APN17 v Minister for Immigration
[2019] FCCA 1990
•23 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APN17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1990 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether reasonably open to Tribunal to find applicant was not a genuine convert to Christianity – whether Tribunal failed to consider claim – whether applicant denied procedural fairness by Tribunal failing to disclose 438 Certificate – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A), 45AA, 91R, 438 Migration Regulations 1994 (Cth), reg.2.08F |
| Cases cited: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 |
| Applicant: | APN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 431 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 20 July 2018 |
| Date of Last Submission: | 20 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams (direct access) |
| Solicitors for the First Respondents: | Mr A Markus of Australian Government Solicitors |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 431 of 2017
| APN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Iran, applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XD) visa (Protection visa).
Background
On 2 August 2013 the applicant applied for a Protection (Class XA) visa. A delegate of the Minister refused that application on 9 January 2015. A differently constituted Tribunal affirmed the delegate’s decision on 3 February 2016. The Tribunal’s decision, however, was quashed on 25 July 2016 by an order of this Court because the previously constituted Tribunal, contrary to s.45AA of the Migration Act 1958 (Cth) (Act) and reg.2.08F of the Migration Regulations 1994 (Cth), failed to treat the applicant’s application as being an application for a Protection (Class XD) visa.
Claims for protection
The applicant stated his claims for protection on a number of occasions. One is in a statement that formed part of his application for a Protection (Class XA) visa.[1] The applicant there claimed he is Iranian and a Muslim Shia. The applicant and his brother had a real estate business. They were in partnership with two other persons. One of the persons, Mr K, was a colonel in the information services of the Iranian police, and the other, Mr N, was an officer of the same information service. Mr N cheated people of their money and went to live in England. Mr N blamed Mr K for the loss of the money. Mr K thought that the applicant and his brother were collaborating with Mr N, keeping the money and assisting Mr N to escape to the United Kingdom. Mr K “vowed to catch us and send us to prison”. Mr K is a “very powerful man and he will unjustifiably influence the judicial system because of his links to the army”. Mr K also has links with government officials that make policy, and “will use his political powers to take revenge against us”.
[1] CB50-52
A second occasion on which the applicant stated his claims for protection was during his interview with the delegate.[2] He there said that in early 2012 Mr N informed the applicant that he would submit a file against Mr K to the Iranian authorities. Mr N departed Iran seven to ten days after he submitted the file. Mr K was investigated by the Ettela’at for two to three months. Mr K was then arrested and imprisoned, but he used his influence within the Iranian judicial system to secure his own release. While Mr K was in prison, the Iranian authorities closed down the real estate business. After his release, Mr K resumed his position as the head of the Ettela’at at a particular place. He took the applicant’s brother to the police station where he was questioned for four days. The applicant’s brother, who was bailed by their father, told the applicant’s father that Mr K had accused the brother of being Mr N’s accomplice, and that he was charged with being an enemy of the people, as a result of which Mr K decided to sentence the applicant’s brother to death. In early 2013 Mr K came to the applicant’s work and threatened him, bound the applicant’s hands, kicked his legs, verbally abused him, used profanities, and urinated on the applicant. Fearing arrest and execution for the charge of “enemy of the State”, the applicant fled Iran. In around July 2014 the applicant discovered that his brother had been convicted of being an “enemy of the State” and was sentenced to life imprisonment.
[2] CB113
A third occasion on which the applicant stated his claims for protection was in a statutory declaration dated 16 December 2016 he provided to the Tribunal after the applicant was invited to appear before it to give evidence and present arguments.[3] The applicant there made an additional claim. He claimed he is a Christian, and that, because he is a Christian, he feared he would be persecuted or otherwise harmed if he were to return to Iran. In his statutory declaration the applicant claimed he grew up in a strictly religious family, but, from the time he reached adulthood, the applicant started doubting the teachings of the Koran because he “always had the feeling it wasn’t true”. After he arrived in Australia and was kept in a detention centre, the applicant “was looking for what religions were out there”. He went to the library where he took and then read a Persian Bible. That was the first time he had read a Bible. When he lived in Brisbane, and before his first Tribunal hearing, the applicant tried to go to a number of churches before he went to the Liberty Baptist Church. That included “a catholic Church in Brisbane”, but he did not “like their religious practice [because] they prayed to Mary as a God which I disagreed with”. He also went to a Mormon church. None of these churches appealed to the applicant. He first attended the Liberty Baptist Church in April 2016. The applicant realised the Liberty Baptist Church “is correct and is the best way”, and he “accepted Jesus into my heart and started serving Jesus and I believed in the Christian religion in my heart”. Since he became a Christian the applicant has been attending Bible study classes every Tuesday, Thursday, and Sunday. The applicant also reads his Persian Bible privately every day. In 2015 the applicant got a tattoo which has a quote from Psalm 46.10, namely “Be still and know that I am God”. The applicant was not a Christian at the time he got the tattoo. He got the tattoo because “it sounded and looked nice to me, and because I was curious about pursuing religion and seeking answers”.
