FEDERAL COURT OF AUSTRALIA MZAFH v Minister for Immigration and Border Protection [2016] FCA 57 Appeal from: MZAFH & Ors v Minister for Immigration & Anor [2015] FCCA 2397 File number: VID 474 of 2015 Judge: EDELMAN J Date of judgment: 9 February 2016 Catchwords: MIGRATION – appeal from the Federal Circuit Court – need to show jurisdictional error in judicial review application from the Federal Circuit Court – failure of Federal Circuit Court to address a ground of judicial review – whether the failure would have made any difference Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 65, 91R, 91R(3), 476 Cases cited: ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 Fox v Percy [2003] HCA 22; 214 CLR 118 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 SZORZ v Minister for Immigration and Citizenship [2011] FCA 593 The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Weiss v R [2005] HCA 81; 224 CLR 300 Date of hearing: 9 February 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the First and Second Appellants: The First and Second Appellants appeared in person with the assistance of an Arabic interpreter Counsel for the Third Appellant The Third Appellant did not appear Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: The Second Respondent filed a submitting notice ORDERS VID 474 of 2015 BETWEEN: MZAFH First Appellant MZAFI Second Appellant MZAFJ Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: EDELMAN J DATE OF ORDER: 9 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Orders 1 and 2 of the Federal Circuit Court made on 17 August 2015 be set aside. 3. The matter be remitted to the Federal Circuit Court, differently constituted. 4. The first respondent pay the appellants' costs of the appeal to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT EDELMAN J: Introduction 1 The appellants in this matter are a Lebanese national (the first appellant) and his wife and child. They are appealing from a decision of the Federal Circuit Court which dismissed their application for judicial review of a decision of the Refugee Review Tribunal which is now part of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the decision of a delegate of the Minster (the delegate) to refuse Protection (Class XA) Visas (the Protection Visas) under s 65 of the Migration Act 1958 (Cth) (Migration Act) to the appellants. The appellants applied for judicial review to the Federal Circuit Court but this application was dismissed. This is their appeal from that dismissal. 2 On this appeal the appellants repeated the five grounds which had been asserted before the Federal Circuit Court. Four of those grounds must be dismissed. Counsel for the Minister properly accepted that the fifth ground, construed broadly and by reference to its substratum, raised matters which concern whether the Federal Circuit Court had addressed a ground of judicial review before it. I do not consider that the point was addressed. Nor do I accept that the ground would inevitably have been dismissed, even assuming that this is a sufficient basis to dismiss the appeal in these circumstances. For that reason the appeal must be allowed. The background to this appeal 3 The first appellant is a Lebanese national. The second appellant, his wife, is also a Lebanese national. The third appellant, their child, was born in Australia but the Tribunal found that he is a Lebanese national through his parents' nationality. The appellants were unrepresented and spoke little or no English. 4 The first appellant gave evidence before the Tribunal as follows. He said that he was Sunni but during his studies at university in Beirut he spoke to a lecturer who was a Jehovah's Witness. He said that his father beat him unconscious when he spoke of that religion to his family. He took that faith but decided to keep his new faith a secret because he feared that he would be killed. He followed his lecturer's advice and came to Australia on a student visa. 5 The first appellant arrived in Australia on a student visa in July 2007. The second appellant, who later became his wife, joined him in Australia in 2009. Their child was born shortly after. At about this time, the first appellant's father disowned him, cut off financial support, and threatened to kill him. 6 The first appellant did not pursue his religion as a Jehovah's Witness between 2007 and 2012. He said that he did not know where to find Arabic speaking Jehovah's Witnesses and that he feared that the pursuit of this religion would be reported to his father. He claimed to have been attending Jehovah's Witness gatherings at a Kingdom Hall since 2012. 7 The first appellant said that a man named Fadi had visited his home and seen a Bible on the table. The first appellant denied being a Christian when Fadi asked him. But Fadi told others that the first appellant was a Christian. The first appellant said that he had left the Bible in a prominent place because he was no longer afraid to show his religion. The second appellant said that the Bible had been left at their house by some people who they had not met. 8 The second appellant said that she converted to become a Jehovah's Witness about three to four months before the Tribunal hearing after she became convinced that it was a religion of peace. However, she said that she had never been to a Kingdom Hall and had not been baptised. 