SZNRF v Minister for Immigration & Anor [2009] FMCA 1119 (22 October 2009)

Last Updated: 13 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1119

MIGRATION – Review of RRT decision – applicant a citizen of Ghana – where Tribunal not satisfied that applicant had converted to Catholicism – whether, in reaching that finding, Tribunal took on the role of arbiter of doctrine – where a separate ground for Tribunal decision existed – where applicant alleged interpretation errors but did not produce any evidence.

Migration Act 1958, s.424A

WALT v Minister for Immigration [2007] FCAFC 2 SBBC v Minister for Immigration [2006] FCAFC 129 SZBYR v Minister for Immigration [2007] HCA 26 Mobil Oil Canada Limited v Canada -Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219

Applicant:

SZNRF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1410 of 2009

Judgment of:

Raphael FM

Hearing date:

22 October 2009

Date of Last Submission:

22 October 2009

Delivered at:

Sydney

Delivered on:

22 October 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1410 of 2009

SZNRF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Ghana who arrived in Australia on 11 November 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 14 November 2008. The delegate of the Minister refused to grant a protection visa on 11 February 2009 and the applicant applied to the Refugee Review Tribunal for a review of that decision on 27 February 2009. The Tribunal arranged a hearing which the applicant attended together with an interpreter. On 14 May 2009 the Tribunal determined to affirm the decision not to grant the visa and handed that decision down on 15 May.
2. The applicant had arrived in Australia on a Jamaican passport in a name that was not his own. He had travelled to Australia via South Africa. The delegate of the Minister in his decision, [CB 50-54], was not satisfied that the applicant was a Ghanaian. This matter was put to rest by the Tribunal who, having heard the applicant speak in the dialects of Northern Ghana with the interpreter, was satisfied that he was indeed a Ghanaian, and the person he claimed to be.
3. The convention ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was that of religion. The applicant told that he had been born and brought up a Muslim but that he had married a Catholic woman and had converted to Catholicism. This caused significant problems within his family particularly with his father who, in early January 2007, gathered the family together and told them that the applicant was the devil. He threatened to have the applicant killed. The applicant claimed that he went into hiding thereafter with the help of the Catholic priest whose congregation he belonged to and by whom he had been baptised. He obtained the false passport and left Ghana.
4. There were two hearings before the Tribunal because the applicant had asked that the priest involved be permitted to give evidence and the Tribunal had agreed. It appears that when first contacted by phone the priest was unavailable in that his phone did not respond and appeared to have been turned off. On the second occasion another priest answered the telephone and by agreement with the applicant he was questioned about his knowledge of the applicant. That knowledge was clearly not as extensive as the knowledge claimed for the first priest in respect of whom a further attempt at telephone contact was made without success. One of the things the second priest, who spoke to the Tribunal, had said was that the applicant’s children had been baptised whereas the applicant had told the Tribunal that they had not. This was one of the several inconsistencies that the Tribunal utilised to conclude that the applicant was not a witness of truth.
5. I have considered the Tribunal decision which has two grounds for refusing the applicant the visa. The first relates to the Tribunal’s failure to be satisfied that the applicant was a convert to Catholicism or had been under the threats from his family that he deposed to. The second was that even if the Tribunal had been wrong about that the applicant could have relocated to a large town such as Accra where, given the fact that the majority of the Ghanaian population is Christian, and given the fact that as he had not been harmed by his father in the period of over a year since the “Fatwa” was announced, the Tribunal considered it unlikely that he would be followed or harmed. The Tribunal also noted that from the independent country information available to it adequate state protection was available.
6. As I informed the applicant and the advocate for the Minister I do have some concerns about the manner in which the Tribunal reached its conclusion concerning the applicant’s conversion. The question of how far a Tribunal can go in questioning an applicant about religious matters is a difficult one. In WALT v Minister for Immigration [2007] FCAFC 2 the Full Bench Mansfield, Jacobson and Siopis JJ said at [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.”
7. On the other hand in SBBC v Minister for Immigration [2006] FCAFC 129 the Full Bench French, Lander and Besanko JJ said at [45]:
   • “Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground. Here, there was ample ground for the Tribunal to find that the appellant’s case was fabricated and, a fortiori, that it could not be satisfied as required by s 91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be a refugee.”
8. And at [47]:
   • “... Where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case.”
9. Whilst I take the view that some of the questioning of the applicant and some of the conclusions reached by the Tribunal about his adherence to the Catholic faith may have bordered upon those of the type which caused concern in WALT I am not so satisfied after reading the Tribunal’s decision in its entirety that the views which it expressed about the applicant’s credibility can be impugned. In any event, as I explained to the applicant, I have taken the view that the independent finding concerning relocation is sustainable in any event.
10. In SZBYR v Minister for Immigration [2007] HCA 26, a case with some similarities to the one before me, a complaint was made that the Tribunal had not complied correctly with s.424A of the Migration Act 1958 (the “Act”). But at the same time there had been findings by the Tribunal which were upheld by this court and by the Federal Court that the claim itself did not have a Convention nexus. At [29] the Court Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ said:
    • “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellant’s case, like Mobil Oil Canada Limited v Canada -Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228 cited in Aala, Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219 was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse.” In this regard the references that were made in the course of argument to the unbundling of a Tribunal’s reasons into “impeachable and unimpeachable parts” were more likely to mislead than to assist. While there may be cases in which a Tribunal’s breach of s.424A affects its findings about the absence of a conventional nexus this was not such a case.
11. I take, from these views expressed by the High Court, that where there is an independent ground for concluding that a person cannot avail himself of Australia’s protection obligations which is not associated with any fault in some other ground, then that second ground will prevail and the court should not grant relief.
12. The applicant appeared before me today. In his application filed with this court on 12 June 2009 he cites only one ground upon which he considered that the Tribunal had fallen into jurisdictional error. That was:

“Interpretation was not accurate.”

13. The applicant speaks English and told the Tribunal that in Ghana, English is the first language. He did, however, have an interpreter with him for assistance if required. He did not bring to the court either the recording or a transcript, although one of the orders of the Registrar made on 2 July 2009 was that he should file any affidavit containing additional evidence including a transcript of the Tribunal hearing by 3 September 2009.
14. In the absence of evidence I am unable to assist in relation to this ground. But I did discuss the matter with the applicant and it seemed to me that his complaint centred around the telephone conversation with the second priest to whom the Tribunal had spoken in English. When the Tribunal pointed out the inconsistency between the priest’s evidence and that of the applicant about his children the applicant told the Tribunal that he believed that the priest did not speak English very well and had had difficulty in understanding the Tribunal’s questions:

“The Tribunal gives no weight to the evidence of Father Ibrahim in this regard. While he confirmed basic details of the applicant’s claims, Father Ibrahim’s evidence as to whether the applicant’s two children were baptised completely contradicted that of the applicant. When asked to comment on this, the applicant said that Father Ibrahim could not understand our conversation properly. The Tribunal considered that Father Ibrahim’s evidence about the preparation for baptism (which he said was not necessary) and how a person learns about the tenants of the Catholic faith was most unsatisfactory and indeed, appeared somewhat evasive. On the whole, and given that the Tribunal is not able to be satisfied that the person it spoke to was really Father Ibrahim, the Tribunal regards his evidence in its entirety as unreliable and disregards it.” [CB 80]

15. The Tribunal had earlier stated:

“... The Tribunal considers the applicant’s evidence that his two children are not baptised to be inconsistent with his claim to have himself been baptised, especially given the evidence that their mother is a Catholic, and finds his explanation that he was too busy and had too many things on his mind to attend to the baptism of his children not to be credible.” [CB 79]

16. This seems to me to be an independent reason for not accepting the baptism of the children, and finding an inconsistency. It does appear to me that the Tribunal has ignored the evidence of Father Ibrahim where it appeared to be detrimental to that of the applicant.
17. For the reasons given above I am therefore unable to assist the applicant in finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $4,500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: