AMF15 v Minister for Immigration and Anor (No.2)
[2016] FCCA 2743
•21 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMF15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 2743 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant relevantly claiming a fear of harm in Iran as a Christian convert – applicant not believed – whether the Tribunal applied a test of religious faith inconsistently with s.116 of the Constitution or customary international law considered – whether the Tribunal otherwise erred in testing the veracity of the applicant’s claims considered – no jurisdictional error. |
| Legislation: Commonwealth of Australia Constitution, s.116 Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Cases cited: ABX15 v Minister for Immigration [2016] FCA 855 Kruger v Commonwealth (1997) 190 CLR 1 Minister for Immigration v SZLSP (2010) 187 FCR 362 Minister for Immigration v SZOCT (2010) 119 ALD 90 Plaintiff 178A/2016 v Minister for Immigration [2016] HCA Trans 219 Wang v Minister for Immigration (2000) 105 FCR 548 |
| Applicant: | AMF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1048 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Russell C Byrnes, Solicitor |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application as amended on 12 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1048 of 2015
| AMF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is one of a series of cases in which applicants have raised issues relating to s.116 of the Commonwealth of Australia Constitution (Constitution) concerning the testing of religious faith. The legal representation in each of these cases has been the same and the arguments raised are essentially the same. The arguments have been rejected in this Court, on appeal in the Federal Court and in the original jurisdiction of the High Court. The arguments are raised again in this case but, in light of the entirely unfavourable authority arising from previous cases, the issues are only raised so as to protect the applicant’s rights on appeal. Different arguments are also raised based upon more traditional administrative law grounds.
On 14 May 2015, a Judge of this Court made orders dismissing the application with costs under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). Those orders were subsequently set aside by the Full Court of the Federal Court of Australia on 20 May 2016[1], and the application was remitted to this Court to be heard and determined according to law.
[1] AMF15 v Minister for Immigration [2016] FCAFC 68
Following remittal, the applicant was given leave to file and serve an amended application, further evidence, and s.78B notices, by 29 August 2016.
On 29 September 2016, an amended application was filed on behalf of the applicant, who by that stage was legally represented. On the same day, the applicant was granted leave “to file and serve a corrected amended application limited to the grounds set out in the amended application filed on 29 September 2016”. A further version of the amended application was filed on 12 October 2016 (the amended application).
The following statement of background facts is to be found in the decision of the Full Federal Court as follows[2]:
[2] At [3]-[7]
3The applicant is an Iranian citizen who arrived in Australia on 12 August 2012. His application for a protection visa was rejected by the Minister’s delegate on 12 December 2013. On 23 December 2013, the applicant sought a review of that decision in the Tribunal. In brief, the applicant’s claims were as follows:
(a)He and his family had had problems with the Iranian government because a cousin of the applicant’s father had worked for the Iranian intelligence service during the time of the Shah and the cousin was hanged by the government.
(b)The applicant had been attacked by the Basij in 2009 when he was caught up in a demonstration in Tehran and had spent about ten days in hospital as a result.
(c)In February 2011 he and his brother opened a coffee shop in Tehran. He formed a relationship with a woman called Ms X who visited the coffee shop. Their relationship became intimate. He thought that Ms X was divorced and had no children but when he dropped her off near her home in July 2011 he was chased by her husband, whom he believed to be a high ranking officer in Sepah. The husband apparently took down the details of the applicant’s car registration number. He said that Ms X’s husband threatened to kill him and also his family members and Ms X told him that her husband was looking for him. He said that although he changed his mobile telephone number in August 2011 he was subsequently assaulted by Ms X’s husband, who also threatened to kill him. He said that he believed that Ms X’s husband was also responsible for members of the Amaken and Basij coming to the coffee shop to intimidate and harass him because he had had an affair with Ms X. He said that he and his brother closed the coffee shop in October 2011, and they began to sell alcohol around then. The applicant said that the alcohol was purchased by his brother and he (i.e. the applicant) was the co-ordinator of the business. He said that two friends worked with them in taking and delivering orders for alcohol. He said that the two friends were arrested in April 2012 and that the Sepah and Basij came to his family house and asked for him and his brother but they managed to escape through the roof. He said he hid at his sister’s home for about a week. He claimed that he was told that one of the friends who had been arrested had informed the authorities that he worked for the applicant and his brother. At this time he and his brother decided to leave Iran. He further claimed that his family had informed him that two summonses had been issued for him and his brother in August 2012, whereby he was required to attend Court on 4 September 2012. He claimed that he feared that he would be arrested, detained and killed by the Iranian authorities because he had an affair with the wife of a Sepah officer and had sold alcohol.