9 The second appellant said that she had been receiving oral threats for about 4 years. She said that those who would harm her knew that the Australian authorities would protect her but that she would not be protected in Lebanon. The first and second appellant also described two assaults on the second appellant. One of them occurred at a shopping centre when men who "looked white" came and punched the second appellant. The other occurred when three sheikhs from the community came to the appellants' house to tell them to return to the Muslim faith. The first appellant reported the shopping centre incident to the police but not the second incident because he thought that they were related incidents (later he said that he did not report the second incident because the police had done nothing in relation to the first incident). The first appellant also described how his house and car had been vandalised. 10 On 13 July 2012, the appellants applied to the Minister for Protection Visas. A delegate of the Minister refused those visas. The appellants appealed to the Tribunal. The Tribunal's decision 11 The Tribunal hearing was held on 18 July 2013 and 28 August 2013. Only the first appellant appeared on 18 July 2013 because the second appellant had been involved in a car accident several weeks before the hearing and had to go to hospital. The Tribunal held a second hearing at which the second appellant was present. The appellants were represented by a registered migration agent and they had the assistance of an interpreter. 12 The Tribunal rejected key aspects of the first appellant's evidence. In particular: (1) the Tribunal was not satisfied there was a university lecturer who persuaded the first appellant to become a Jehovah's Witness; (2) the Tribunal found that the first appellant came to Australia to study and "subsequently made up the claim that it was in order to be able to practise this new religion"; (3) the Tribunal rejected the first appellant's evidence that his father had attacked him; (4) the Tribunal rejected the first appellant's evidence that he had stopped going to the mosque or socialising with Muslims when he arrived in Australia; (5) the Tribunal found that the first appellant had not practised as a Jehovah's Witness between 2007 and 2012; (6) the Tribunal concluded that although there had been an assault on the second appellant at the shopping centre and vandalism of their home and car, these attacks had nothing to do with the appellants' religion as Jehovah's Witnesses, and that the incident with the three sheikhs was fabricated; and (7) the Tribunal accepted that the first appellant had married his wife in a Muslim ceremony but rejected the first appellant's evidence that he chose a Muslim ceremony in order to deceive his wife about his religion as a Jehovah's Witness. 13 Ultimately, the Tribunal concluded that the first appellant started his activities as a Jehovah's Witness in order to strengthen his claims to be a refugee. Therefore, the Tribunal disregarded those activities under s 91R(3) of the Migration Act. The Tribunal found that the appellants had never been threatened by anyone in Australia or in Lebanon for reasons related to their Jehovah's Witness religion. 14 The Tribunal also considered an alternative submission by the representative of the first appellant that the appellants would be at risk of harm in Lebanon because they are (at least ostensibly) Sunni Muslims. The representative of the appellants pointed to rising sectarian tensions and targeting of religious groups including Sunni Muslims. The Tribunal rejected this submission. It is necessary to return later in these reasons to the Tribunal's reasoning on this point. 15 The Tribunal therefore rejected the claims by the first appellant that he satisfied the criteria in s 36(2)(a) of the Migration Act as a person in respect of whom Australia owes protection obligations under the Refugees Convention. The Tribunal also concluded that the first appellant was not entitled to complementary protection. The Federal Circuit Court decision 16 On 6 June 2014, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The grounds upon which the appellants sought judicial review were as follows: The decision of the [Tribunal] is made without jurisdiction and is affected by jurisdictional error Particulars a) The Tribunal had no evidence to base its conclusion that the applicant started these religious activities with the Jehovah's Witness in order to strengthen his claims of a refugee. b) The Tribunal has fallen into error by disregarding these activities pursuant to s 91R(3) of the Act. c) There is no evidence to suggest that the Applicant and his wife