ATS17 v Minister for Immigration
[2020] FCCA 1926
•15 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1926 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal failed to comply with ss.424A or 425 of the Migration Act 1958. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293 SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; [2010] FCA 297 |
| Applicant: | ATS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 536 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 17 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chia (direct access) |
| Counsel for the Respondents: | Ms Hooper |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 536 of 2017
| ATS17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 January 2017 setting aside a decision to refuse to grant the Applicant a Protection (Class XA) visa and substituting a decision to refuse to grant him a Protection (Class XD) visa.
The Applicant, a citizen of Iran, arrived in Australia in April 2013. In his entry interview he claimed he left Iran because he wished to convert to Christianity. He stated that there was no other reason he left Iran.
In August 2013 the Applicant lodged an application for a protection visa. In support of his application he claimed to fear harm due to his Christian beliefs and an imputed political opinion stemming from the arrest and detention of one of his brothers in 2009.
He claimed that one of his brothers was regarded as a supporter of the 2009 protests in relation to the Iranian presidential elections, because his shop was in the square in which the protests started. This brother was arrested and detained for four months. After his brother later failed to report to the Basij paramilitary force, the authorities came looking for him. The Applicant claimed that thereafter he and the family were targeted by the Basij, that they monitored them and required the Applicant and his other brother to report to them weekly.
The Applicant claimed that after a confrontation with his sister in March 2013 the authorities had arrested, detained, interrogated and mistreated his family. He claimed that he was detained for four days and released under the protection of their mother because she was respected as a martyr’s sister. He was required to report weekly to the authorities, who had beaten and insulted him.
In his statutory declaration of 29 July 2013 the Applicant also claimed that after his release from detention (in March 2013) he had been disillusioned with Islam. He claimed that he had not been following Islam strictly and had often “looked at” a nearby Armenian Christian Church with interest. He claimed that he had discussed Christianity with Christian students he coached in boxing, that the authorities had questioned him about his involvement with Christianity and that he later learnt that two of the students had been arrested and interrogated regarding their involvement with him. He claimed to fear that if he returned to Iran he would be detained, tortured and killed as a person who was anti-Islam and interested in Christianity.
The Applicant attended a departmental interview on 25 September 2014. The Department conducted a fresh interview on 4 December 2014 at the Applicant’s request. At that interview the Applicant claimed that he had converted from Shia Islam to Christianity in Australia and had been baptised in November 2013 after he joined the Liberty Baptist Church. He provided supporting information, in particular a letter dated 4 December 2014 from Pastor Keith Piper of the Liberty Baptist Church, North Rocks, which stated that the Applicant had first attended the church in about October 2013 and was baptised on 3 November 2013. According to Pastor Piper, the Applicant had attended some Bible study classes and a weekly Farsi church service, although he had not attended for some months prior to the December 2014 interview. The Applicant and Pastor Piper attributed this to back surgery he had in October 2014.
On 17 December 2014 the Applicant’s agent provided a submission to the Department addressing his imputed political opinion claim. The agent also claimed that the Applicant feared harm as an ethnic Persian who had renounced the Islamic faith and embraced Christianity, but did not elaborate on this aspect of the claims.
The delegate’s decision
On 22 December 2014 a delegate of the First Respondent refused the protection visa application. In reasons for decision, the delegate noted that Pastor Piper had attended the Applicant’s December 2014 interview and had stated that he considered the Applicant’s conversion to Christianity to be genuine. The pastor observed that the Applicant had brought two friends to the church. According to the delegate, the pastor explained at the interview that at the church “they go through the (mistakes in the Quran) to make sure they get out of Islam”.
The delegate was of the view that the Applicant did not impress as a credible witness, that his account had several inconsistencies, omissions and “confusions” in relation to the timeline and substance of events and that his evidence was vague, “lacking the subtly of genuine, personal experience” and in some respects not corroborated by country information. In light of significant concerns regarding the Applicant’s account of his motivation for conversion, along with “the lack of personal significance he demonstrated regarding the meaning that Christianity offers him in his life”, the delegate could not be satisfied that the Applicant had genuinely adopted the Christian faith.
The delegate was not satisfied that the Applicant had experienced problems with the authorities in Iran, such as being monitored, detained or forced to report, that he started to explore Christianity in Iran and came to the attention of the authorities because of this, that he was a genuinely committed Christian, or that he had discussed his practice of Christianity with his parents in Iran. Having regard to the timing of his church attendance and other concerns, the delegate found that the Applicant’s attendance and involvement in Bible studies had been deliberate, strategic and purposeful and was not satisfied that his current practice of Christianity was genuine.
The Tribunal review
The Applicant sought review of the delegate’s decision by the Tribunal. He provided the Tribunal with a written statement of 6 July 2016 which addressed concerns of the delegate, including in relation to his oral evidence, events in Iran, his interest and motivation for conversion and practice of Christianity. The Applicant also provided documentation in relation to his boxing activities, consequential medical issues and a further supporting letter from Pastor Piper dated 5 July 2016 which addressed the Applicant’s involvement in church activities and stated that he was a committed member of the church who had rejected Islam and embraced “Biblical Christianity”.
The Applicant’s agent provided a written submission (which was signed by the Applicant). It addressed country information regarding low profile protestors, Christians and new converts in Iran and the nature of the Applicant’s conversion. The submission claimed that the Iranian authorities were “now sure” that the Applicant was a Christian as he had mentioned this on Facebook.
The Applicant attended Tribunal hearings on 7 July 2016 and 17 August 2016. The transcripts of these hearings are in evidence as annexures to the affidavit of Lecia Marie Stark affirmed on 14 May 2019. Pastor Piper gave oral evidence in the Applicant’s presence at the hearing of 7 July 2016.
The Tribunal decision
In its reasons for decision the Tribunal found that while the Applicant had applied for a Protection (Class XA) visa, by operation of s.45AA of the Migration Act 1958 (Cth) (the Act) and reg.2.08F of the Migration Regulations 1994 (Cth), the application was taken to be a valid application for a Temporary Protection (Class XD) visa and not for a Class XA visa.
The Tribunal recognised that the effect of these legislative provisions was that the application it must consider was an application for a Temporary Protection (Class XD) visa. The Tribunal decided to set aside the decision to refuse to grant the Applicant a Protection (Class XA) visa and to substitute a decision to refuse to grant the Applicant a Protection (Class XD) visa. No issue is taken with this aspect of the Tribunal’s decision (which was the subject of the second Tribunal hearing).
The Tribunal described the documents the Applicant had submitted, his written and oral evidence, the evidence of Pastor Piper and the various submissions.
The Tribunal observed that while the Applicant had given evidence that his father had always lived in Tehran and the family were Shia Muslims, he had never made any protection claims relating to his Kurdish ethnicity. The Tribunal had regard to the situation for Kurds in Iran, but found that the Applicant did not face any harm in Iran for reasons of his ethnicity.
In considering whether the Applicant was detained and harassed in Iran due to imputed anti-government opinions, the Tribunal had regard to the vagueness, omissions, inconsistencies and exaggerations in his account of past events. The Tribunal accepted that it was possible that the Applicant’s brother was imputed with an anti-government opinion in 2009 and was subject to ongoing reporting requirements for a period of time after his release in 2009. However it did not accept that his brother’s reporting requirements would have continued until 2013, given that he had no involvement in any political group and there was no plausible reason why he would continue to be monitored by the authorities for this length of time. The Tribunal also had regard to country information indicating that low level protesters were unlikely to have faced continued monitoring and harassment.