[3] CB194-198
A fourth occasion on which the applicant stated his claims was at the hearing before the Tribunal. Relevant to the matters that arise on this application is the following evidence the applicant gave to the Tribunal:
a)The applicant said he went to Brisbane and two Mormon missionaries forced him to go to their church twice, but they told him he could not have coffee or meat on Sundays. Their pastor could not show the applicant where in the Bible it said this.[4]
b)When he went to the Catholic Church the applicant thought they prayed to Mary like a god.[5] He could not find anywhere in the Bible that this is what the Bible said should be done. The applicant claimed he spoke broken English, and he asked the priest to tell him about the statues of Mary, but the priest did not show the applicant where the Bible said to do this, so the applicant did not return to the Catholic Church.[6]
c)The applicant considered himself to be a Christian two or three days after 17 April 2016 (being the day the applicant first visited the Liberty Baptist Church); and he was baptised on 31 July 2016.
[4] CB267, [32]
[5] CB267, [32]
[6] CB268, [33]
In support of his claims based on being a Christian, the applicant submitted a baptism certificate, and letters of support from three persons, including a letter from a pastor.
Tribunal’s reasons
The Tribunal did not accept the applicant was a business partner in a real estate venture with two members of the Iranian intelligence services, and that as a consequence of a falling out between those two partners the applicant would be considered to be a spy:[7] the applicant could not recall when he opened the real estate business;[8] and the applicant was inconsistent with other details concerning the business to such a degree that the Tribunal was satisfied no such business was in existence.[9] Given the Tribunal did not accept there was any business, the Tribunal also did not accept all those aspects of the applicant’s claims that relied on there being such a business.[10] Further, the Tribunal found the applicant’s claims were not plausible: the degree of interest the applicant claimed Mr K showed in him was implausible because the applicant’s claimed role in the business – being a person who did a bit of work for commission – made it unlikely that he would be a close confidant of Mr N;[11] and the degree of interest the applicant claimed Mr N showed the applicant also appeared to be out of proportion to the likely knowledge the applicant could have had about Mr K’s activities. Finally, the Tribunal found that the applicant’s conduct after the claimed events were inconsistent with his fearing harm: he held a valid passport which he could have used to travel to Armenia and seek asylum there, but the applicant took no such action.[12]
[7] CB270, [50]
[8] CB270, [51]
[9] CB279, [52]
[10] CB270, [53], [55]
[11] CB271, [55]
[12] CB271, [59]
The Tribunal also did not accept the applicant had genuinely converted to Christianity. The Tribunal relied on matters that included the following:
a)The applicant “had never previously mentioned an interest in Christianity including alleged visits to two churches in Brisbane”.[13]
b)It lacked credibility that the applicant could have attended a Catholic Mass in Brisbane and then quiz the priest why there were statues of Mary in the church when it was not mentioned in the Bible. The applicant did not speak English at that stage and his ability to understand what was going on, let alone to question the priest, would have been non-existent.[14]
c)Although he claimed to have had an interest in Christianity, the applicant made no attempt to find any Farsi-speaking churches.[15]
d)The timing of the applicant’s conversion to Christianity “is coincidental and appears linked to his protection visa claim”.[16]
e)Although the Tribunal accepted the birth certificate and letters of support had been given genuinely, the Tribunal gave them little weight because none of them “will have taken into account the inconsistencies in the applicant’s claim that the Tribunal must pay attention to”.[17] In particular, the Tribunal found that the pastor had accepted at face value the applicant’s claims of genuineness of faith which the Tribunal found to have been fabricated.[18]