4Shortly before the applicant’s hearing in the [former Refugee Review] Tribunal on 24 February 2015, in a written submission his migration agent claimed for the first time that the applicant had converted to Christianity in Australia. The applicant gave evidence of his religious activities at the Liberty Baptist Church at North Rocks in Sydney and claimed to have been baptised on 7 December 2014. He provided testimonials from a Pastor Piper from that Church which were to the effect that the applicant appeared to be a very sincere, genuine and serious Christian. Pastor Piper also gave evidence at the Tribunal hearing and confirmed that he believed that the applicant was a serious and dedicated Christian. The applicant’s migration agent provided the Tribunal with a considerable amount of country information relating to Iran, including information on the Basij.
5The Tribunal rejected the applicant’s claims, basically because of its adverse findings concerning the applicant’s credibility. The Tribunal found that the applicant’s claim that he had been assaulted by the Basij in 2009 or 2010 was fabricated. With respect to the applicant’s claims concerning the affair he said he had had with Ms X, the Tribunal noted that at the Tribunal hearing the applicant had stated that he and Ms X “did not have an intimate relationship”. This, together with country information relied upon by the Tribunal concerning male and female fraternisation, formed the basis for the Tribunal’s conclusion that the applicant’s evidence concerning his relationship with Ms X and his interactions with her husband were “implausible, inconsistent and unconvincing”. Part of the inconsistency was said to relate to the applicant having claimed on various occasions that he and Ms X had had an intimate relationship, whereas during the hearing the Tribunal recorded that he had stated that they did not have an intimate relationship. As to the applicant’s claims regarding the sale of alcohol, the Tribunal noted various inconsistencies in his evidence relating to the details of the alcohol-selling business and also expressed concerns relating to the authenticity of the summonses for him to appear in Court. The Tribunal found that the applicant was not a witness of truth and had fabricated his claims in relation to the sale of alcohol.
6As to the applicant’s claims regarding his conversion to Christianity, the Tribunal found that the applicant was not a credible witness. It accepted that he had attended Church and Bible study classes in Australia and was baptised on 7 December 2014, but it did not accept that he was a genuine convert to Christianity. It concluded that the applicant’s claims regarding his conversion to Christianity were for the purpose of strengthening his claims to be a refugee and, therefore, had to be disregarded having regard to s 91R(3) of the Migration Act 1958 (Cth) … .
7The Tribunal also explained why it rejected other claims by the applicant, including his claim that he would be persecuted as a failed asylum seeker from a western country if he were returned to Iran.
The present application
The amended application identifies nine grounds of review. Grounds 1 and 2 allege a breach of s.116 of the Constitution and Ground 3 a violation of the principles of customary international law. These grounds have been previously considered and rejected by the Federal Court of Australia, and more recently, by the High Court.
The balance of the grounds variously assert a misapplication of the law and/or failure to ask the correct question; an insufficient logical or evidentiary basis for the decision, for various findings of fact and for the application of s.91R(3)[3] of the Migration Act 1958 (Cth) (Migration Act); a lack of training, expertise or experience to make a finding that the applicant was not a genuine Christian; and a failure by the Tribunal to have regard to relevant considerations, and having regard to irrelevant considerations.
[3] as it stood at the time of the Tribunal decision
The grounds of review are:
Ground 1: The Imposition of Religious Observance in Violation of Limb Two of Section116 of the Constitution
1. The second respondent violated the second limb of section 116 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution) by imposing religious observance on the applicant.