The Tribunal was of the view that the Applicant had overstated how his brother and family were treated after the 2009 protests. While it accepted that the authorities went to the Applicant’s house at some stage thereafter (much earlier than 2013) and that there was initially a confrontation with the Applicant’s sister in which the family had become involved, that they were taken to the local police station/Basij office and detained for a short period and then taken before a court, it did not accept that the Applicant had been detained for four days, beaten or subjected to tear gas as he claimed. Having regard to the Applicant’s confused and vague evidence, the Tribunal did not accept that he or his family members were required to report regularly or that he was harassed or monitored by the authorities after he was arrested and detained.
As the Tribunal did not accept that the Applicant was required to report to the authorities at any time, it did not accept that he had been in breach of any reporting requirements. It also did not accept that the Applicant would face harassment, arrest or mistreatment for reason of his brother’s previous problems with the authorities or because of the incident in which he and other family members were arrested and detained for a short period. The Tribunal was of the view that the evidence indicated that the matter had been resolved when the Applicant and his family members were released upon the intervention of his mother and that no further action was taken against him. The Tribunal did not accept that the Applicant would face serious harm if he returned to Iran, now or in the reasonably foreseeable future, for reasons of an imputed anti-government political opinion.
The Tribunal also considered the Applicant’s claim to fear harm as a convert to and/or practitioner of Christianity. It described the various claims in this respect in the Applicant’s entry interview, statutory declaration of 29 July 2013 and in his oral evidence to the delegate, including in relation to his claimed interest in Christianity in Iran and his involvement with the Liberty Baptist Church. It recorded his claims to the delegate that he was baptised about one week after he met with Pastor Piper and that he thereafter attended church regularly (except after his October 2014 back surgery). It referred to the record of church attendance and evidence Pastor Piper gave to the delegate. It also outlined the various submissions to the delegate and to it.
The Tribunal set out in some detail the oral evidence of the Applicant and Pastor Piper at the Tribunal hearing. It noted that when asked when he had started going to church in Australia, the Applicant had claimed that he started attending the Liberty Baptist Church on 6 October 2013 having been introduced by a friend who came to Australia at the same time. He told the Tribunal that he had introduced 30 other people to the church through his boxing contacts and use of Facebook.
The Tribunal observed that the Applicant had failed to recall what he had studied at a Bible class two days before the hearing until he looked through his notes for at least ten minutes. It also recorded his evidence about what happened in the most recent church service.
The Tribunal described the oral evidence of Pastor Piper as follows:
80. … the Tribunal interposed Pastor Piper who indicated he had another commitment and had to leave. Pastor Piper stated that the applicant had adopted a Christian name of [name] which was an indication of his commitment to Christianity. He claimed he was a diligent Bible student who attended Bible study classes regularly. He also attended church on Sunday and sometimes in the afternoon. The applicant has also invited people to attend church and he believes that he will continue coming to church in the future. The applicant sits with his friends and writes notes and the translator tells him what Pastor Piper says.
81. He stated that the applicant had a back injury for a number of months which caused him great pain. He keeps in touch with friends on Facebook and has introduced them to the church. He believes he is a solid member of the church.
82. Pastor Piper described the Liberty Baptist Church as an independent Baptist Church in the Calvinist tradition which had a good relationship with the mainstream Baptist Union. He stated that the church rented their North Rocks premises for church services and classes and relied on individual donations for its income and maintenance.
83. Pastor Piper first came into contact with the applicant after he started attending in October 2013. He was baptised shortly after in November 2013. When it was put to Pastor Piper that baptism took place very soon after the applicant’s first contact with the church he stated this did not conflict with biblical doctrine. After giving evidence Pastor Piper then left the hearing.
The Tribunal also summarised the Applicant’s evidence about the development of his interest in Christianity in Iran. It found that he had been vague and unable to provide any plausible detail in response to questions about how he became aware of the claimed arrests and the detention of the students. The Tribunal recorded that it had put information to the Applicant that people attending churches in Iran could generally go about their business as long as they did not publically criticise Shia Islam.
The Tribunal continued:
88. The Tribunal asked the applicant what made him take this quite critical and significant step to convert to Christianity. He stated he found out things and understood that Christianity invited people to peace not to killing and confiscation. He then then started to list and compare certain aspects of Christianity to Islam in a similar fashion to one of the tracts produced by Pastor Piper on comparisons between Christianity and Islam.
89. The Tribunal asked him to explain his motivations and reasons for changing his religion given he had been born into a strict Shia family. He stated he had no right to choose his religion and in comparing Christianity to Islam he could not express a preference.
90. The Tribunal found that the applicant was unable to explain his motivation for the conversion and kept returning to Pastor Piper’s comparisons of Islam and Christianity. It appeared he could not discuss his reasons or move beyond a particular script. When this was put to him he stated he had informal discussions with boxing students, did his own research and decided he liked Christianity; he claimed he saw something in Christianity.
91. The Tribunal invited the applicant to comment on or respond to information which would be the reason or part of the reason for affirming the decision under review. The information was that in the entry interview the applicant had not mentioned he had been detained or mistreated in detention and stated he had not converted when he left Iran. He also stated he was planning to convert to Christianity. This suggested that he had no genuine fear of persecution in Iran and that he had a deliberate plan to convert purely to strengthen his claims to apply for protection in Australia.
(error in original)
The Tribunal did not accept that the Applicant had formed a genuine intention to convert to Christianity in Iran. It observed that at the time of his protection visa application (July 2013) he had made no claim to have joined a Christian church in Australia. He told the delegate that (as attested to by Paster Piper) he had joined the Liberty Baptist Church in October 2013 and had been baptised shortly after. However the Tribunal was of the view that the Applicant “was not able to adequately explain what caused him to form the intention to convert”. While the Tribunal accepted that the Applicant was a devout Muslim and may have become disillusioned with Islam, it did not accept that the corollary was that he formed an intention to convert to Christianity.
The Tribunal had regard to the fact that the Applicant’s claim that he became interested in Christianity as a result of discussions with his Christian boxing students was not supported by any detailed evidence as to the nature of the discussions and that his claim in this respect had always been generic and vague in its terms. While the Tribunal accepted that religious faith was personal and that reasons for conversion could not always be particularised, it was of the view that the Applicant’s description of his discussions and “the reason he formed his intention” to convert lacked credibility.
The Tribunal was of the view that the fact that the Applicant had made no mention in his oral evidence of the claim he had made in his statutory declaration (that he was questioned by the Iranian authorities about his discussions about Christianity) was a significant omission. It also observed that if the Applicant had been questioned by the authorities about his interest in Christianity, it would have expected him to mention this in his entry interview. The Tribunal found his evidence about the claim that his Christian students were arrested was vague, lacking in detail, equivocal and speculative.
The Tribunal did not accept that the Applicant became interested in Christianity in Iran or that he had discussions about Christianity with his boxing students. Nor did it accept that Iranian security authorities became aware of these discussions and questioned the Applicant or arrested and detained his boxing students. It did not accept that the Applicant was monitored or harassed by the authorities for this reason. It considered that the Applicant had “contrived this evidence to explain and strengthen his claims of Christian conversion in Australia”.