f)The Tribunal accepted the applicant attended the Liberty Baptist church, that he had been baptised, and that he attended Bible classes. The Tribunal found, however, that these actions “have been done deliberately and with the sole purpose of improving his refugee claim”.[19]
[13] CB271, [59]
[14] CB271, [59]
[15] CB271, [60]
[16] CB272, [61]
[17] CB272, [62]
[18] CB272, [63]
[19] CB272, [64]
Having found the applicant is not a genuine Christian convert, the Tribunal found the applicant did not tell his relatives or friends in Iran of any conversion, and he would not seek to preach the Gospel or try to convert people; and, for these reasons, the applicant would not be imputed with a Christian religious identity on his return to Iran.[20]
[20] CB272, [68]
The Tribunal accepted the applicant has a tattoo with a dragon, cross, and biblical writing on his upper arm and shoulder. It did not accept the applicant’s evidence that at the time he got it he was unaware of its Christian significance.[21] The Tribunal found that applicant’s actions in having the tattoo drawn on him was for the purpose of establishing a basis for protection and that, because of s.91R(3) of the Act, the Tribunal is required to disregard the tattoo when determining whether the applicant has a well-founded fear of persecution.[22]
[21] CB272, [67]
[22] CB272, [68]
After considering and rejecting whether the applicant had a well-founded fear of persecution because he would be a failed asylum seeker then, on the basis of the other findings it made, the Tribunal concluded it was satisfied the applicant does not have a well-founded fear of persecution and, for that reason, the applicant did not satisfy the criterion for the grant of a protection visa provided for by s.36(2)(a) of the Act. Given the findings it made, the Tribunal was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran that he will suffer significant harm; and, for that reason, the Tribunal found that the applicant did not satisfy the complementary protection criterion provided for by s.36(2)(aa) of the Act.[23]
[23] In paragraph 74 of its reasons, the Tribunal concluded that it was satisfied “that the individual would have to adjust his behavior on return to Iran simply because he has a tattoo”. That is a typographical error to the extent the Tribunal omitted the word “not” between the words “would” and “have”.
Grounds of application
The applicant relies on the six grounds of application contained in the amended application.
Ground 1
Ground 1 is as follows:
The decision by the Tribunal was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a “genuine” Christian at [59]; [64] and [66] under the refugee criterion and at [73] under the complementary criterion, after accepting the applicant was baptized on 31 July 2016 and has attended church and bible classes at [36] and [64] of the decision record.
Under the heading “Particulars” there appear eight paragraphs subdivided under four sub-headings. Under the first sub-heading, which is titled “The protection claims”, there is recorded the applicant’s claim for protection due to a real risk of harm because of his conversion from Shia Islam to Christianity. Under the sub-heading “The findings of the Tribunal”, there is recorded the Tribunal’s acceptance that the applicant was baptised, that the applicant provided in support of his claim a baptism certificate, and letters of support, including one from the pastor, and that the applicant had attended church, and attended Bible study classes. And under the sub-headings “The refugee criterion” and “The complementary criterion”, there is recorded findings the Tribunal made in paragraphs 59, 64, 66, and 73 of its reasons for decision. In counsel for the applicant’s written submissions, the substance of the matters stated in the amended application are repeated but there is also added authorities that consider the principles relating to legal unreasonableness. If the grounds of the amended application and written submissions are considered alone, the ground appears to be that, given the matters the Tribunal accepted, it was not reasonably open to the Tribunal not to accept the applicant was a genuine convert from Shia Islam to Christianity. That is what counsel for the applicant submitted during oral submissions.[24]
[24] “HIS HONOUR: So you’re saying on the basis of those facts alone the only conclusion that a tribunal member could have reached was that he’s a Christian. That’s what your submission amounts to. MR WILLIAMS: Most definitely, your Honour.”