Particulars
a) At [64], when asked if he could describe the Bible, he stated that there is a story in the Bible about being kind to each other. He recited the story.
b) At [64], when asked the difference between the Old Testament and the New Testament, he responded that he is a beginner and does not know how to explain it.
c) At [65] of the decision record, the second respondent asked:
i. Who Lazaras or Thomas were?
ii. Where Jesus was born?
iii. What was the first miracle performed by Jesus?
iv. Whether the applicant knew of any of the miracles?
a) At [66], the second respondent asked:
i. Why the applicant considered himself to be a Christian?
ii. What the applicant believes in?
iii. Why Christianity is important to the applicant?
b) At [71], the second respondent asked:
i. Pastor Piper to give an assessment of the applicant as a Christian?
ii. Whether Pastor Piper had considered whether the applicant may have some other motive for bringing his friends to the Church?
c) At [75], the second respondent expressed:
i. ‘concerns in relation to the applicant’s motivation for going to Church’ and observed that
ii. ‘[d]espite his claim that he became interested in Christianity in 2013, the applicant did nothing about it until he started attending the Liberty Baptist Church at North Rocks on 30 November 2014 and was baptized a week later on 7 December 2014’ and
iii. ‘did not know the difference between the Old Testament and the New Testament.’
d) At [76], the second respondent ‘raised its concerns in relation to his poor knowledge of the Bible with the applicant’ and was of the ‘view that if the applicant was not only prepared to denounce Islam, his religion and the religion of his family, but also embrace a new religion he should at least be able to demonstrate the basis on which he did so’ and asked him whether he considered himself to be a Christian and why Christianity was important to him’ and was not ‘convinced of his religious convictions.’
e) At [78], the second respondent accepted that, ‘whilst in Australia, the applicant has attended Church and Bible study classes and was baptized on 7 December 2014.’ However, the second respondent erred by not accepting ‘that the applicant is a genuine convert to Christianity’ or that ‘he has a commitment to practice Christianity, attend Church, pray or proselytize if he returns to Iran now or in the reasonably foreseeable future.’ The second respondent erred by not accepting that the applicant is not of ‘adverse interest to the Iranian authorities because of his religious beliefs.’
f) At [79], the second respondent was ‘not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and his baptism are otherwise than for the purpose of strengthening his claims to be a refugee.’ Therefore, the second respondent erred by disregarding this conduct in its assessment of his well-founded fear of persecution under s.91R(3) of the Act.
f) At [104], the second respondent ‘accepted that the applicant has attended Church and Bible study classes and was baptized on 7 December 2014.’ However, the second respondent erred by not accepting that the ‘applicant is a genuine convert to Christianity. The Tribunal did not accept that he has a commitment to practice Christianity, attend Church or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal did not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.’
g) At [105], the second respondent ‘was not satisfied that his attendance at Church and Bible study classes and his baptism were otherwise than for the purpose of strengthening his claims to be a refugee and therefore disregarded this conduct, pursuant to s.91R(3) of the Act, in its assessment of his well-founded fear of persecution.’ The second respondent was ‘mindful that s.91R(3) does not apply with respect to conduct in the context of complementary protection’ and having considered his conduct in Australia, the second respondent did not ‘accept that it has brought, or is likely to bring, him to the adverse attention of the Iranian authorities.’ Therefore, the second respondent was ‘not satisfied that there is a real risk that he will suffer significant harm for reason of his attendance at Church and classes and baptism in Australia if he returns to Iran now or in the reasonably foreseeable future.’
Ground 2: The Prohibition of the Applicant’s Free Exercise of Religion in Violation of Limb Three of Section 116 of the Constitution
2. The second respondent violated the third limb of section 116 of the Constitution by prohibiting the applicant’s free exercise of religion.
Particulars
a) For the reasons articulated at ground one.
Ground 3: The Violation of the Free Exercise of Thought, Conscience, Religion or Belief in Violation of the Principles of Customary International Law
3. The second respondent violated the applicant’s right to the free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia. Alternatively, it was not reasonably necessary nor proportionate to violate the applicant’s right to the free exercise of thought, conscience, religion or belief, in order to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
Particulars
a) For the reasons articulated at grounds 1 and 3.
Ground 4: Misapplication of law or failure to ask the correct question
4. The Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the applicant’s conversion from Shia Islam to Christianity. The correct question before the Tribunal was not whether or not the conversion from Shia Islam to Christianity of the applicant was “genuine”. Rather, the correct question before the Tribunal was strictly whether as a result of the applicant’s conversion from Shia Islam to Christianity per se, was there a real risk of persecution or harm to the applicant under either the refugee criterion or the complementary criterion.
Particulars
a) At [78], the second respondent accepted that, ‘whilst in Australia, the applicant has attended Church and Bible study classes and was baptized on 7 December 2014.’
g) At [79], the second respondent was ‘not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and his baptism are otherwise than for the purpose of strengthening his claims to be a refugee.’ Therefore, the second respondent erred by disregarding this conduct in its assessment of his well-founded fear of persecution under s.91R(3) of the Act.
h) At [104], with regard to the refugee criterion, the second respondent erred by not accepting that the ‘applicant is a genuine convert to Christianity. The Tribunal did not accept that he has a commitment to practice Christianity, attend Church or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal did not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.’
i) At [105], with regard to the complementary criterion, the second respondent ‘not satisfied that there is a real risk that he will suffer significant harm for reason of his attendance at Church and classes and baptism in Australia if he returns to Iran now or in the reasonably foreseeable future.’
Ground 5: Insufficient logical or evidentiary basis for the Tribunal’s decision
5. There was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a ‘genuine’ Christian at [79], [104] and [105] after accepting the applicant was baptized, attended bible classes and church at [78] of the decision record.
Particulars
Conversion to Christianity from Shia Islam
a) At [78], the second respondent accepted that, ‘whilst in Australia, the applicant has attended Church and Bible study classes and was baptized on 7 December 2014.’
b) At [79], the second respondent was ‘not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and his baptism are otherwise than for the purpose of strengthening his claims to be a refugee.’ Therefore, the second respondent erred by disregarding this conduct in its assessment of his well-founded fear of persecution under s.91R(3) of the Act.
c) At [104], with regard to the refugee criterion, the second respondent erred by not accepting that the ‘applicant is a genuine convert to Christianity. The Tribunal did not accept that he has a commitment to practice Christianity, attend Church or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal did not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.’
d) At [105], with regard to the complementary criterion, the second respondent ‘not satisfied that there is a real risk that he will suffer significant harm for reason of his attendance at Church and classes and baptism in Australia if he returns to Iran now or in the reasonably foreseeable future.’
Ground 6: Insufficient disclosed rational basis for concluding that the elements the applicant might reasonably know regarding Christianity
6. There was not a sufficiently disclosed rational basis for concluding that the elements of which the appellants were ignorant were elements that an adherent to the religion might reasonably be expected to know.
Particulars
a) For the reasons particularised at ground one.
Ground 7: No Training, Expertise or Experience to make the finding the applicant was not a genuine Christian
7. The Tribunal approached the issue on the basis that the applicant had to satisfy the Tribunal that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.
Particulars
a) For the reasons particularised at ground one.
Ground 8: Insufficient logical or evidentiary basis for the Tribunal to apply section 91R(3) of the Act
8. There was an insufficient logical or evidentiary basis for the Tribunal to find the applicant’s religious practises in Australia were for the sole purpose of his refugee claims, when applying section 91R(3) of the Migration Act 1958 (Cth).[4] Alternatively, the application of section 91R(3) by the Tribunal was not reasonably appropriate and adapted to serve a legitimate end.
Particulars
a) At [79], the second respondent was ‘not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and his baptism are otherwise than for the purpose of strengthening his claims to be a refugee.’ Therefore, the second respondent erred by disregarding this conduct in its assessment of his well-founded fear of persecution under s.91R(3) of the Act.
[4] Minister for Immigration and Citizenship v SZJGV and Another (2009) 238 CLR 642; [2009] HCA 40) per French CJ and Bell J at [9]; Crennan and Kiefel JJ (French CJ and Bell J agreeing) at [27].
Ground 9: Relevant/Irrelevant Considerations
9. The Tribunal erred by taking into account an irrelevant consideration as to whether the applicant was a “genuine” Christian and failed to take into account of a relevant consideration, that apostasy is punishable under Shariah law irrespective of whether the conversion is genuine or disingenuous.
Particulars
a) At [78], the second respondent accepted that, ‘whilst in Australia, the applicant has attended Church and Bible study classes and was baptized on 7 December 2014.’
b) At [79], the second respondent was ‘not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and his baptism are otherwise than for the purpose of strengthening his claims to be a refugee.’ Therefore, the second respondent erred by disregarding this conduct in its assessment of his well-founded fear of persecution under s.91R(3) of the Act.
c) At [104], with regard to the refugee criterion, the second respondent erred by not accepting that the ‘applicant is a genuine convert to Christianity. The Tribunal did not accept that he has a commitment to practice Christianity, attend Church or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal did not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.’
d) At [105], with regard to the complementary criterion, the second respondent ‘not satisfied that there is a real risk that he will suffer significant harm for reason of his attendance at Church and classes and baptism in Australia if he returns to Iran now or in the reasonably foreseeable future.’
The only evidence I have before me is the court book filed on 12 May 2016.
Both the applicant and the Minister prepared pre-hearing written submissions and also made oral submissions at the trial on 25 October 2016.
Consideration
The first three grounds in the amended application cannot succeed. They were pressed by the applicant only to preserve the applicant’s rights of appeal.
Notwithstanding this, the greater part of the applicant’s written submissions were directed to the first three grounds. These issues were considered by me recently in SZWAR v Minister for Immigration & Anor[5], in particular at [17]-[19] where I said:
As held in ABX15 v Minister for Immigration[6], the argument sought to be put concerning s.116 of the Constitution is without substance. In Kruger v Commonwealth[7], five members of the High Court held that s.116 of the Constitution, in using the preposition “for”, only forbids the Commonwealth from passing laws whose purpose or object is the free exercise of religion[8]. As such, the question is “whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved”[9]. The constitutional test laid down in Kruger directs attention not to the effect of the statutory provision, but to its purpose or object.
As held in ABX15[10], s.91R(3) does not fall within s.116. Further, s.116 does not necessarily embrace the manner in which a law is administered, and s.91R(3) cannot be seen as a law which authorises administrative conduct contrary to s.116[11]. The Tribunal was entitled to test the applicant’s claim to be a Christian[12]. The Court is bound to follow ABX15 and SZUDI[13]. I had previously deferred to 12 September 2016 an adjournment request pending the outcome of proceedings raising similar arguments in the High Court[14].
Finally, there was no denial by the Tribunal of any right under Australian law to free exercise of thought, religion, conscience or belief, howsoever expressed. The Tribunal did not accept the applicant’s claim that he had genuinely converted to Christianity or that he would seek to promote or practise Christianity in Iran[15]. In those circumstances no issue of free exercise of religion or other belief can arise[16].
[5] [2016] FCCA 2382
[6] [2016] FCA 855 (Flick J) at [8]
[7] (1997) 190 CLR 1
[8] Brennan CJ at 40, Toohey J at 86, Gaudron J at 132-133, Gummow J at 160 (Dawson J agreeing at 60-61). See also Attorney-General (Vic) (Ex rel Black) v Commonwealth (1981) 146 CLR 559
[9] Gummow J in Kruger at 160
[10] at [19]-[20]
[11] ABX15 at [21]-[22]
[12] ABX15 at [23]-[26]. See similarly SZUDI v Minister for Immigration [2015] FCA 530 (Siopis J) at [20]-[25], referred to in ABX15 at [28]
[13] The applicant’s argument is also inconsistent with the recent judgment of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (note that this decision is the subject of an application for special leave to appeal to the High Court)
[14] ABX15 at [29]
[15] CB 157 [55]
[16] see similarly AMC15 v Minister for Immigration [2016] FCCA 1458 (Judge Smith) at [15]-[19] and cases there cited
The lack of merit in these arguments was recently reinforced by the High Court of Australia in Plaintiff 178A/2016 v Minister for Immigration[17]. There, Gageler J said at lines 637-685 of the transcript:
Section 116 of the Constitution, insofar as the argument of counsel for the plaintiffs seeks to rely on it, prohibits the Commonwealth from making any law “for imposing any religious observance, or for prohibiting the free exercise of any religion”. Doubtless, the prohibition extends to a Commonwealth law which would authorise a Commonwealth officer or Tribunal to impose a religious observance or to prohibit the free exercise of a religion.
But that is not even arguably what has occurred here. The Parliament of the Commonwealth has made no law which has the purpose or the effect either of imposing any religious observance or prohibiting the free exercise of any religion. What the Parliament has done in the domestic implementation of the Refugees Convention by a number of provisions of the Migration Act is to establish, as a criterion for a protection visa, that the applicant for the protection visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. By these provisions, Parliament has then imposed, first on the Minister or the Minister’s delegate and then on the Tribunal, the duty in a review of finding the facts and deciding whether or not to be satisfied that the criterion for a protection visa is met.