The Tribunal considered the nature of the Applicant’s religious practice in Australia. In particular, it stated at paragraphs 163 to 165 of its reasons:
163. The Liberty Baptist Church was founded by Pastor Keith Piper in North Rocks, Sydney. Pastor Piper conducts Sunday services and a range of other religious activities. He is the author of the STOP Tract (in over 30 languages); and Life of Christ in Pictures.11 Pastor Keith Piper has a particular interest in Muslims converting to Christianity, having given an address on ‘how to help Muslims to become Christians’ to the Successful Australian Christian Nation Association Annual Conference in 2009 run by the Christian Democratic Party (The Fred Nile Group) due to his success in ‘helping a number of Muslims in Sydney to become Christians’.12 The website of the Liberty Baptist Church also provides some resources aimed at Muslims or which Christians can give to Muslims, titled ‘4 Questions for Muslims’, ‘Compare Jehovah with Allah (in Farsi text)’, ‘7 Bible Truths Disproving Islam’, and ‘What is wrong with the Quran?’.13
[1]1 Liberty Baptist Church n.d., Meet Our Pastor < align="left">12 The Christian Democratic Party (The Fred Nile Group) 2009, Successful Australian Christian Nation Association Annual Conference, 25 November <htto:// Liberty Baptist Church n.d., Muslims The Tribunal accepts the evidence that the applicant has attended the Liberty Baptist Church from October 2013 to the date of the hearing. He did not attend church for about 7 months from about August 2014 and claimed this was due to a medical condition and recovery from surgery. The Tribunal considers that the applicant had little knowledge or understanding of Christianity at the time he was baptised. Pastor Piper gave evidence that such knowledge or understanding is not required before baptism in the Liberty Baptist Church and the Tribunal accepts that Pastor Piper is willing to baptise persons notwithstanding that they have little knowledge or experience of the church’s beliefs or practices. It also considers he does not scrutinise the motivation of attendees of the Liberty Baptist church and accepts them at face value. The Tribunal does not make this finding as a criticism of Pastor Piper’s approach but considers it weakens any weight to be assigned to his evidence.
165. Notwithstanding the applicant’s attendance at Farsi language services and classes the Tribunal found the applicant’s evidence as to his motivation for conversion and Christian beliefs to be unsatisfactory. Despite claiming to attend Bible study classes regularly he could not satisfactorily explain the topic of the most recent Bible class. His discussion of his Christian beliefs revolved around a comparison of Islam and Christianity. The Tribunal considers this reflects the intense focus that Pastor Piper appears to have on comparing the Koran and the Bible as well as Christianity and Islam in the materials he produces (tracts) and in evidence he has given to the Tribunal.
The Tribunal also had regard (in paragraph 166 of its reasons) to the fact that at the hearing the Applicant had continually referred to his handwritten notes before answering questions about his knowledge and Christian activities and “kept returning to comparisons of Islam and Christianity”. The Tribunal accepted that the Applicant may have been anxious about answering questions on his Christian knowledge given the delegate’s finding that his knowledge was rudimentary, but was of the view that he “did not appear to be able to speak with any conviction or religious commitment”.
In paragraph 167 of its reasons the Tribunal expressed the view that the Applicant’s knowledge of Christianity and his commitment to religion was “fairly superficial”. It observed that the knowledge the Applicant had displayed in the interview with the delegate in December 2014 (as described in the delegate’s decision) was “limited” and that at the Tribunal hearing he had continually referred to his notes, “but did not appear to have a personal engagement with his claimed faith”. It found that his evidence “appeared to be formulaic”.
The Tribunal found that the Applicant’s evidence as to how he first became interested in Christianity and how he found the Liberty Baptist Church in Sydney indicated that he had “decided to embark on a course of action to convert to Christianity to support his claims for protection and for no other reason”. It considered that the Applicant’s decision to be baptised about one week after joining the church suggested that:
… he had already decided to go through a conversion to Christianity before he had any real opportunity to understand the nature of the religious beliefs of the church he was attending or to reflect on the consequences on his conversion.
The Tribunal did not accept the Applicant’s evidence that the decision to convert was “not momentous or critical” because he had rejected Islam. It was of the view that in circumstances where his family members were said to be devout Muslims in a country where conversion was severely discouraged, the decision to convert from Islam to Christianity would, if it had been genuine, have been a very significant decision with serious ramifications for the Applicant, at least in terms of his family relationships. The Tribunal observed, however, that if the decision to convert was not a genuine expression of religious faith, it would only be a means to an end in the Applicant’s mind, as he could easily abandon his position once he obtained a permanent migration outcome.
The Tribunal concluded that the Applicant’s decision to attend and join the Liberty Baptist Church was “motivated by an intention to seek a permanent migration outcome in Australia”. It found that since his arrival in Australia the Applicant had “followed a considered strategy to take steps to join a Christian group, to go through a conversion process and to make claims of Christian conversion to support his application for protection”.
As the Tribunal did not accept that the Applicant was a genuine Christian convert, it did not accept that if he returned to Iran he would seek to practise as a Christian, join a Christian church or proselytise in Iran.
Nonetheless, the Tribunal considered whether the Applicant would face harm for reason of his attendance at the Liberty Baptist Church or for any publication of his conversion to Christianity to others in the community. It noted that he claimed that he had posted Christian messages on his Facebook page, although he had not provided evidence to the Department or to the Tribunal as to the content of the claimed Facebook posts. It accepted, however, that his activities may have become known in the local Iranian community, as his representative had submitted.
The Tribunal referred to s.91R(3) of the Act. It noted that the issue of whether the Applicant had engaged in conduct in Australia otherwise than for the purpose of strengthening his claim had been raised in the delegate’s decision.
In all the circumstances, the Tribunal did not accept that the Applicant’s attendance at the Liberty Baptist Church and his conversion were genuine or that he had engaged in this conduct otherwise than for the purpose of strengthening his refugee claims. Accordingly, it found that under s.91R(3) of the Act it must disregard such conduct in determining whether the Applicant had a well-founded fear of persecution. The Tribunal did not accept that the Applicant was a genuine Christian.
The Tribunal found, on the evidence before it, that the Applicant was a young man who had achieved some success in boxing competitions in Iran and Australia and that this activity gave him the greatest satisfaction and provided a strong motive for him to continue to remain in Australia to consolidate his boxing career. The Tribunal considered that the motivation of the Applicant for departing Iran was to seek better economic and occupational opportunities and not to convert to Christianity.
The Tribunal also considered other aspects of the Applicant’s claims, in particular whether he had left Iran illegally, how he would be treated on return and whether he would face a real chance of harm as a failed asylum seeker or would be imputed with an adverse political opinion for seeking asylum in Australia or spending time in Australia. These aspects of the decision are not in issue in these proceedings.
The Tribunal concluded that it was not satisfied that there was a real chance that the Applicant would face serious harm if he were to return to Iran for reason of his Kurdish ethnicity, actual or imputed political opinion, actual or imputed religion and/or membership of a particular social group of “failed asylum seekers” or returnees from the west or young men of Kurdish ethnicity. It was not satisfied that he had a well-founded fear of Convention related persecution for any of the reasons claimed.
In considering the complementary protection criterion, the Tribunal referred to its earlier findings in relation to the Applicant’s claimed fear of the Iranian authorities. It reiterated that it did not consider that he would face any continued harassment, arrest or detention for the reasons claimed if he was removed to Iran.
Nor did the Tribunal accept that the Applicant had a “genuine interest or commitment to the practice of Christianity”. It did not accept that he would join a church, attend Christian activities or proselytise if removed to Iran. Accordingly it found that he would not face a risk of suffering significant harm for these reasons if he was removed to Iran.
The Tribunal referred to the fact that it had accepted that the Applicant had attended the Liberty Baptist Church for certain periods, that he underwent a Christian conversion in November 2013 and that some people in the Iranian community in Australia were aware of his activities. It again noted that he had not provided evidence to support his claimed postings on his Facebook page showing his interest in Christianity. The Tribunal acknowledged that there was some information that the Iranian authorities monitored the online activities of citizens and critics of the Iranian regime. However it found that there was no information before it indicating that there was any widespread monitoring of an individual’s religious activities or beliefs in western countries.