would not engage in Jehovah's Witness activities on their return to Lebanon. d) There is a real risk that the applicant and his wife will suffer persecution from family and in-laws in Lebanon and be accused of apostasy or conversion on their return to Lebanon. The Tribunal should have taken into account the question of apostasy in Lebanon and the likely effects on the applicant and his wife. e) The Tribunal has erred, in that it comes to the conclusion that there are not substantial grounds for believing there was a real risk the applicants would be subjected to significant harm because of their religion conversion and the fact they are former Sunni Muslims. Also, substantial grounds include the current political/religious situation in Lebanon and the manner in which apostasy/conversion is treated by the general Muslim population in Lebanon. 17 The ground of appeal and particulars essentially alleged jurisdictional errors flowing from two findings: (1) the finding by the Tribunal that the appellant started his religious activities as a Jehovah's Witness in order to strengthen his claims in order to be a refugee; and (2) Ground (e): that there were not substantial grounds for believing that there was a real risk that the appellants would be subjected to significant harm because of the religious reasons described. 18 The Federal Circuit Court considered each of the five particulars set out by the appellants separately. 19 As to the first particular, the Federal Circuit Court observed that there was evidence to support the conclusion of the Tribunal that the applicant started his religious activities with the Jehovah's Witnesses in order to strengthen his claims to be a refugee. The Tribunal pointed to the lack of participation by the first appellant in activities of Jehovah's Witnesses between 2007 and 2012 and the failure of the first appellant to provide evidence that he was baptised as a Jehovah's Witness. 20 As to the second particular, the Federal Circuit Court accurately set out the terms of the then s 91R of the Migration Act: Persecution (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 21 The Federal Circuit Court explained that the Tribunal was not in error by disregarding the activities of the first appellant which were engaged in for the purposes of strengthening the first appellant's claim to be a refugee. Rather, s 91R required the Federal Circuit Court to disregard those activities in light of its findings. 22 As to the third particular, the Federal Circuit Court explained that the evidence that supported the Tribunal's conclusion that the first appellant engaged in the activities of a Jehovah's Witness for the sole purpose of obtaining protection also permitted the inference that the first appellant and his wife would not engage in Jehovah's Witness activities on their return to Lebanon. 23 As to the fourth particular, the Federal Circuit Court observed that the Tribunal expressly considered the issues of apostasy in Lebanon. As the Tribunal said at [91]: The Tribunal finds that if the applicants were to return to Lebanon, they would not engage in any Jehovah's Witness activities as the sole purpose of their activities in Australia is to obtain protection. Consequently, the Tribunal considers that the applicants would not be accused of apostasy or conversion away from Islam. 24 As to the fifth particular, the Federal Circuit Court set out nine paragraphs of the Tribunal's reasoning. In those nine paragraphs, the Tribunal reached the following conclusions: (1) the appellants do not have a "subjective fear of persecution for reasons of their actual or imputed Sunni religion or their actual or imputed political opinion in support of Sunni dominated parties in Lebanon"; and (2) the Tribunal did not accept that the appellants face a real chance of serious harm amounting to persecution. Having assessed their claims both individually and cumulatively, the Tribunal finds that they do not have a well-founded fear of persecution at the hands of Hezbollah, Shia Muslims, Alawites, Syrian agents or anybody else for reasons of their actual or imputed Sunni religion or actual or imputed political opinion if they were to return to Lebanon now or in the reasonably foreseeable future. 25 After setting out the nine paragraphs which reached these conclusions, the Federal Circuit Court dismissed this ground. I set out below the terms in which it was dismissed and the words used by the Federal Circuit Court. The appeal to this Court 26 The appellants' grounds of appeal and particulars are, in substance, identical to those in the Federal Circuit Court. As I explained to the appellants, an appeal to this Court is not simply another hearing of the same allegations of jurisdictional error. It is necessary for the appellants to identify error in the decision of the Federal Circuit Court. Further, the jurisdiction exercised by the Federal Circuit Court, from which this appeal is brought, is limited. The Federal Circuit Court did not, and does not, have a jurisdiction to rehear the application. The effect of s 476 of the Migration Act is that the Federal Circuit Court only has the power to review for jurisdictional error: see ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 [41]-[43]. 27 In relation to the first four grounds of appeal there is no error in the reasoning of the Federal Circuit Court which I have described above. The judicial review application relied upon alleged errors in factual findings by the Tribunal. There was evidence to support each of the Tribunal's conclusions. And neither the exercise of the evaluative judgement by the Tribunal, nor the challenged factual bases upon which that judgement was exercised was irrational or unreasonable (assuming, without deciding, that a challenged factual basis on these grounds is a sufficient basis for judicial review: The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [141]-[194]). In particular, the following matters can be added to the analysis of the Federal Circuit Court. 28 First, part of the basis for the Tribunal's rejection of the appellants' evidence was the demeanour of the first and second appellants. The Tribunal described their evidence as having a "rehearsed quality". However, this point should not be overstated, particularly where other parts of the appellants' evidence were accepted and especially where some of the appellants' grounds of judicial review asserted that there was no evidence for the conclusions reached: Fox v Percy [2003] HCA 22; 214 CLR 118, 128-129 [28]-[31] (Gleeson CJ, Gummow and Kirby JJ). 29 Secondly, the Tribunal was entitled to place some weight on inconsistencies between the evidence of the first appellant and that of the second appellant and also internal inconsistencies in the evidence of the first appellant. These inconsistencies were relevant to the Tribunal's weighing of the evidence given by the first and second appellant against the inferences that might be drawn from matters such as the first appellant's failure to practise as a Jehovah's Witness between 2007 and 2012. 30 Thirdly, it was open to the Tribunal to conclude under s 91R of the Migration Act that the first appellant engaged in "the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee". 31 However, the fifth ground of appeal is more difficult. It is necessary to set that ground out in full: The [Federal Circuit Court] has erred in that it comes to the conclusion that there are not substantial grounds for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims. Also substantial grounds include the current political/religious situation in Lebanon and the manner in which apostasy/conversion is treated by the general Muslim population in Lebanon. (Emphasis added). 32 Counsel for the Minister referred to the italicised parts of this ground of appeal and accepted in the finest traditions of advocacy, by a very generous reading of their ground of appeal, that it was possible to read this ground of appeal as expressing a concern about the foundation for the Federal Circuit Court's reasons concerning whether the appellants would suffer significant harm as a result of their religious conversion. 33 I accept that this ground of appeal should be read as inviting consideration of the sufficiency of the reasons of the Federal Circuit Court on this ground before it. The proper approach when an applicant is unrepresented and has difficulty with English is to focus, as counsel for the Minister did, on the substratum of the matters raised rather than the precise terms of the grounds of appeal: SZORZ v Minister for Immigration and Citizenship [2011] FCA 593 [7] (Perram J). 34 As counsel for the Minister accepted, the ground of review (e) before the Federal Circuit Court was essentially a ground that alleged that the conclusions of the Tribunal in relation to those matters were either (i) irrational or (ii) unreasonable in either the narrow or the broad senses described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332: see ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 [34]-[36]. 35 The Federal Circuit Court was right to conclude that it was open to the Tribunal to reach the conclusions (1) and (2) set out at [24] above. As I have explained, the Tribunal considered these issues in detail and referred to relevant country information. The Tribunal concluded that the applicants did not face a real risk of persecution for those reasons and did not face a real risk of significant harm for such reasons. The Tribunal's conclusions in this regard were open on the evidence. 36 However, neither of those conclusions addresses an essential integer of the ground of review before the Federal Circuit Court: were there "substantial grounds [in the irrationality or unreasonableness sense] for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims"? Instead, the conclusions (1) and (2) at [24] above focus upon the appellants' "actual or imputed Sunni religion" rather than their claim that they would be subjected to significant harm arising from their conversion from the Sunni religion. 37 The Minister made two submissions in response to this issue. 38 The first submission by the Minister was that on a proper construction of the reasons of the Federal Circuit Court the court did not limit its consideration of this ground of review to the paragraphs of the Tribunal's reasons that it quoted. In particular, counsel for the Minister pointed to an earlier paragraph of the Tribunal's reasons ([92]), in a different section, where the Tribunal concluded that there was no more than a remote chance that (i) the first appellant's activities as a Jehovah's Witness would have been observed by Muslims from the Lebanese community in Australia, or that (ii) any of the appellants would be asked questions by their family if they were to return to Lebanon. In the same paragraph the Tribunal also concluded that if the appellants were asked then they could explain that they did not have a genuine interest in the religion but were only engaged in these activities in order to stay in Australia. 39 I do not accept that the conclusion of the Federal Circuit Court on this point took into account any paragraphs other than the nine paragraphs set out. In particular, immediately prior to setting out those paragraphs at [20], the Federal Circuit Court said that the "Tribunal did consider the current political and religious situation in Lebanon. At paragraphs 94 to 102 of its reasons for decision, the Tribunal said the following". In other words, the ground of judicial review was dismissed by reliance upon the nine paragraphs which then followed. 40 Further, after these paragraphs the Federal Circuit Court said: The Tribunal considered these issues in detail and referred to relevant country information. However, the Tribunal concluded that the applicants did not face a real risk of persecution for those reasons and did not face a real risk of significant harm for such reasons. It seems to me that the Tribunal's conclusions in this regard were open on the evidence. 41 I accept the submission by counsel for the Minister that the reference to "these issues" by the Federal Circuit Court is a reference to the issues raised in the ground of judicial review. However, the Federal Circuit Court's conclusion that the appellants "did not face a real risk of persecution for those reasons" must be a reference to the Tribunal's reasons for decision which had been described by the Federal Circuit Court at [20], immediately before the quoted paragraphs, and then quoted verbatim. 42 For these reasons the Federal Circuit Court failed to address whether there were "substantial grounds [in the irrationality or unreasonableness sense] for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims". 43 The second submission by counsel for the Minister was that the error by the Federal Circuit Court could not make any difference. 44 As to this second submission, there may be doubt concerning whether it is open for this Court to dismiss an appeal on the ground that a failure to address a significant submission "would inevitably result in the making of the same order". That would apply strictly the remarks of Mason CJ, Wilson, Brennan, Deane and Dawson JJ in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, which was itself a case concerning the exercise of a power to allow an appeal despite a failure of procedural fairness. There may be doubt concerning whether that decision would always be applied in cases involving significant denials of procedural fairness: see, for instance, Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 [108] and, by analogy, Weiss v R [2005] HCA 81; 224 CLR 300, 317 [45] (the Court). 45 In any event, I am not satisfied that if this matter had been considered by the Federal Circuit Court then the application for judicial review would inevitably have been dismissed. It would be necessary to focus closely on the reasoning in [92] of the Tribunal's reasons and other passages such as [106]. The reasonableness or rationality (in the sense I have described) of findings in those paragraphs would need to be assessed in the context of the whole of the Tribunal's reasons. Further, it would also invite consideration of other matters. For instance, was the Tribunal in [92] considering whether the truthful explanation about conversion would endanger the appellants? Would that be a sufficient ground for the application for judicial review to succeed? None of these matters was addressed in detail on this appeal. I do not suggest that counsel for the Minister should have addressed these matters on this appeal, but I point this out merely to say that I am not satisfied that the application for judicial review would inevitably have been dismissed. Conclusion 46 The appeal must be allowed on the ground that I have indicated. The matter should be sent back to the Federal Circuit Court, differently constituted, for determination in accordance with these reasons. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman. Associate: Dated: 9 February 2016