The difficulty with this ground, as the Minister in his written submissions submits, is that it ignores the matters on which the Tribunal relied for not accepting the applicant was a genuine convert to Christianity, even though he was baptised, he had submitted letters of support, and attended church and Bible study classes. These are the applicant’s not having previously expressed interest in Christianity; the implausibility of the applicant quizzing a priest in circumstances where he could not speak English; the timing of his purported conversion; the applicant’s not attempting to find a Farsi-speaking church; and the persons who provided letters of support accepting at face value that which the applicant said and did. Each of the matters on which the Tribunal relied afforded a rational basis for doubting the applicant’s claim that he was genuine in his apparent conversion to Christianity; and, when considered together, they afforded a rational and reasonable basis for the Tribunal not accepting that the actions on which the applicant relied for claiming he had genuinely converted to Christianity reflected any genuine intention to convert to Christianity.
Ground 1, therefore, fails.
Ground 2
Ground 2 of the amended application is as follows:
The decision by the Tribunal was affected by jurisdictional error as there was not a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant, are elements that an adherent to the religion might reasonably be expected to know.
From the particulars to this ground, it is apparent it relies on paragraphs 32 and 33 of the Tribunal’s reasons. Those paragraphs are as follows:
Asked about his conversion, he claimed that he got a bible from the library in the detention centre and found that things were different in the bible from Qur’an. He went to Brisbane and two Mormon missionaries forced him to go to their church twice but they told him he couldn’t have coffee or meat on Sundays. Their pastor couldn’t show him where in the bible it said this but he couldn’t. They had a Farsi interpreter there. This was three or four years ago. He thought this was different to the bible so he then went to a Catholic church but he thought they prayed to Mary like a god. It was put to him that lots of saints’ statues were in Catholic churches but they weren’t believed to be God. He thought they talked about Mary more than Jesus; it was put to him that the member was Catholic and Catholics don’t talk about Mary more than Jesus. He claimed that in church that in the church they mentioned Jesus but spoke more about Mary.
Asked if they had a Farsi interpreter he claimed they didn’t and then repeated that they had statues of Mary everywhere and praying to her and he couldn’t find anywhere in the bible that this was what the bible said should be done. He claimed he spoke broken English and asked the priest to tell him about statues of Mary. He went there once, but the priest didn’t show him the verse in the bible where it said to do this so he never went again. It was put to him that he didn’t speak English so wouldn’t have followed what was going on, didn’t understand the bible and yet he was not curious to ask why they were praying to a statue, rather he wanted the action proven in the bible. The Tribunal didn’t understand his logic or how he actually knew what was going on in the church. He claimed if he couldn’t be satisfied with the meaning of something he wouldn’t follow it.
The particulars also claim as follows:
Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for doing so.
In his written submissions, counsel for the applicant refers to Minister for Immigration and Citizenship v SZLSP, and in particular, to the following passage from the judgment of Kenny J:[25]
If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
[25] [2010] 187 FCR 362
The applicant’s written submissions otherwise repeat the matters stated in ground 2 of the amended application.
Ground 2 is premised on the contention that the Tribunal rejected the applicant’s claims because, or substantially because, the Tribunal found the applicant’s knowledge of the principles and practices of Christianity to be deficient. As the Minister submitted, however, that is not the basis on which the Tribunal rejected the applicant’s claims. The grounds on which the Tribunal rejected the applicant’s claim did not include his being ignorant, or his having an insufficient knowledge of Christianity. It was based on the applicant’s not having previously expressed interest in Christianity; the implausibility of the applicant quizzing a priest in circumstances where he could not speak English; the timing of his purported conversion; the applicant’s not attempting to find a Farsi-speaking church; and the persons who provided letters of support accepting at face value that which the applicant said and did.
It is true that in paragraph 32 of its reasons the Tribunal expressed doubt about the applicant’s evidence of what he observed in the Catholic Church, namely, the talking of Mary more than of Jesus, and of the praying to Mary as if she were a God. The Tribunal, however, did not direct its doubt to any ignorance by the applicant. Its doubt was directed to positive assertions the applicant made about a practice he claims to have observed in a Catholic Church. There are two things that may be said about this. First, it was open to the Tribunal member to use his experience as a Catholic to express doubt about the accuracy of the matters the applicant claimed he observed. Second, the Tribunal did not rely on what the Tribunal considered to be a mistaken claim about a practice of the Catholic Church in finding the applicant was not genuine in his purported conversion to Christianity.
It is also true that in paragraph 33 of its reasons for decision the Tribunal recorded the applicant as having stated that he could not find anything in the Bible that required statues of Mary everywhere and praying to her. But the Tribunal did not record this part of the applicant’s evidence as evidence the applicant was ignorant of Christianity; the Tribunal referred to it because it formed part of the applicant’s evidence of the circumstances in which he decided to become a member, not of the Catholic Church, but of the Liberty Baptist church.
Ground 2, therefore, fails.
Ground 3
Ground 3 of the amended application is as follows:
The decision of the Tribunal was affected by jurisdictional error as there was not a sufficient logical or evidentiary basis for the Tribunal to find at [65] of the decision record that the applicant’s conduct in Australia was “otherwise” than for the purpose of strengthening of his refugee claims. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law with regard to section 91R(3) of the Migration Act 1958 (Cth) and by disregarding this conduct in the assessment of the refugee criterion.
The particulars to this ground refers to paragraphs 39, 41, 45, 65, 66, 67, and 68 of the Tribunal’s reasons. What paragraph (b) of the particulars quotes as paragraph 41 of the Tribunal’s reasons is incorrect, and it appears to quote a passage from an unrelated decision of the Tribunal. Paragraphs 39 and 45 of the Tribunal’s reason refer to the Tribunal advising the applicant about s.91R(3) of the Act; paragraph 65 consists of the Tribunal’s confirming that, given the finding in paragraph 64 of its reasons that the applicant’s actions in being baptised, attending church, and attending Bible classes were done deliberately and with the sole purpose of improving his refugee status, s.91R(3) of the Act requires the Tribunal to disregard those actions; paragraph 66 records the Tribunal’s findings that, given the Tribunal has not accepted the applicant’s conversion to Christianity was genuine, the applicant did not tell his relatives or friends in Iran that he had converted, and he would not preach the Gospel or try to convert people if he returns to Iran; and paragraph 68 of the Tribunal’s reasons records the finding that the applicant’s actions in having the tattoo drawn on him was for the purpose of establishing a basis for protection and that, because of s.91R(3) of the Act, the Tribunal is required to disregard the tattoo when determining whether the applicant has a well-founded fear of persecution.
In his written submissions, counsel repeats the matters stated in ground 3, but quotes two passages from the judgments of the High Court in Minister for Immigration and Citizenship v SZJGV.[26] The first is the following passage from the judgment of French CJ and Bell J:[27]
The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2).
[26] [2009] HCA 40
[27] [2009] HCA 40, at [9]
The second is the following passage from the judgment of Crennan and Kiefel JJ (as Kiefel CJ then was):[28]
It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person's claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
[28] [2009] HCA 40, at [64]
Neither the particulars to ground 3, nor the applicant’s written submissions articulate why it is said the Tribunal’s finding that s.91R(3) of the Act applied lacked a sufficient evidentiary basis. In his oral submissions counsel for the applicant submitted it was a “cynical approach by” the Tribunal to disregard the applicant’s conduct. The basis of that submission appears to be the submission that there “are multiple reasons why he [the applicant] perhaps has sought out the faith”. Counsel for the applicant also submitted there was evidence that the applicant’s conversion started in Iran. Counsel for the applicant did not identify the evidence he had in mind. Perhaps counsel intended to refer to the applicant’s claim that when he reached adulthood he always started doubting the teachings of the Koran. That, however, cannot reasonably be characterised as the beginning of a conversion to Christianity. That is particularly so given that the applicant in his statement said that when he was in Iran he “knew nothing about Christianity or the Bible”.[29]
[29] CB194, [5]
Ground 3, and the particulars and submissions made in support of it, ignore the actual grounds on which the Tribunal relied for not accepting the applicant was a genuine convert to Christianity. I have already mentioned these: the applicant did not previously express interest in Christianity; the applicant’s claim that he questioned a priest in circumstances where he could not speak English was not plausible; the timing of the applicant’s purported conversion suggested he undertook the actions to assist his case for a protection visa; the applicant did not attempt to find a Farsi-speaking church; and the persons who provided letters of support accepted at face value what the applicant said and did. As I have also found, each of the matters on which the Tribunal relied afforded a rational basis for doubting the applicant’s claim that he was genuine in his apparent conversion to Christianity; and, when considered together, they afforded a rational and reasonable basis for the Tribunal not accepting that the actions on which the applicant relied for claiming he had genuinely converted to Christianity reflect any genuine intention to convert to Christianity. It was also reasonably open to the Tribunal to find that the applicant obtained the tattoo for the sole purpose of enhancing his claims for refugee status, even though the applicant had claimed that at the time he obtained the tattoo he had not converted to Christianity. It was reasonably open for the Tribunal to so find because the tattoo in terms contained a biblical passage and it was open to the Tribunal not to accept the applicant’s evidence that he was unaware of that fact at the time he obtained the tattoo.
