beliefs or imputed religious beliefs, it was probably unnecessary to address the issues of the adequacy of state protection, and of relocation. The Tribunal's conclusion on the existence or otherwise of that fear, and the reason for that conclusion, were firmly expressed, and without any indication that the Tribunal was in any doubt: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576. 42 There was no suggestion, nor any evidence, that the Kenyan authorities would not take reasonable measures to protect the lives and safety of its citizens, including by the provision of an appropriate criminal law and of a reasonably effective and impartial police force and justice system: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 per Gleeson CJ, Hayne and Heydon JJ at 11, [26]. 43 Consequently, since it was otherwise reasonable to relocate within Kenya, the appellant's claim must have failed. The Tribunal also had regard to the availability of state protection in concluding that the appellant (assuming his fear of his family and villagers was real, contrary to the Tribunal's finding) did not have a well-founded fear of persecution and in concluding that he was unwilling to avail himself of the protection of Kenya. On both those aspects, the Tribunal identified the material it relied upon. It did not expressly conclude that that material related to the appellant being offered protection by the authorities if he returned to his village, as distinct from Kenya more generally. But it did recognise that his expressed concern was "localised", and it addressed in that context whether the Kenyan authorities' protection would extend to him. The material it relied upon, although not geographically specific to his village, was capable of being understood as applying generally, including to his village. 44 For those reasons, in our view, the Tribunal did address the issue of state protection in relation to the appellant's particular circumstances and it made findings on that topic which were available to it. There was no jurisdictional error in its consideration of this aspect of the matter.

(5) The relocation ground 45 The short issue argued under this ground was that the Tribunal did not give consideration to the practical realities facing the appellant if he were to relocate within Kenya. There is no doubt that the Tribunal was required to address those practical realities: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Black CJ (with whom Whitlam J agreed) at 442-443. 46 In our judgment, the Tribunal (as the learned judge at first instance found) did properly address those practical realities. It had regard to the fact that Kenya is predominantly Christian, that state protection against family-incited violence and other non-state actors is available, and to the appellant's personal history. His personal history included his language skills, his age, his employment whilst in South Africa and the skills he thereby acquired, and his demonstrated ability to live independently in South Africa. It expressed the view which was reasonably available to it that his employment and language skills were transportable to, that is likely to be of use in, Kenya. 47 As its reasons indicate, the Tribunal was alert to the issue of whether the appellant's activities in South Africa were likely to indicate his capacity to gain employment and adequate accommodation in Kenya, away from his village. It specifically raised that with the appellant's advisors. The response focused on the treatment of "street kids" in Kenya, but by reference to material concerning Kenya the Tribunal was satisfied that the appellant would not fall within that category of persons if he were to return to Kenya. There was nothing else put to the Tribunal to suggest the appellant would be unable to take advantage of his language and employment skills, or as the Tribunal put it his "ability and resourcefulness", in Kenya.

CONCLUSION 48 For those reasons, the appeal must be dismissed. The appellant must pay to the first respondent her costs of the appeal. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Jacobson & Siopis.

Solicitor for the Appellant: Catholic Migrant Centre

Solicitor for the Respondent: Australian Government Solicitor

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