One of the grounds on which a person might claim to be a refugee is a well-founded fear of persecution on account of that person’s religion. That does not have the result that section 116 of the Constitution disentitles the Minister, the delegate or the Tribunal from examining the genuineness of that person’s claimed religious belief.
In the present case, counsel for the plaintiffs points to a number of questions examined in the lengthy reasons for decision of the Tribunal. They are particularised in ground 1 of the application for an order to show cause. I cannot regard those questions, their asking, their examination or their consideration by the Tribunal as amounting individually or cumulatively to the imposition by the Tribunal of a religious test or to the prohibition by the Tribunal of the free exercise by the plaintiffs of their religion.
All that the Tribunal did here was to discharge the statutory duty imposed on it by the Act to review the delegate’s decision. The Tribunal had a fact-finding function and was required, in the discharge of that fact-finding function, to test the claim which the plaintiffs had themselves made. The genuineness of the beliefs that they professed was a question relevantly within its statutory remit and not denied to it by the operation of section 116 of the Constitution. It is impossible to characterise the Tribunal’s actions as anything other than engaging in a review on the merits of the delegate’s decision. It is impossible to characterise the Tribunal’s actions as imposing any religious observance, as prohibiting the exercise of religion or as violating any right to free exercise of thought, conscience, religion or belief.
As to the customary international law claim, counsel for the plaintiffs has not demonstrated how the mere testing of a factual assertion to fear persecution on a Convention ground can violate the customary international law norm to which he points. Nor has he presented an arguable case as to how that international law norm might condition the exercise by the Tribunal of its statutory function.
[17] [2016] HCA Trans 219
Counsel for the applicant before me directed a great deal of effort to attempting to persuade me why Gageler J in Plaintiff S178A/2016 was wrong. Those efforts were misplaced as I am obviously bound by superior court authority on these issues even if I had contrary views (which I do not). I was told by counsel for the applicant that leave to appeal against the decision of Gageler J is being sought. That is not a matter which should be a concern for this Court in the light of the authorities. The applicant sought before me an adjournment of the trial of this matter pending the outcome of the application for leave in the High Court but I refused an adjournment on the basis this Court is bound by superior court authority and the applicant could preserve his rights on appeal in this case.
The administrative law grounds
The remaining grounds in the application as amended are more conventional. I agree with the Minister’s submissions in relation to those grounds, with the partial exception of Grounds 5, 6 and 8.
Ground 4 – misapplication of law or failure to ask the correct question
Ground 4 asserts that the Tribunal erred in considering whether the applicant was a “genuine” convert to Christianity, and that the correct question was whether, as a result of the applicant’s conversion, “there was a real risk of persecution or harm to the applicant under the refugee or complementary criterion”.
This ground conflates what are different issues for consideration under s.36(2)(a) and (aa) of the Migration Act, and is based on an incomplete reading of the Tribunal’s decision. The Tribunal dealt first with the applicant’s claims of Convention related persecution[18]. In this context the Tribunal considered, as it was entitled to do in carrying out its statutory functions, whether the applicant was or was not a genuine convert to Christianity. This was a relevant issue for a number of reasons, including the possible application of s.91R(3) of the Migration Act, and simply because it informed the Tribunal’s views as to the activities the applicant may engage in if he were to return to Iran.
[18] see [62]-[80]
The Tribunal also considered, however, the applicant’s claims for complementary protection[19]. In this context, the Tribunal did rely in part on its earlier findings, including on the issue whether the applicant was a genuine convert and therefore whether he would or would not practise Christianity if returned to Iran, however, the Tribunal also made an additional finding to the effect that the Iranian authorities would not become aware of the applicant’s Christian-related activities in Australia. There is no error in the Tribunal’s approach.
Ground 7 – no training, expertise or experience to make the finding that the applicant was not a genuine Christian
[19] see [104]-[105]
The essence of this ground is that the Tribunal assumed the role of an arbiter of doctrine by approaching the issue of the genuineness of the applicant’s conversion on the basis that the applicant had to satisfy it that “he was possessed of sufficient doctrinal knowledge to justify being regarded as a Christian”.