Ground 3, therefore, also fails.
Ground 4
Ground 4 is as follows:
The Tribunal committed jurisdictional error by failing to identify and evaluate the claims of the applicant against the correct political, religious or social group, as risk of harm from Islamic extremism in Iran on the grounds of his Christian conversion. In so far as the Tribunal found that the applicant is required, or can be expected to take steps to avoid persecutory harm, the Tribunal misapplied the law, they are wrong in principle and should not be followed.
It is not necessary to identify the particulars or the written submissions in support of this ground; and that is because ground 4 is premised on the contention, which I have not accepted, that it was not open to the Tribunal to find the applicant was not genuine in his conversion to Christianity.[30] Given the Tribunal made that finding, and, as I have concluded, it was reasonably open to the Tribunal to make that finding, it was unnecessary for the Tribunal to consider what would occur to the applicant on his return to Iran on the assumption that he was a Christian. Further, the Tribunal made no finding that the applicant could or should alter his behaviour if he were to return to Iran. The Tribunal found the applicant would not, on return to Iran, preach the Gospel or seek to persuade others to convert to Christianity.
[30] “HIS HONOUR: But I suppose then it all boils down to your [at]tack on the finding that the applicant was not a Christian. If you’re wrong on that – if it was open to the tribunal to do that – would you still be saying that it made a S395 error? MR WILLIAMS: No, of course not. No.”
Counsel for the applicant accepted that the success of ground 4 depended on the applicant succeeding in his contention that it was not reasonably open to the Tribunal to find the applicant was not a genuine convert to Christianity. Counsel nevertheless submitted that the Tribunal ought to have, but failed to consider whether, on the assumption the applicant was a Christian, he would have practised his Christian faith in Iran. Counsel advanced no reason why the Tribunal ought to have considered such a hypothetical question. It is true that it would have been open to the Tribunal, had it considered it appropriate, to consider what would occur to the applicant had he returned to Iran, assuming he was a genuine convert to Christianity. Having found the applicant was not genuine in his conversion, however, the Tribunal made no jurisdictional error by failing to consider the applicant’s claims on the assumption that he was a genuine covert.
Ground 4, therefore, also fails.
Ground 5
Ground 5 is as follows:
(i)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 with regard to the complementary criterion. The correct question before the Tribunal was not whether or not the applicant’s conversion from Shia Islam to Christianity was “genuine” or “disingenuous” for the purposes of the complementary criterion. Rather, the correct question before the Tribunal was strictly whether the applicant faced a real risk of harm under the complementary criterion, given apostasy is punishable by death in Iran, irrespective of whether the applicant’s conversion from Shia Islam to Christianity was genuine or disingenuous.
(ii)Further, it was an irrelevant consideration whether the applicant’s conversion from Shia Islam to Christianity was genuine or disingenuous for the purposes of the complementary criterion, given apostasy is punishable by death in Iran per se.
(iii)As a consequence, the Tribunal erred at [73] by simply adopting the reasoning under the refugee criterion and by failing to provide adequate reasoning regarding apostasy under the complementary criterion pursuant to section 36(2)(aa) and each of the considerations regarding sufficient harm under 36(2A) of the Migration Act 1958 (Cth).
The particulars to this ground repeat paragraph 73 of the Tribunal’s reasons.
In his written submissions counsel for the applicant sets out passages from the judgments in Dranichnikov v Minister for Immigration and Multicultural Affairs,[31] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2),[32] and Htun v Minister for Immigration and Multicultural Affairs.[33]
[31] [2003] HCA 26, at [24]
[32] [2004] FCAFC 263, at [63]
[33] [2001] FCA 1802, at [42]
In his oral submissions counsel for the applicant submitted that, when considering whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act, the genuineness of the applicant’s conversion to Christianity was an irrelevant consideration. Counsel for the applicant submitted that the applicant’s undergoing the formal act of baptism necessarily turned him into an apostate, and that would be so even if he were to say that he underwent baptism to assist his claims for refugee status. Counsel submitted that the Tribunal ought to have, but failed to consider, whether on his return to Iran the applicant would face a real risk of harm because he had been baptised. Counsel accepted, however, that the Tribunal did not accept that the applicant had told anyone in Iran of his church attendances or activities in Australia, or that he would seek to practice or promote Christianity in Iran. Counsel submitted, however, it was not reasonably open to the Tribunal to so find.
