BGG19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 457
•31 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BGG19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 457
File number(s): ADG 104 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 31 March 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied s 36(2)(a) and (aa) – whether applicant’s conversion to Christianity was genuine – whether the Tribunal made unreasonable findings – irrationality – whether applicant was denied procedural fairness – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 36(2), 36(2)(a), 36(2)(aa), 91R, 91S, 422B, 425, 476, 499 Cases cited: CLS15 v Federal Circuit Court of Australia [2017] FCA 577
CLS15 v Minister for Immigration [2016] FCCA 2164
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 719
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 458
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submission/s: 21 February 2025 Date of hearing: 25 February 2025 Place: Adelaide Counsel for the Applicant: Peter Barnes Solicitor for the Applicant: Ujvari Lawyers Counsel for the First Respondent: Oliver Morris Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 104 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGG19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Protection (Class XA) (Subclass 866) visa (the visa). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The applicant is a citizen of Iran (Court Book (CB) 13, 306). He first arrived in Australia in July 2012 as an unauthorised maritime arrival (CB 20, 42). He was interviewed by Department of Home Affairs (the Department) officers on 24 July 2012 and later participated in an Irregular Maritime Arrival Entry Interview on 7 August 2012 (CB 11, 110).
On 11 December 2012, he applied for the visa with the assistance of his lawyers (CB 28). The application was accompanied by a number of relevant forms and supporting documents, including statutory declarations (CB 29-86). He claimed to have been abducted by the Basij in 2005, as well being arrested and beaten in 2009 for participating in post-election demonstrations (CB 57-58). On 20 September 2013, the applicant’s representative provided the Department with a copy of the applicant’s baptism certificate dated 15 September 2013 (CB 101-103).
On 4 December 2013, the Department invited the applicant to attend an interview scheduled for 17 December 2013 (CB 104-105). He attended that interview with the assistance of his representative and a Farsi interpreter (CB 111).
On 26 March 2014, a delegate of the Minister refused to grant the applicant the visa (CB 106-126). The delegate accepted that the applicant was present at the 2009 protests but did not accept that he would be targeted by authorities for this reason, or as a returning asylum seeker, on return to Iran (CB 119-121), and further found that the applicant had “embellished this portion of his claims in order to strengthen his claims for protection” (CB 116). Similarly, the delegate found that the applicant had converted to Christianity in order to strengthen his protection claims and that he would not continue to follow the Christian faith in Iran, or be persecuted in any event, as long as he did not engage in proselytising (CB 123, 125).
On 1 April 2014, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision (CB 128-133). On 22 June 2015, the applicant was invited to attend a hearing scheduled for 5 August 2015 (CB 142-143). Prior to the hearing, he provided the Tribunal with written submissions, a statutory declaration and character references (CB 146-168). On 21 October 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 181-188).
The applicant then sought judicial review, first in the Federal Circuit Court of Australia (CLS15 v Minister for Immigration [2016] FCCA 2164) and then in the Federal Court of Australia where he was successful (CLS15 v Federal Circuit Court of Australia [2017] FCA 577) (CB 189-205). The matter was accordingly remitted to the Tribunal for reconsideration (CB 207-210).
On 1 November 2018 and 5 February 2019, the applicant participated in a further hearing before the Tribunal (CB 275, 285). The applicant and his wife each gave evidence at the hearing (CB 306), and the Tribunal also had regard to a further statutory declaration, letter of support and additional photographs (CB 257-258, 288-299).
On 15 February 2019, the Tribunal again affirmed the delegate’s decision not to grant the applicant the visa (CB 305-322).
On 22 March 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s second decision (dated 15 February 2019) pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by outlining the procedural history of the matter and confirming that the applicant and his wife had appeared before the Tribunal to give evidence and present arguments with the assistance of a Persian interpreter (at [2]-[5]). The Tribunal accepted that the applicant is a citizen of Iran and he does not have a right to enter and reside in a third country (at [2]).