It is well established that the Tribunal may fall into jurisdictional error by testing an applicant's knowledge, if it applies a predetermined standard that all adherents must achieve[20].
[20] see Minister for Immigration v SZLSP (2010) 187 FCR 362
Further, there must be a foundation for any conclusion that the applicant does not possess adequate knowledge, and there must be proper foundation for any conclusion that any identified inadequacy or defects in the applicant's knowledge mean that they are not adherents to the religion[21].
[21] see Minister for Immigration v SZOCT (2010) 119 ALD 90 (SZOCT) at [50]
Finally, the Tribunal's reliance on other factors besides its evaluation of the applicant's religious knowledge will typically be a strong indicator that it has conducted a legitimate exploration rather than relying on a preconceived minimum standard of knowledge[22].
[22] see Minister for Immigration v SZLSP (2010) 187 FCR 362
The relevant principles enunciated by the Full Federal Court were summarised by Bromberg J in SZLSP v Minister for Immigration[23]. At [26] his Honour cited passages from the judgment of Kenny J in Minister for Immigration v SZLSP at [37]-[40], including as follows.
I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge … . [emphasis added]
[23] [2012] FCA 451
The Minister submits and I accept that, in the present case, the language used by the Tribunal does not support a conclusion that the Tribunal’s exploration of the applicant’s familiarity with or knowledge of the Bible and basic tenets of Christianity amounts to “operating from the premise that all believers will have certain specific knowledge”, and the finding ultimately made by the Tribunal was made in the particular context explained at [76] of the Tribunal’s decision, referred to below. In light of what is stated there by the Tribunal, it is clear that it did not operate “from the premise that all believers will have certain specific knowledge”.
In the present case the applicant’s inability to articulate his reasons for embracing Christianity, coupled with his lack of familiarity with the Bible and his general lack of credibility, provide not only an adequate, but ample and lawful foundation for the finding that the applicant is not a genuine convert to Christianity.
To the extent that the applicant also seeks to assert under this ground that members of the Tribunal are not ordained priests, have no training and are not properly equipped to assess people’s faith or beliefs, it must be borne in mind that what the Tribunal assesses is an applicant’s credibility, and the credibility of his or her claims. Tribunal members are trained to, and well equipped to carry out this task, which is an essential part of their statutory function.
To the extent that the applicant relies on what Grey J has said in this respect in Wang v Minister for Immigration[24] at [16], subsequent authorities make it plain that it is not impermissible for the Tribunal to test an applicant’s claims to be an adherent to a particular faith[25].
[24] (2000) 105 FCR 548
[25] see discussion by Buchanan J in SZOCT at [40]-[50]
Ground 9 – relevant/irrelevant considerations
I agree with the Minister that this ground does not add to the issues raised by Ground 4. That ground fails and this ground fails for the same reasons.
Grounds 5, 6 and 8 – insufficient logical or evidentiary basis for the Tribunal’s decision
These grounds are arguable. The arguability of these grounds was the principal reason I gave the applicant leave to amend the application to raise the administrative law grounds. The grounds are related.
Ground 5 asserts that there was an insufficient logical or evidentiary basis for the Tribunal’s decision, Ground 6 asserts that there was insufficient rational basis regarding the “elements the applicant might reasonably know regarding Christianity”, and Ground 8 that there was insufficient logical or evidentiary basis for the Tribunal to apply s.91R(3) (as it then was) of the Migration Act.
The Tribunal accepted[26] that the applicant has been attending Church and Bible study classes for a short period of time only, and could not be expected to have a thorough knowledge of the Bible in the circumstances. However, it was of the view that, if the applicant was not only prepared to denounce Islam, his religion and the religion of his family, but also to embrace a new religion, he should at least be able to articulate the basis on which he did so. He was not able to do so to the Tribunal’s satisfaction.