The Tribunal stated that it had considered country information on the treatment of persons in Iran who had converted from Islam to Christianity. It noted that there were varying reports about the treatment of converts. However it found that the focus of the reports was on the treatment of genuine practising Christian converts in Iran and that there was no evidence suggesting that persons who had attended church in western countries had faced harm on their return for that reason alone, if they were not genuine converts. It also found that the country information suggested that religious observance was not generally monitored by Iranian authorities and that perceived apostates would only come to the attention of the authorities through public manifestations of their new faith, attempts at proselytising, attendance at a house church or through informants. As the Tribunal found that the Applicant would not engage in these activities because he was not a genuine convert, it did not accept that he would be at risk of significant harm if he was removed to Iran. The Tribunal was not satisfied that the Applicant met the complementary protection criterion on any other basis.
Accordingly, the Tribunal set aside the decision to refuse to grant the Applicant a Class XA visa and substituted a decision to refuse to grant him a Class XD visa.
These Proceedings
The Applicant sought judicial review by application filed on 22 February 2017. He filed an amended application on 24 April 2019.
In pre-hearing written submissions, the Applicant stated that he proposed to seek leave to rely on a further amended application which contained two grounds of review, the first of which was the same as the ground of review in the amended application. However in oral submissions, counsel for the Applicant indicated that the proposed second ground in the proposed further amended application would not be pressed and that the Applicant would rely only on ground one as pleaded in the amended application. In these circumstances there was no need for leave to rely on the proposed further amended application.
The ground of review
The only ground of review now relied on by the Applicant is as follows:
1. The second respondent (Tribunal) failed to comply with section 424A or section 425 of the Act in relation to evidence from Pastor Piper.
Particulars
The Tribunal failed to invite the applicant to respond to:
a. the oral evidence of Pastor Piper; and
b. “the materials he produces”,
which the Tribunal relied upon at [165] in finding the applicant’s evidence to be “unsatisfactory”.
At the hearing the Applicant sought to tender material which was said to be that referred to in the footnotes to paragraph 163 of the Tribunal decision set out at [32] above. There was an issue about the completeness of the photocopies tendered. In addition, the First Respondent maintained that it was not clear that, as reproduced, the tendered material reflected the material that was in fact before the Tribunal. The First Respondent conceded that these concerns could be addressed by affidavit evidence explaining the source and annexing complete copies of the material in question. The parties agreed that the tendered material could be addressed in oral submissions on this basis and that if any further issue arose after affidavit evidence was filed, the parties could exercise liberty to apply. In these circumstances, I gave the Applicant leave to file and serve further affidavit evidence and gave the parties liberty to apply.
The Applicant filed, and relies on, an affidavit sworn by him on 30 October 2019 which annexed printouts of documents located online, including those referred to in footnotes 11 to 13 to the Tribunal decision, and an affidavit sworn by Keith Piper on 30 October 2019 which confirmed that annexures to his affidavit were true copies of printouts from the web page of the Liberty Baptist Church as it appeared from 2012 to mid to late 2017. Neither party sought to exercise liberty to apply.
Section 424A of the Act
While there is only one ground of review, it raises two issues. It is convenient to consider first the contention that the Tribunal failed to comply with s.424A of the Act.
The Applicant submitted that the Tribunal erred in failing to put to him under s.424A of the Act “the oral evidence of Pastor Piper” and the “materials he produces”, which the Tribunal was said to have “relied upon at [165] in finding the applicant’s evidence to be “unsatisfactory”” (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J and at [208] per Hayne J).
It was submitted that in making the finding at paragraph 165 of its reasons (set out at [32] above) that the Applicant’s evidence as to his motivation for conversion and Christian beliefs was unsatisfactory, the Tribunal had relied on Pastor Piper’s oral evidence as well as the materials it had independently accessed through the internet as described in footnotes 11 to 13 to paragraph 163 of its reasons. This material was said to constitute information that, objectively, and in the Tribunal’s consideration, would be “part of the reason” for affirming the decision under review within s.424A(1) of the Act. It was suggested that the particularised information contained in its terms “a rejection, denial or undermining” of the Applicant’s evidence to the Tribunal and therefore of his protection claim, based on his conversion to Christianity, in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17] (and see SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405).
Counsel for the Applicant explained this contention on the basis that the Tribunal had reasoned that the Applicant was not genuine in his evidence, that it just reflected the evidence of Pastor Piper, and that there was something about Pastor Piper’s “intense focus” which could be seen as unbalanced or incomplete in terms of an understanding of Christianity. It was submitted that by relying on Pastor Piper’s evidence and the materials he produced, the Tribunal had “discounted” the Applicant’s evidence as to his understanding of, and commitment to, Christianity. Hence, Pastor Piper’s evidence and the materials he produced were said to “undermine” the Applicant’s claims to have converted to Christianity (see SAAP) and thus to constitute information that the Tribunal considered would be part of the reason for affirming the decision under review. While not clearly particularised in the ground of review, it was also submitted that the letters of support from Pastor Piper also undermined the Applicant’s claims.
In the alternative, it was submitted that even if the Tribunal was merely saying that the Applicant was not genuine in his evidence and was just repeating what he had been told by Pastor Piper, this information was nonetheless within s.424A(1) as part of the reason for affirming the decision under review.
The Applicant contended that Pastor Piper’s oral evidence and the materials he produced amounted to evidence of a witness which suggested that the Applicant’s evidence was not genuine and could be compared with the letter of support which was found to be information within s.424A(1) of the Act in SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; [2010] FCA 297.
Counsel for the Applicant submitted generally that it was not necessary for the court to consider the content of the letters of support, the material referred to in footnotes 11 to 13 of the Tribunal decision, or exactly what Pastor Piper said in his evidence at the Tribunal hearing. It was contended that the Tribunal’s reference to what occurred at the hearing, to the information cited in paragraph 163 and its reasoning in paragraphs 164 to 165 amounted to evidence that the Tribunal was of the view that the particularised information was information that it considered would be part of the reason for affirming the decision under review.
The Applicant suggested that in order to comply with s.424A(1) of the Act, the Tribunal should have put to him that there was evidence before it from Pastor Piper, that the Tribunal considered that Pastor Piper had an “intense focus” on comparing Christianity and Islam and that this was reflected in the Applicant’s evidence.
The Applicant submitted that in so far as the High Court had suggested in SZBYR at [17] that the operation of s.424A(1)(a) of the Act was to be determined “in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case”, this reflected the fact that in that case, as Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had stated at [17], “if their content were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review”. It appeared to be submitted that this was not such a case.
The Applicant also submitted that none of the “information” in question fell within any of the exceptions in s.424A(3) of the Act.
First, it was submitted that the written material produced by Pastor Piper and sourced from the internet was not information that the Applicant had provided to the Department or to the Tribunal for the purposes of the review within ss.424A(3)(b) or 424A(3)(ba) of the Act. It was also submitted that this material was not within the s.424A(3)(a) exception because it was evidence that was specifically about Pastor Piper and what he had said. In the alternative, counsel for the Applicant submitted that this written material was outside the s.424A(3)(a) exception as about the Applicant because the Tribunal “saw [it] as saying something about the doctrine that the applicant had accepted and was reflecting in his evidence”.
The Applicant also submitted that, consistent with the approach taken by Rares J in SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498; [2009] FCA 209, Pastor Piper’s oral evidence was not information given by him to the Department or for the purposes of the review within ss.424A(3)(b) or 424A(3)(ba) of the Act. Pastor Piper’s written and oral evidence about the Applicant’s attendance at the church and commitment to Christianity was also said to be specifically about the Applicant and thus outside the s.424A(3)(a) exception.
The First Respondent submitted that it was not a fair reading of the Tribunal’s reasons to state that the last sentence of paragraph 165 was “central” to the Tribunal’s rejection of the Applicant’s claimed conversion to Christianity in the manner contended for by the Applicant. Rather, paragraph 165 of the Tribunal’s reasons was said to be part of the Tribunal’s evaluation of the Applicant’s evidence about his motivation for converting to Christianity which was to be read in the context of the reasons as a whole, in particular having regard to the Tribunal’s further findings at paragraphs 166 and 167.
The First Respondent also submitted that there was nothing in Pastor Piper’s oral evidence to the Tribunal (or in the documentary material) that independently and of itself had been shown to undermine, deny or reject the Applicant’s claim to be owed protection obligations in the sense considered in SZBYR at [17]-[18]. It was submitted that the Tribunal’s view that Pastor Piper appeared to have an “intense focus” on comparing the Koran and the Bible and Christianity and Islam, both in the materials he had produced (his “tracts”) and the evidence he had given to the Tribunal, was part of an “appraisal” of the evidence which did not enliven the s.424A(1) obligation (see SZBYR at [18]).
The First Respondent pointed out that the Applicant had not identified any specific information in the particularised material that was said to constitute information for s.424A(1) purposes, beyond the general reference to “all” of the material referred to in the three footnotes to paragraph 163 of the Tribunal decision and Pastor Piper’s oral evidence to the Tribunal. It was said to be incumbent on the Applicant to identify with some specificity what it was in both the written material and the oral evidence of Pastor Piper that was said to enliven the s.424A(1) obligation. The First Respondent contended that it was not sufficient to try to work backwards from the Tribunal’s reasons to identify information which enlivened the s.424A(1) obligation.
The First Respondent submitted that as it had not been established that there was information which the Tribunal considered would be part of the reason for affirming the decision under review, it was not necessary to establish that any of the particularised information was within the s.424A(3) exceptions.
It was, however, acknowledged that some of the evidence in the documentary material referred to in the footnotes to paragraph 163 of the Tribunal decision (such as Pastor Piper’s profile on the church website) was specifically about Pastor Piper and would not fall within the exception in s.424A(3)(a) of the Act. However it was submitted that the other kinds of written information, in particular the “tracts” Pastor Piper produced, would be within the s.424A(3)(a) exception. It was also submitted that the letter of support from Pastor Piper, given to the delegate by the Applicant, was within the exception in s.424A(3)(ba) of the Act and that the letter of support given to the Tribunal was within the s.424A(3)(b) exception.
Consideration
Section 424A of the Act is relevantly as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
The issue of whether the particularised information was “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review” (see s.424A(1)(a)) does not simply depend on the use made of it in the Tribunal decision. As stated in SZBYR at [17]-[18]:
17. … The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
18. Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.
“does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(footnote omitted)
This reasoning was applied by the Full Court of the Federal Court in SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1; [2008] FCAFC 1 at [20] (cited in SZEWL at [36]).
In SZICU the Full Court found (at [25]) that it was not necessary for the purposes of that decision to enter upon the question as to how far (in light of the observations in SZBYR at [17]-[18]) a court:
… can or should enter upon a consideration of the Tribunal’s actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to making that decision had arisen.
However, in considering information in a passport the Federal Court applied SZBYR in finding (at [26]) that:
In the present appeal the alleged s 424A(1) “information” was that the appellant’s passport showed that he left India legally on a passport issued in his own name. That information did not in terms contain a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligation: cf SZBYR 235 ALR at [17]. On that question the passport was quite neutral. … The relevant “information” for s 424A(1) purposes, as SZBYR 235 ALR at [18] indicates, is not to be found in disbeliefs arising from a process of reasoning applied to the evidence. If it is to be found in this matter it must be in the text of the passport itself. It is not.
(emphasis added)
The Applicant has not pointed to any part of Pastor Piper’s oral evidence, letters of support or in the material cited in footnotes 11 to 13 of the Tribunal’s reasons that contains, in its terms, a rejection, denial or undermining of the Applicant’s claims to be a person to whom Australia owes protection obligations. Indeed, as in SZBYR at [17], one might have thought that had Pastor Piper’s supportive oral evidence and letters of support been believed, this would (were it not for other matters of concern to the Tribunal) have been a relevant step towards accepting the Applicant’s claims about the genuineness of his conversion (and hence departing from the decision under review).
The letters of support from Pastor Piper given to the Department and the Tribunal attested to the Applicant’s attendance at, and baptism in, the Liberty Baptist Church and were not expressly referred to in the particulars to this ground. However, if they were intended to be encompassed in the expression “materials he produces”, it has not been established that they constituted or contained information which enlivened the s.424A(1) obligation.
In the first letter (addressed to the Department) the pastor stated that his assessment was that the Applicant appeared to be a “sincere, genuine Christian”. Pastor Piper explained how he tested “the genuineness of [the Applicant’s] salvation”. He claimed that many Iranians had come to know that the Applicant was a Christian and that he attended the Liberty Baptist Church. Pastor Piper also expressed his view that the Applicant would face difficulties in Iran as a Christian. In addition, Pastor Piper provided a handwritten document which appeared to show attendances at church services and activities (including that of the Applicant).
On its face, this material supported the Applicant’s claims. The Applicant has not pointed to anything in this evidence that in its terms contained a rejection, denial or undermining of his claims to be a refugee. Nor, for that matter, has it been established that this letter reflected the “intense” comparative “focus” of Pastor Piper referred to in paragraph 165 of the Tribunal’s reasons.
The same may be said about the pastor’s letter of support of 5 July 2016 provided to the Tribunal. This letter described the pastor’s knowledge of the Applicant, the manner in which the gospel was explained to the Applicant, his baptism and attendance at church services and bible study, the fact he was active in inviting his friends to the church and what he said he had learnt as a Christian. The Pastor repeated some of his earlier observations and stated that in his view the Applicant was a committed member of the church and a “true Christian”.
Nothing in SZNKO supports the contention that these letters (or any of the other material in issue) enlivened the s.424A(1) obligation. In SZNKO the “supporting letter” that enlivened s.424A(1) was a letter which had been written for another protection visa applicant, but was in largely identical terms to the one provided by the applicant in SZNKO. What was in issue was the extent of disclosure required under s.424A(1) (see SZNKO at [23]). The Tribunal had disclosed the existence of the letter to the visa applicant at the hearing, but not the identity of the writer, the council from which it came or its date. Flick J considered (at [19]) that the details which had not been disclosed to the visa applicant concerning the person who wrote the other letter and the particular source from which it came, constituted “information” for the purposes of s.424A(1) of the Act.
This is not such a case. The letters from Pastor Piper to the Department and Tribunal, on their face, supported the Applicant’s claims. There is no issue about the existence of supporting letters for other visa applicants or the extent of disclosure required under s.424A(1) to meet the requirement of “clear particulars”.
Pastor Piper’s letters were not such that they might be used (adversely) to test the Applicant’s claims about his knowledge of or commitment to Christianity (cf. SZLIQ at [21]). On their face, these letters were not information before the Tribunal which would, or even could, have been relied on by the Tribunal to reach an adverse conclusion in relation to the Applicant’s claims. Rather, if believed, the letters were supportive. Indeed, the Tribunal accepted the evidence therein as to the Applicant’s attendance at church services and classes. In spite of this evidence, for other reasons the Tribunal found that the Applicant’s evidence as to his motivation for conversion and his Christian belief was unsatisfactory.