The Tribunal did in effect consider whether, because the applicant had been baptised and had attended church and Bible classes in Australia, he would be imputed with a Christian identity on his return to Iran. That is evident from the findings it made; and these are that the applicant did not tell his relatives or friends in Iran that he converted to Christianity; and that the applicant would not on his return to Iran preach the Gospel, or try to convert people and, for that reason, he would not be imputed with a Christian identity on his return to Iran.[34] The Tribunal repeated the substance of its findings when considering the applicant’s claims under the complementary protection criterion. The Tribunal specifically found that it did not accept the applicant would be imputed with being a Christian or an apostate because of his church attendances, religious activities, or baptism.[35]
[34] CB272, [66]
[35] CB272, [73]
That, then, leaves the question whether it was not reasonably open to the Tribunal to so conclude; and in particular whether the Tribunal’s findings the applicant was not genuine in his conversion to Christianity was relevant to whether the applicant had told his friends or family in Iran that he had converted to Christianity, or whether it was relevant to whether the applicant would practice Christianity in Iran or seek to persuade others to convert to Christianity. As a matter of common sense, a person’s not being a genuine Christian is a rational basis for inferring that the person will not practice as a Christian; and a person’s not being a genuine Christian is also a rational basis for concluding that the person would not tell his relatives and friends that he is a Christian. It is of course possible that the applicant may have informed friends or family that he intended to be baptised, and attend church and Bible classes for the purpose of obtaining a protection visa. The applicant, however, gave no evidence that he said any such thing to any person or relative in Iran.
Ground 5, therefore, also fails.
Ground 6
Ground 6 is as follows:
The decision by the Tribunal was affected by jurisdictional error on the grounds that:
(i)The “documents” purportedly subject to the principle of public interest immunity and the claim of non-disclosure pursuant to section 438 certificate were internal working documents and did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that the certificate was invalid. For the Tribunal to proceed or act on an invalid certificate was not a process according to law and of itself constituted jurisdiction error;
(ii)If the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was a denial of procedural fairness and accordingly, jurisdictional error is established.
(iii)The non-disclosure of the relevant documents gave rise to a practical injustice, giving rise to a reviewable error.
As a consequence, the non-disclosure of information under section 438(1)(a) of the Migration Act 1958 (Cth) was not in accordance with the principle of “substantial justice” pursuant to section 420 of the Migration Act 1958 (Cth), which impaired the ability of the applicant to present evidence and arguments pursuant to section 424AA or 425 of the Migration Act 1958 (Cth) and ultimately, resulted in the failure by the Tribunal to review the decision pursuant to section 414 of the Migration Act 1958 (Cth) and/or resulted in a constructive failure by the Tribunal to exercise jurisdiction and accord procedural fairness.
This ground is directed to the issuing of a certificate dated 9 January 2015 purportedly pursuant to s.438 of the Act (438 Certificate).[36] The 438 Certificate states it applied to information in relation to a document that comprised two folio numbers, and that the disclosure of that document would be contrary to the public interest because the information recorded on the document relates to an internal working document. The Minister does not claim any privilege over the document, and the document is in evidence before me.[37]
[36] CB136
[37] It is exhibited to an affidavit of Dominic Eberl 20.07.2017
The particulars to ground 6 describe the document covered by the 438 Certificate. It is said the document is titled “GM IMA Protection Support – Identity Integrity Checklist”, and records information in relation to whether the applicant has any offspring, the applicant’s movements, and other matters. After claiming that the applicant was not provided with the 438 Certificate, the particulars reproduce paragraphs 16 and 17 of the previous Tribunal’s decision which refers to the applicant’s not having provided documentary evidence of his identity, nationality, or citizenship.[38] Finally, in paragraph (c) of the particulars appearing under the heading “Jurisdictional error”, the particulars claim that the documents covered by the 438 Certificate “gave rise to practical injustice and reviewable error”. The practical injustice is said to consist in the Tribunal’s not disclosing to the applicant the document covered by the 438 Certificate.