The Tribunal set out the relevant criteria for a protection visa as prescribed by s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (at [6]). The criteria for a protection visa in s 36(2) is as follows:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
The Tribunal outlined that a refugee, for the purpose of s 36(2)(a), is defined in Article 1A(2) of the Refugees Convention as a person who (at [8]):
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The Tribunal further outlined that ss 91R and 91S of the Act qualify some aspects of that definition (at [9]). Those sections provide as follows:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
91S Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The Tribunal also outlined the complementary protection criterion in s 36(2)(aa) of the Act (at [17]-[19]), along with the Tribunal’s requirement to consider the PAM3 Guidelines in accordance with Ministerial Direction No 56 made under s 499 of the Act (at [20]).
The Tribunal then set out the applicant’s evidence and its findings of fact (at [22]-[61]).
Despite noting some “concerning” changes to the applicant’s narrative, the Tribunal accepted the applicant’s evidence that he was taken by the Basij in 2005 or 2006, that he participated in three protests in 2009 but was not arrested in relation to this, and that he departed Iran using a legitimate passport (at [28]).
The Tribunal set out the applicant’s evidence about his conversion to Christianity. The applicant had explained that he had been given a bible by the Salvation Army but did not understand much of it. Once he had moved to Adelaide, he met a priest and attended bible classes at his home every week for about two months prior to becoming baptised (at [29]). He explained that one day, he had a feeling that he should call a friend of his in Iran who didn’t have a child and told him that he was going to have a child. When he spoke with his friend six or seven months later, his friend told him that he was expecting a child. After that, he arranged to be baptised (at [30]).
The Tribunal put to the applicant that the chronology did not align, particularly with respect to the applicant deciding to be baptised before he had learned that his prediction about his friend having a child had come true (at [30]-[35]). The Tribunal found the applicant’s evidence to be “troubling” in this respect (at [50]).
The Tribunal noted the applicant’s lack of proselytising or evangelisation, particularly since changing from the Uniting Church to Catholicism, to which the applicant replied, “he [the applicant] is still maturing in Christianity and he is learning more and his faith is developing” (at [42]-[45]).
The Tribunal found the applicant’s commitment to his faith to be “cursory” based on his limited responses and inconsistent statements to previous Tribunals (at [50]). In particular, the Tribunal found his transition from the Uniting Church to the Catholic Church for the sole reason of his wife being Catholic to be “indicative of either a lack of knowledge of the differences, openness to a wide array of ways to practise one’s faith or ulterior reasons for following Christianity” (at [50]). The Tribunal found the applicant’s evidence that he does not attend Church regularly because he is looking after children to suggest that “his faith isn’t of primary concern” in circumstances where churches are welcoming of children (at [50]).
The Tribunal accepted that the applicant identified as Christian and had undertaken a baptism process, but found that his Christian activities were essentially limited to social interactions and were motivated by his wife’s Catholicism and his own particular visa circumstances. The Tribunal therefore found that the applicant was not a genuine Christian convert and that he would not pursue Christianity if he were to return to Iran (at [51]).
Based on the above finding and country information, the Tribunal found that the applicant would not be at risk of harm from his own family or the broader Iranian diaspora because of any perceived conversion, or even if he continued to pursue Christianity in Iran, or because of his denial of Islam (at [68]-[74]).
The Tribunal also made findings with respect to other aspects of his claims, including risks relating to his family, his return as a failed asylum seeker, or his past and future political involvement. Those findings are not challenged in this application.
The Tribunal found that the applicant’s cumulative risk does not rise to a level that amounts to a real chance of serious harm in the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of his return to Iran (at [100]).
The Tribunal found that the applicant met neither the refugee criterion in s 36(2)(a) nor the complementary protection criterion in s 36(2)(aa) (at [101]-[102]).