In addition, a number of items of documentary material were referred to in footnotes 11 to 13 to paragraph 163 of the Tribunal decision. The Applicant referred generally to the “material” Pastor Piper produced. The first document (cited at footnote 11) is entitled “Meet our Pastor”. I accept that it is a print-out of Pastor Piper’s profile page on the Liberty Baptist Church website as it was from 2012 until mid to late 2017. It is headed “Pastor Keith Piper”. It describes the Pastor and refers to his authorship of the “STOP Tract” and “Life of Christ in Pictures”. These publications are not in evidence. It would appear that in referring to “tracts” produced by Pastor Piper, the Tribunal was referring to documents such as that described in this profile as the “STOP Tract”. However nothing has been identified or is apparent in the profile of Pastor Piper that contains in its terms a rejection, denial or undermining of the Applicant’s claims to be a refugee on the basis of his conversion to Christianity such as to enliven the Tribunal’s obligation to put this material to him for comment under s.424A(1) of the Act. Nor is there any analogy with the circumstances considered in SZNKO.
As to the listed publications (including the “STOP Tract”), even if these were a source for the Tribunal’s views about Pastor Piper’s intense comparative focus, it has not been established that any such publication in its terms constituted or contained a rejection, denial or undermining of the Applicant’s claims to be a refugee as a genuine Christian convert.
The document referred to in footnote 12 to the Tribunal’s reasons is a description on the website of the Christian Democratic Party of the Australia Christian Nation Association Annual Conference in November 2009. The website referred to conference speakers and stated:
Pastor Keith Piper shared how to help Muslims to become Christians by pointing out the many errors in the teaching of Mohammed in the Koran. He has been successful in helping a number of Muslims in Sydney to become Christians.
Again, on its face, this information does not in its terms contain a rejection, denial or undermining of the Applicant’s claim (SZBYR at [17]). Indeed, the reference to Pastor Piper helping Muslims to become Christians would be neutral, or possibly supportive, of the Applicant’s claims.
The documents cited in footnote 13, under the heading “Muslim” on the church website, include a document in Farsi comparing Jehovah with Allah which is not in evidence but which is referred to in the Tribunal decision. The other website information described in paragraph 163 of the Tribunal decision is before the court. The Applicant did not identify any particular aspect of this material that undermined his claim to be a refugee. He appeared to assert that the information was all within s.424A(1) on the basis that it reflected Pastor Piper’s intense focus on comparing the Koran and the Bible as well as Islam and Christianity.
However, even if this written information and the tracts referred to in the profile do reflect Pastor Piper’s focus, this does not mean that it is adverse information within s.424A(1) of the Act. It has not been established either that such information in its terms undermined the Applicant’s claims or, as discussed below, that the Tribunal rejected the genuineness of the Applicant’s conversion and Christian beliefs in whole or in part because his evidence reflected Pastor Piper’s intense comparative focus. Rather, the Tribunal’s conclusion in this respect was based on its subjective appraisal of the Applicant’s oral evidence to it.
Pastor Piper’s oral evidence to the Tribunal is in evidence as part of the transcript of the hearing of 7 July 2016. It is summarised at [25] above. It did not relate to any “focus” Pastor Piper had on comparing Islam and Christianity and/or the Koran and the Bible. Rather, it considered the Applicant’s activities at the church, the nature of the church and Pastor Piper’s approach to baptism.
The Tribunal had regard to Pastor Piper’s evidence about the Liberty Baptist Church and the Applicant’s activities. It accepted that the Applicant had attended the church from October 2013 and had been baptised. It also accepted Pastor Piper’s evidence about the limited knowledge or understanding of Christianity he required before he was prepared to baptise attendees at the church and the fact that he accepted the motivation of attendees at face value. While the Tribunal saw this aspect of Pastor Piper’s views as weakening any weight to be assigned to his evidence, it has not been established that his oral evidence in terms rejected, denied or undermined the Applicant’s claim to be a refugee. Rather, it was potentially supportive.
Furthermore, as stated in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 436 FCR 549; [2004] FCAFC 123 (and adopted in SZBYR at [18]), the word “information” in s.424A(1) does not encompass the Tribunal’s subjective appraisals, thought processes or determinations.
The Applicant did not point to authority in support of the proposition that it was not necessary for the court to consider the content of the particularised material, because the Tribunal’s reasons amounted to evidence that it considered that material was information that would be part of the reason for affirming the decision under review within s.424A(1) of the Act. In any event, in so far as it is relevant to have regard to the Tribunal’s reasons, the Tribunal’s decision does not support the Applicant’s contentions.
Paragraph 165 of the Tribunal’s reasons must be seen in context. The Tribunal was considering the nature of the Applicant’s religious practice in Australia, having previously found that his evidence that he became interested in Christianity in Iran was contrived to explain and strengthen his claim of Christian conversion in Australia. After describing the evidence before it about the Liberty Baptist Church, accepting that the Applicant attended the church and was baptised and finding (consistent with Pastor Piper’s baptism practices) that the Applicant had little knowledge or understanding of Christianity at the time he was baptised, the Tribunal continued (at paragraph 165):
Notwithstanding the applicant’s attendance at Farsi language services and classes the Tribunal found the applicant’s evidence as to his motivation for conversion and Christian beliefs to be unsatisfactory. Despite claiming to attend Bible study classes regularly he could not satisfactorily explain the topic of the most recent Bible class. His discussion of his Christian beliefs revolved around a comparison of Islam and Christianity. The Tribunal considers this reflects the intense focus that Pastor Piper appears to have on comparing the Koran and the Bible as well as Christianity and Islam in the materials he produces (tracts) and in evidence he has given to the Tribunal.
I am not persuaded that this paragraph amounts to a finding that the Applicant had not spoken with conviction or religious commitment because his evidence only reflected Pastor Piper’s intense focus. Rather, the Tribunal referred to its concern that the Applicant’s evidence (not that of Pastor Piper) as to his “motivation for conversion” and his Christian beliefs was “unsatisfactory”. It is apparent that this finding reflected the fact that, as the Tribunal had recorded at paragraphs 88 to 90 of its reasons (set out at [27] above), it had found that when asked to explain his motivation for conversion, the Applicant was “unable to do so”. The Tribunal did record that instead of providing such an explanation, the Applicant “kept returning to comparisons of Islam and Christianity” but, relevantly, continued at paragraph 90:
The Tribunal found that the applicant was unable to explain his motivation for the conversion and kept returning to Pastor Piper’s comparisons of Islam and Christianity. It appeared he could not discuss his reasons or move beyond a particular script. When this was put to him he stated he had informal discussions with his boxing students, did his own research and decided he liked Christianity; he claimed he saw something in Christianity.
The finding in paragraph 165 reflected the Tribunal’s concern that at the hearing, instead of explaining his motivation for conversion, the Applicant had merely referred to Pastor Piper’s comparisons. Contrary to the Applicant’s submission, the Tribunal did not “discount” the Applicant’s evidence as to his understanding of, and commitment to, Christianity because he referred to the comparison of Islam and Christianity adopted by Pastor Piper. The Tribunal’s appraisal of the Applicant’s perceived inability to explain his Christian beliefs and his own motivation for conversion to Christianity and hence its view of the unsatisfactory nature of his evidence in this respect were aspects of its thought processes which led it not to accept that the Applicant was a genuine Christian convert.
This is clear when paragraph 165 is seen in the context of the following paragraphs. Again, the Tribunal did not simply rely on the perceived intense comparative focus of Pastor Piper in finding that the Applicant “did not appear to be able to speak with any conviction or religious commitment”. Rather, as the Tribunal stated at paragraph 166:
… the applicant continually referred to his handwritten notes before answering questions about his knowledge and about his Christian activities. He kept returning to comparisons of Islam and Christianity. The Tribunal accepts he may have been anxious about answering questions on his Christian knowledge given the delegate’s findings that his knowledge was rudimentary, however, he did not appear to be able to speak with any conviction or religious commitment.