[38] CB164
In his written submissions counsel for the applicant referred to the Full Federal Court’s judgment in BEG15 v Minister for Immigration and Border Protection,[39] and reproduced paragraphs 30 and 33 from that judgment where the Full Federal Court said that there was nothing to support the view that it was always a jurisdictional error for the Tribunal to act on an invalid certificate purportedly issued under s.438 of the Act, and where the Court quoted a passage from another judgment to the effect that it was not correct to say that material contained in a certificate purportedly issued under s.438 of the Act can never be relevant in the course of a judicial review proceeding.
[39] [2017] FCAFC 198
In his oral submissions, counsel for the applicant submitted that the document covered by the 438 Certificate implied the person completing it had regard to other information that is not disclosed in the document. In the words of counsel, the applicant did not have the benefit of knowing what the other documents were saying “behind the scenes”.[40]
[40] T41.30
The Minister, while accepting the 438 Certificate is invalid, and was not disclosed to the applicant, submitted that the document covered by that certificate was irrelevant to any issue before the Tribunal; and that is so because the document relates to the identity of the applicant and there was no issue before the Tribunal that the applicant was the person he claimed to be. In those circumstances, the Minister submits, the Tribunal’s failure to disclose the 438 Certificate did not deprive the applicant the possibility of a successful outcome and, for that reason, the applicant did not suffer any practical injustice.
This ground must now be assessed by the High Court’s judgments in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA).[41] That case concerned three appeals from orders of the Full Federal Court, each of which concerned certificates that were purportedly issued pursuant to s.438 of the Act (438 certificate).[42] There are two reasons for judgment in SZMTA, one given by Bell, Gageler, and Keane JJ (plurality judgment), and the other given by Nettle and Gordon JJ (non-plurality judgment).
[41] [2019] HCA 3
[42] I repeat here what I said in Karsten v Minister for Immigration & Anor [2019] FCCA 1560, at [67]-[80]
All justices were of the opinion that the issue to the Tribunal of a 438 certificate or purported 438 certificate obliged the Tribunal to disclose to the applicant the 438 certificate.[43] There is, however, a difference between the plurality judgment and the non-plurality judgment about the consequences of the Tribunal’s failing to disclose to the applicant the issue of a 438 certificate. According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[44] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[45] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[46]
[43] [2019] HCA 3, [28], [115]
[44] [2019] HCA 3, [4]
[45] [2019] HCA 3, [45]
[46] [2019] HCA 3, [4]
According to the non-plurality judgment, a breach by the Tribunal of an obligation to disclose a 438 certificate gives rise to a jurisdictional error.[47] Unlike the plurality judgment, however, whether or not the breach is material is not relevant to whether the Tribunal made a jurisdictional error. In other words, materiality of an error is not a criterion of jurisdictional error.[48] Materiality, however, may be relevant to whether the Court should refuse relief.[49]
[47] [2019] HCA 3, [117]
[48] [2019] HCA 3, [92]
[49] [2019] HCA 3, [121], [123], [128]
The document covered by the 438 Certificate could not reasonably be taken to be relevant to any issue that was before the Tribunal. The document related only to the identity of the applicant, but that was not an issue before the Tribunal. That the document may have been based on other documents is incapable of supporting an inference that those documents may have contained information relevant to any issue that was before the Tribunal. The inference that is reasonably available to be drawn is that to the extent the document covered by the 438 Certificate relied or referred to other documents, those documents would have been relevant only to the matters with which the document covered by the 438 Certificate was concerned. Given that document could not reasonably be considered to be relevant to any issue before the Tribunal it follows that any documents on which it relied or to which it referred was also irrelevant.
In these circumstances, the applicant has been unable to establish that the Tribunal’s disclosing the 438 Certificate could realistically have resulted in a different decision; and I am satisfied that had the Tribunal disclosed the 438 Certificate it could not have made any difference to the outcome of the applicant’s application for review.
Ground 6 of the amended application also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs when I pronounce my order dismissing the application.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the refers to reasons for judgment of Judge Manousaridis
Associate:
Date: 23 July 2019
6
3