The Tribunal therefore affirmed the delegate’s decision not to grant the applicant a protection visa (at [104]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 22 March 2019 was amended on 16 August 2019 to contain the following grounds (reproduced without alteration):
1.The Tribunal's Decision in relation to the Applicant is affected by error of law by reason that:
1.1 The Tribunal erred in law in its construction and application of s36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) by focusing on, and treating as determinative of the Applicant's status as a refugee (within the meaning of Article 1A of the 1951 Convention relating to the Status of Refugees), whether his conversion to Christianity was genuine. In so doing it failed to direct itself to the correct question arising from the Convention and s36(2)(a) of the Act, namely whether the Applicant had a well-founded fear of persecution by reason of his religious belief and was therefore someone to whom Australia has protection obligations: para [50], [51], [68], [69], [71], [72] and [73].
1.2 The Tribunal erred in law in its construction and application of s36(2)(aa) of the Migration Act 1958 (Cth) by focusing on and treating as determinative, whether the Applicant's conversion to Christianity was genuine. In so doing it failed to direct itself to the correct question arising on s36(2)(aa) of the Act: namely whether as a necessary and foreseeable consequence of the Applicant's removal from Australia to Iran, there was a real risk that he would suffer significant harm by reason of him practising Christianity in Iran.
1.3 There was insufficient evidence to support the finding that the Applicant would not practice Christianity if he was required to return to Iran such that the finding was legally unreasonable.
1.4 The Tribunal’s findings in its reasons are unreasonably coloured by and based on its primary finding that the Applicant’s conversion to Christianity was not genuine: para [69], [78], [84], [90], [91], [93], [95], [100].
1.5 The Applicant has been denied procedural fairness in the finding of the Tribunal that the Applicant’s conversion to Christianity was not genuine and the Applicant would not practice his faith should he return to Iran, notwithstanding that the Tribunal failed to put to or ask questions of the Applicant regarding the practice of his faith were he to return to Iran. The Applicant was deprived of the opportunity to give evidence or make arguments to the Tribunal relevant to this issue and thereby deprived of the opportunity of a successful outcome.
The materials before the Court include:
·the amended application for judicial review filed on 16 August 2019;
·the affidavit of the applicant annexing the Tribunal decision, sworn and filed on 22 March 2019 (that affidavit being taken as read and in evidence at the hearing on 25 February 2025);
·the affidavit of Kazmer Ujvari annexing the transcript of the Tribunal hearing, affirmed and filed on 21 February 2025 (that affidavit being taken as read and in evidence at the hearing on 25 February 2025);
·a Court Book numbering 322 pages (marked as Exhibit 1);
·written submissions filed on behalf of the applicant on 13 February 2025; and
·written submissions filed on behalf of the Minister on 21 February 2025.
At the commencement of the hearing, the Court addressed the applicant’s counsel, Mr Barnes, on an issue raised in the Minister’s submissions, namely, that the applicant’s submissions appeared to raise an argument directed towards apprehended bias by the Tribunal. Mr Barnes confirmed that he did not allege bias and did not seek to amend their application for that purpose.
CONSIDERATION
As outlined above, the application for judicial review contains five grounds. However, it became clear at the hearing that all of those grounds had, as the Minister submitted, coalesced into a single ground alleging irrationality. This was essentially confirmed by Mr Barnes at the hearing who stated that the applicant’s case could be simply put as follows:
The Tribunal, through what we say is an irrational process of reasoning, concluded that although the applicant had been formally baptised as a Christian, he was not and is not a genuine believer, and therefore, he would not face harm if returned to Iran, including because he would not behave in a manner which would fall foul of the Iranian authorities’ prohibition on the certain practices of Christianity.
Some of the grounds set out in the application were not elaborated on by the applicant in either written or oral submissions. Nevertheless, they were not withdrawn and the Court will address each of the grounds as pleaded.
Grounds one and two – did the Tribunal misconstrue ss 36(2)(a) and 36(2)(aa)?