In other words, it was the fact that the Applicant’s oral evidence was inadequate or lacking in conviction and religious commitment that was of concern to the Tribunal, not the source of or inspiration for his comparison of Islam and Christianity. This is also reflected in paragraph 167 of the Tribunal’s reasons. The Tribunal found that the Applicant’s knowledge of and commitment to religion was fairly superficial and that he did not appear to have a “personal engagement” with his claimed faith.
This part of the decision reveals the Tribunal’s subjective appraisal of the Applicant’s oral evidence to it and its thought processes in that respect. As stated in VAF, such matters do not constitute information which enlivens the s.424A(1) obligation.
The Tribunal’s reasoning in relation to its conclusion that the Applicant was not a genuine convert was reflected in paragraphs 168 to 170 of its reasons, as follows:
168. The Tribunal finds that his evidence as to how he first became interested in Christianity and then how he found the Liberty Baptist Church in Sydney indicates that he had decided to embark on a course of action to convert to Christianity to support his claims for protection and for no other reason.
169. The Tribunal considers that his decision to be baptised about one week after joining the church group in North Rocks suggests that he had already decided to go through a conversion to Christianity before he had any real opportunity to understand the nature of the religious beliefs of the church he was attending or to reflect on the consequences of his conversion. The applicant stated that the decision to convert was not momentous or critical one because he had rejected Islam but the Tribunal does not accept that evidence. The decision to convert from Islam to Christianity where the applicant’s family were described as devout Muslims in a country where conversion was severely discouraged would, if it had been genuine, have been a very significant decision with serious ramifications for the applicant, at least in terms of his family relationships. If however, the decision to convert was not a genuine expression of religious faith such a decision would only in his mind be a means to an end as the applicant could easily abandon his position once he obtained a permanent migration outcome.
170. The Tribunal considers that his decision to attend and join the Liberty Baptist Church is motivated by an intention to seek a permanent migration outcome in Australia. It finds that since his arrival in Australia he has followed a considered strategy to take steps to join a Christian group, to go through a conversion process and to make claims of Christian conversion to support his application for protection.
The Tribunal engaged in an appraisal of the Applicant’s oral evidence about his motivation for conversion, Christian beliefs, Christian knowledge, conviction and commitment as well as his evidence about the circumstances in which he decided to be baptised and his view that his decision to convert was not momentous or critical. His evidence in relation to these matters led it not to accept that the Applicant was a genuine Christian convert. The fact that the Tribunal observed that in giving evidence about his beliefs and knowledge the Applicant kept returning to a comparison of Islam and Christianity, is not such as to render information from the source of the Applicant’s knowledge or views in that respect information that in its terms undermined the Applicant’s claims for protection as a genuine Christian convert.
Further, contrary to the Applicant’s contention, the Tribunal did not find or proceed on the basis that Pastor Piper’s oral or written evidence and/or the materials he produced reflected an unbalanced or incomplete understanding of Christianity, such that the reference to Pastor Piper’s “intense focus” could in itself be seen as undermining the Applicant’s claims. Rather, as indicated, the Tribunal’s concern was the Applicant’s inability to do more than compare Islam and Christianity in explaining his personal motivation for converting to Christianity.
It has not been established that Pastor Piper’s evidence and the material he produced constituted information that enlivened the s.424A(1) obligation.
This means that, strictly speaking, it is unnecessary to determine whether any of the suggested information is within any of the s.424A(3) exceptions. I accept that if I am wrong and Pastor Piper’s oral evidence does enliven s.424A(1), then as information given orally by a witness other than the review applicant, his evidence would not be “information” that the review applicant gave to the Tribunal for the purpose of the application for review within the s.424A(3)(b) exception (see SZEWU). However in my view nothing has been pointed to in Pastor Piper’s oral evidence that in any way undermined the Applicant’s claims.
It appears that Pastor Piper’s first letter was provided to the Department as part of a bundle of supporting documents. Similarly, the letter to the Tribunal was provided by email of 6 July 2016 from the Applicant’s agent as part of the supporting evidence. As the First Respondent submitted, if, contrary to my view, such material constituted “information” within s.424A(1), the first letter would be in the s.424A(3)(ba) exception as information the Applicant gave during the process that led to the decision under review, while the second letter would be information the Applicant gave for the purpose of the application for review within the s.424(3)(b) exception.
While the profile of Pastor Piper was specifically about him (and not within the s.424A(3)(a) exception), it has not been established that anything in that profile enlivened s.424A(1) of the Act. Finally, contrary to the Applicant’s submission, the fact that other general religious material on the church website may reflect Pastor Piper’s beliefs does not mean that it (or any other footnoted religious material) was specifically about Pastor Piper. Nor do I accept that it was specifically about the Applicant. If, contrary to my view, such material enlivened s.424A(1), the exception in s.424A(3)(a) would apply.
As it has not been established that Pastor Piper’s evidence and the material he produced constituted information that enlivened the s.424A(1) obligation, no failure to comply with s.424A has been made out.
This aspect of the ground of review is not made out.
Section 425 of the Act
The other issue raised in the ground of review is a contention that the Tribunal breached s.425 of the Act. Once again, the alleged breach is expressed as a contention that the Tribunal erred in failing to put to the Applicant at the hearing the oral evidence of Pastor Piper and “the materials he produces” on which the Tribunal relied on in paragraph 165 of its reasons in finding the Applicant’s evidence to be “unsatisfactory”. No particular “issues” or “specific aspects” of the particularised material are identified in the grounds of review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63).
The Applicant submitted that the Tribunal had failed to invite him to give evidence and to present arguments in relation to the issues arising in relation to the decision under review in the sense considered in SZBEL. It was pointed out that in SZBEL the High Court had been very clear that specific aspects of claims and elements had to be raised with the Applicant as dispositive issues, stating at [47] that:
… where … there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
(emphasis in original)
The Applicant contended that the obligation under s.425 was not necessarily limited to identifying such “issues” and may extend to an obligation to put to an applicant any adverse conclusion which had been arrived at which would not obviously be open on the known material (see SZBEL at [49] referring to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293 at [30]).
It was submitted that in this case, neither the nature of Pastor Piper’s “approach” or his “intense focus” had been raised in the delegate’s decision. The Applicant pointed out that the delegate had taken Pastor Piper’s evidence at the departmental interview to be evidence of the Applicant’s attendance at the Liberty Baptist Church and a general endorsement that he “seemed genuine”. Hence, the Applicant was said not to be on notice from the delegate’s decision that the pastor’s perceived “extreme focus” and the extent to which he “reflected” that approach would be an “issue” on the review.
There was said to be a qualitative aspect to the Applicant’s commitment to Christianity based on Pastor Piper’s teaching that was not addressed in the delegate’s decision, but which formed part of the Tribunal’s reasons for affirming the decision under review. It was submitted that this issue had to be put to the Applicant, notwithstanding that in a sense it involved the Tribunal’s thought process (see SZBEL at [47] and Alphaone at [30]).
The Applicant contended that it was not sufficient in the present case that he knew that his commitment to Christianity was disputed. It was acknowledged that at the hearing the Tribunal had been thorough in asking the Applicant about aspects of his commitment to Christianity, but it was submitted that this did not suffice as it had failed to put the Applicant on notice that there was an “issue” in relation to Pastor Piper’s “intense focus” or the nature of his teachings and the extent to which this was reflected in the Applicant’s evidence. The Applicant also submitted that the Tribunal’s s.425 obligation in this respect was not met by its questions about the source of the Applicant’s knowledge.