[26] at [76]
The Tribunal had before it evidence that the applicant had converted to Christianity and that he considers himself to be a Christian. Indeed, it appears that he is one of a significant number of Farsi speaking Iranians who attend a particular Baptist church in Sydney. The applicant gave evidence that he attends Bible studies and he recited to the Tribunal a story from the Bible[27]. The Tribunal asked the applicant who Lazarus was and the applicant did not know. Neither did he know who Thomas was. His knowledge of the miracles performed by Jesus was very limited. Nevertheless, a pastor from the Baptist church gave evidence in support of the applicant to the effect that he appears to be a very sincere, genuine and serious Christian. At [73][28] the Tribunal found that the evidence given by the pastor did not overcome “other credibility concerns” that the Tribunal had in relation to the applicant and the Tribunal placed “little weight” on his evidence. At [75][29] the Tribunal expressed concern that that applicant was baptised only a week after he had started attending the Baptist church and shortly before his hearing before the Tribunal. The Tribunal was concerned that this raised questions about the applicant’s motivation for attending church in Australia. The Tribunal was concerned that the applicant did not know the difference between the Old Testament and the New Testament.
[27] Tribunal decision at [64], CB 310
[28] CB 311
[29] CB 311
At [76] the Tribunal stated[30]:
When the Tribunal raised its concerns in relation to his poor knowledge of the Bible with the applicant, he responded that he is a new believer and does not have that kind of knowledge. The Tribunal accepts that the applicant has been attending Church and Bible study classes for a short period of time and could not be expected to have a thorough knowledge of the Bible in the circumstances. However, the Tribunal is of the view that if the applicant was not only prepared to denounce Islam, his religion and the religion of his family, but also embrace a new religion he should at least be able to demonstrate the basis on which he did so. When the Tribunal asked him whether he considered himself to be a Christian and why Christianity was important to him, he spoke about feeling peaceful and calm. His answers did not convince the Tribunal of his religious convictions.
[30] CB 312
The Tribunal went on to find at [78][31]:
Having considered the above claims and all the evidence, the Tribunal finds that the applicant is not a credible witness. The Tribunal accepts that, whilst in Australia, the applicant has attended Church and Bible study classes and was baptized on 7 December 2014. The Tribunal does not accept that the applicant is a genuine convert to Christianity. It follows that the Tribunal does not accept that he has a commitment to practice Christianity, attend Church, pray or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal does not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.
[31] CB 312
It might be thought that the Tribunal was too jaundiced in its approach to the applicant’s claim of conversion. It might be thought that the Tribunal was too quick to dismiss the evidence of the pastor and too quick to find fault with the applicant’s knowledge of Christianity. Nevertheless, the Tribunal’s decision rests on more than a Bible quiz and the rejection of the evidence of the pastor. The timing of the applicant’s conversion was such as to raise concern. The applicant’s inability to articulate why he had converted to Christianity with any coherence was clearly a matter of concern to the Tribunal. These factors provided a sufficient evidentiary basis for the Tribunal’s decision. Further, I am not persuaded that the Tribunal set itself up as the arbiter of religious knowledge. The Tribunal did not set down some minimum standard which the applicant had to meet in terms of his religious knowledge. The Tribunal placed more weight on the applicant’s inability to explain what his new religion meant to him and the timing of his conversion than on his Bible knowledge.
The Tribunal’s finding at [79][32] that the applicant’s attendance at church and at classes to learn about Christianity and his baptism were not “otherwise than for the purpose of strengthening his claims to be a refugee” might be seen as problematic. The Tribunal found that it was required under s.91R(3) to disregard that conduct in its assessment of the applicant’s well-founded fear of persecution.
[32] CB 312
Section 91R(3) was at the time of the Tribunal decision in the following terms:
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
In my opinion, the Tribunal’s finding that the applicant’s attendance at church and Bible studies and his baptism were not “otherwise than for the purpose of strengthening his claims to be a refugee” was spartan but adequate for the purpose of the section. The Tribunal was only required to disregard the applicant’s conduct if it was satisfied that the conduct was engaged in for the sole reason of enhancing the applicant’s claims for protection. There may have been multiple reasons for the applicant’s conduct and these might have included the opportunity to socialise with the several hundred Iranians who attended the church and its activities. The Tribunal’s decision was ungenerous in this regard but I cannot say that there was a lack of evidence to support the finding. Neither can I say that the finding was not open to the Tribunal on the material before it.
It follows that Grounds 5, 6 and 8 fail.
Conclusion
The applicant is unable to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 November 2016
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