In his application, the applicant contends that the Tribunal misconstrued its statutory obligations under ss 36(2)(a) and 36(2)(aa) of the Act. The applicant contends that the Tribunal erred by treating the genuineness of the applicant’s conversion to Christianity as being dispositive of those statutory obligations. The applicant submitted that the correct enquiries for the Tribunal were:
(a)For the purposes of s 36(2)(a): whether the applicant had a well-founded fear of persecution by reason of his religious beliefs and was therefore someone to whom Australia owes protection obligations; and
(b)For the purposes of s 36(2)(aa): whether as a necessary and foreseeable consequence of the applicant’s removal from Australia, there was a real risk that he would suffer significant harm by reason of him practising Christianity in Iran.
The applicant did not expressly address these grounds in his submissions. It appears that through these grounds, the applicant essentially re-frames his central argument of irrationality in terms of a statutory question.
The Minister submitted that there is “a logic deficit” in the applicant’s contention that the Tribunal was required by s 36(2)(a) to consider whether the applicant had a well-founded fear of persecution by reason of his religious beliefs, but then also argued that the genuineness of that belief was not dispositive of the statutory question. As the Tribunal had found that the applicant’s Christian beliefs were not genuine, the Minister therefore submitted that there could be no question of persecution on the basis of those beliefs.
At the hearing, counsel for the applicant accepted the Minister’s submission that a finding that the applicant was not a genuine convert to Christianity is plainly dispositive of whether he would face persecution in Iran because of his religious beliefs. However, the applicant argued that such a finding is contingent on the Tribunal reaching that finding via a logical process of reasoning.
The Minister further submitted that the Tribunal considered whether the applicant might face persecution in Iran on account of his activities in Australia. Although not pressed by the applicant, counsel for the Minister submitted that the question of persecution as a consequence of religion did not solely turn on belief, but also on religious practice. In support of this proposition, the Minister referred to Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 458 at [81] where Merkel J observed:
[T]here are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent with the commonly understood meaning of religion as including its practice or with a like-minded community.
In this respect, the Minister accepted that it was relevant that, regardless of the genuineness of the applicant’s beliefs, he had nevertheless undertaken activities that would be associated with a conversion to Christianity.
With respect to s 36(2)(aa), the Minister submitted that the Tribunal was required to consider whether, as a necessary and foreseeable consequence of the applicant being returned to Iran, there was a real risk he would suffer significant harm for reasons not limited to the applicant’s religion. The Minister submitted that the Tribunal correctly considered all of the reasons cumulatively advanced by the applicant, including his conversion to Christianity, his separation from his family, his status as a returned refugee, his political activities and other incidents, and that it was correct to find there was not a real risk of significant harm to the applicant.
The Court accepts that the Tribunal appropriately exercised its statutory obligations under ss 36(2)(a) and 36(2)(aa). The determination as to whether the applicant met the criteria for either refugee status or complementary protection rested upon the Tribunal’s resolution of whether he was at risk of harm in Iran because he was a Christian, because he had converted to Christianity, or because of his practice of Christianity. In considering what may happen to the applicant upon his return to Iran, it was thus necessary to determine whether or not he was a genuine convert to Christianity. It was also necessary to determine whether he would be perceived to be a Christian in Iran because of his conduct in Australia. Furthermore, it was necessary to determine whether the applicant would not continue with activities related to his conversion to Christianity and the reason or reasons why he would choose not to do so.
The Tribunal considered each of these issues. The Tribunal determined that the applicant’s conversion to Christianity was “only on paper for the sake of the social interaction and support the church provides to asylum seekers in Australia, including possibly for furthering the chances of his asylum application” and was not a genuine spiritual conversion. The Tribunal considered that his description of activities as a Christian were essentially all social activities. Consequently, the Tribunal concluded that were the applicant to return to Iran, he would not seek out the same social activities through a church because the same motivating factors would no longer be present. The Tribunal reached a conclusion that the applicant would not pursue Christianity in Iran and would do so “free from fear”.