The First Respondent submitted that the Tribunal’s appraisal of Pastor Piper’s evidence was not an “issue” that was dispositive of the review in the sense described in SZBEL. This ground was said to amount to an assertion that the Tribunal was required to give an Applicant a running commentary on its evaluation of the evidence, when it was not under such an obligation. It was also submitted that the Tribunal was not obliged to identify the significance of its questions (see SZBEL at [48]; Minister for Immigration and Citizenship v Applicant A125/2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [88]-[89]) or of the observation it made during the hearing that a comment the Applicant had made “… sounds like it comes from someone who might have Pastor Piper’s approach” (see transcript p.43, line 15).
The First Respondent submitted generally that the Applicant was on notice of the issues that were dispositive of the review by virtue of the delegate’s findings, in particular the delegate’s rejection of his credibility and his claimed commitment to Christianity (see SZBEL at [47]). It was noted that the delegate had also asked the Applicant to explain why he decided to convert to Christianity.
Further, the Applicant was said to be on notice of dispositive issues by virtue of the Tribunal’s questioning of him at the hearing. Such questioning was said to have given the Applicant the opportunity to give evidence and present arguments on matters of concern to the Tribunal, including the Applicant’s recall of the subject matter of recent Bible study sessions; country information concerning the extent of tolerance of Christian churches in Iran; why he decided to convert to Christianity, including whether his answers to questions about why he had decided to convert were things he had learnt from Pastor Piper as distinct from reflecting his own motivations; as well as statements made by him and omissions in his evidence (which were put to the Applicant at the hearing in accordance with s.424AA of the Act).
Consideration
Section 425(1) of the Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In SZBEL at [29], Gleeson CJ, Kirby, Callinan and Heydon JJ quoted the following remarks of the Full Court in Alphaone (at [30]) that:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. …
In SZBEL it was observed (at [30]) in relation to the parties’ submissions that:
Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal’s conclusion that the three identified elements of the appellant’s story were not “plausible”. Was that a conclusion “which would not obviously be open on the known material”? Or was it no more than a part of the “mental processes” by which the Tribunal arrived at its decision?
However, the High Court made it clear that there were difficulties with proceeding by way of identifying such a dichotomy, observing at [31]:
Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision‑making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
The Court explained at [33]-[34]:
33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.
(emphasis in original, footnotes omitted)
In this case the Applicant was on notice of issues dispositive of the review from the delegate’s decision. The delegate had asked him to explain why he decided to convert and had rejected his credibility and claimed commitment. The delegate’s decision put the Applicant on notice of the relevance of his motivation to convert, his attitude to Islam and Christianity, and his knowledge and practice of Christianity.
The “issue” was not what Pastor Piper thought or whether he had a balanced view of Christianity, but whether the Applicant was a genuine Christian convert. Relevant to that issue, the Tribunal had regard to the Applicant’s inadequate, and hence unsatisfactory, oral evidence as to his motivation for conversion and Christian beliefs as well as to other aspects of his evidence.
Further, the Tribunal’s view about Pastor Piper’s intense focus on a comparison of religions or texts was not in itself an “adverse” conclusion. Rather, the Tribunal’s concern was that the Applicant could not discuss his reasons for conversion or move beyond a particular script. The Tribunal was not obliged to give the Applicant a running commentary on its evaluation of his evidence (see SZBEL at [48]). The conclusion that Pastor Piper had an interest in making such comparisons was obviously open on the material he produced as shown on the church website. Moreover, it was alluded to by the Tribunal at the hearing.
The transcript of the Tribunal hearing reveals that it put the Applicant on notice of the issues arising in relation to the decision under review. At the hearing, after the Applicant claimed his life would be in danger as a Christian in Iran, the Tribunal asked: “So what made you decide to take this very momentous step of converting from Islam to Christianity?” (transcript p.42). In response, the Applicant talked about the Koran and the fact you could compare Islam and Christianity. The Tribunal stated (transcript p.43):
Tribunal Member: Can I just interrupt you. Umm the things you’re telling me now, are they things that you’ve learnt at Pastor Piper’s church?
[the Applicant]: No
Tribunal Member: Did you go to the mosque in Iran when you were a child?
[the Applicant]: I wasn’t in the mosque but this is what they teach you in Iran, that’s all.
Tribunal Member: But you see what you’re saying to me is in the second, the Medina, umm that's when we killed and confiscated, that sounds like a critical comment about Islam. That sounds like it comes from someone who might have Pastor Piper’s approach.
[the Applicant]: No this is my research, my understanding. This is comparing, comparison between Islam and Christianity.
Tribunal Member: But that’s not what I want you to do. What I want you to tell me is, explain to me why you made the decision to convert to Christianity.
[the Applicant]: When I compare it, that’s all related. I don’t quite understand the question.
Tribunal Member: Okay you, I mean the country information indicates that umm Iran is a, a majority Shia Islamic country. There are a group of people who are umm strongly religious. There’s also a very large part of the population that either is not very religious or doesn’t believe in religion at all. So wherever you are in that group, to make a decision to convert to a completely different religion requires some motivation, some reason. So what I’m asking you for is what was your reason, what did, what made you decide to do that?
[the Applicant]: So firstly I’ve inherited Islam from my father ...
(emphasis added)
In this way the Tribunal made clear to the Applicant the relevance of his motivation for conversion and the fact that this was not the same as his criticism of Islam or the comparison of Islam and Christianity engaged in by Pastor Piper. The Tribunal alerted the Applicant to the fact that it was enquiring about his personal motivation for conversion, as distinct from what he had learnt from Pastor Piper about Islam and Christianity.
This was reinforced in the following exchange (transcript p.44):
[the Applicant]: In Iran I was born into a muslim family but I didn't have a right to choose. So by comparing the two religion, Islam and Christianity, has let me to choose Christianity. In my country I had no right to choose.
Tribunal Member: But most people who grow up in a particular religion, whether they are strong believers or just inherited, generally just remain in that religion. To change means that you, there’s some reason that you want to change, some motivation for it.
[the Applicant]: So I was at discussions, I had with, the discussions with my students and really comparing and understanding the two religions and doing some of my own research lead me to that.
Tribunal Member: So you’re saying that the informal discussions you had with your boxing students lead, lead you to make this very very dramatic decision?
[the Applicant]: Well that actually made me curious to do some research.
Tribunal Member: I, I just finding it difficult to understand or accept the evidence that you're giving me about why you decided to convert.
[the Applicant]: How should I be saying it or explaining it that it’s not ...
Tribunal Member: Well no, it’s, you can only explain or tell me what is in your own mind but I’m just, to be fair to you, I’m just explaining the concerns that I have. Umm can I umm, is there anything else you want to say about that? Your reasons for conversion.
[the Applicant]: Okay. So umm after the discussion, the research ah that I did, I realised that I liked Christianity, very much and it gave me peace, the peace that I never had and but I could of at the same time easily come here you know umm to refuge in this country and still remain someone who’s born into a muslim family and continue. So I must have seen something in Christianity, like as the Pastor said, like it saved me, that’s why I chose it.
Again, in this exchange the Tribunal made it clear that the genuineness of the Applicant’s motivation for conversion was in issue. The Tribunal also later put to the Applicant that his evidence to the delegate might suggest a deliberate plan to convert for reasons other than a genuine belief in Christianity (transcript p.46).
The Applicant clearly understood that the genuineness of his conversion was in issue. Towards the end of the hearing he volunteered (transcript p.48):
… look at ah my life here since I’ve lived here. Ah whatever documents I have given you, I’ve submitted, the testimony of the Pastor it all shows that I’m a true Christian and I'm really living like a Christian …
No failure to comply with s.425 of the Act or any denial of procedural fairness in that respect has been established. As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 15 July 2020
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