The applicant accepted at the hearing that the Tribunal properly considered the question of whether the applicant would be at harm because of a perception that he had converted to Christianity. In the Court’s view, that concession was properly made having regard to the Tribunal’s detailed reasoning in this respect, resting as it did upon a considered assessment of country information in respect of this issue.
No jurisdictional error arises in respect of grounds one and two.
Grounds three and four – was the Tribunal’s decision irrational?
By grounds three and four, the applicant contends that the Tribunal made unreasonable findings about the genuineness of his conversion and commitment to Christianity. As observed above, the applicant confirmed that this was at the heart of his application.
It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:
[131] …[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The correct approach, according to the High Court in SZMDS, is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (at [133]). The High Court further stated:
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
In Djokovic, it was observed that:
[35] Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
The applicant submitted that in this matter, there was “no room for a logical or rational person” to reach the same findings and conclusions as the Tribunal did on the material before it.
The applicant accepted that the Tribunal was entitled to enquire about the depth of the applicant’s knowledge and commitment to their own beliefs, but that there must still be (citing Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 (per Buchanan J):
[50] …a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution. The material obtained by the [Tribunal] from its examination must not be put to use in a way which is so irrational as to suggest the absence of a proper foundation for the stated conclusions.
The applicant argued that the Tribunal was “apparently intent on finding flaws” in the applicant’s conversion story, and that the Tribunal ignored the underlying credible substance of his story by instead placing undue emphasis on the obvious factual flaw that his friend could not have gone from being fatherless to becoming a father in the space of a month.
In response, the Minister submitted that the Tribunal was entitled to, and did, take into account several inconsistencies in the applicant’s story, which the Minister submits underwent multiple revisions even within the course of the Tribunal hearing, in reaching its finding about the applicant’s credibility. Of particular concern to the Tribunal was whether or not the applicant’s baptism followed the phone call in which he found out his friend had become a father. The Tribunal put to the applicant its concerns about the inconsistent timeline and the shifting nature of his story and, as submitted by counsel for the Minister, was at pains to make sure the applicant understood the relevance of this questioning to the Tribunal’s determination.
The Minister submitted that any obvious factual flaws were a legitimate source of concern for the Tribunal and it was entitled to have regard to such in assessing the credibility of the applicant’s story. The Tribunal was nevertheless not satisfied with the credibility of the applicant’s conversion story and the Minister submitted there was nothing unorthodox, unreasonable or irrational about the Tribunal’s analysis of this evidence, contrary to the applicant’s contention that the Tribunal was intent on picking holes in his claims. The Court agrees with the Minister’s submissions in that respect.
At the core of the applicant’s argument is a claim that the Tribunal reached an irrational conclusion where it said:
[51] I accept that the applicant…has converted to Christianity through a baptism process but I find that it is not a conversion that shapes his decisions and actions…
The applicant further submitted that the Tribunal was unfairly cynical of the applicant’s level of engagement in his church. The applicant submitted that, in reaching its finding that he was not a genuine Christian, the Tribunal failed to grapple with the applicant’s explanation for his infrequent attendance at church services due to the age and health of his daughter. Furthermore, counsel for the applicant submitted that it was irrational for the Tribunal to ignore the importance of social aspects within the church in what the applicant submitted was nevertheless an expression of faith and manifestly part of the behaviour of a genuine believer. In both oral and written submissions, counsel for the applicant submitted it was impermissible for the Tribunal to do so because “the expression of or the manifestation of a religious belief is not limited to church attendance…[or] to formal worship or liturgy” and that the applicant was “likely… to have seen value in being amongst Christians of longer-standing in order to learn from them and be guided by them…”.
In response, the Minister submitted that these claims were without merit and that there was nothing unreasonable about the Tribunal’s reasoning in those respects. The Tribunal found that the applicant’s attendance at church and engagement with his religion were not his primary concerns, and the Minister submitted it was not only open to the Tribunal to reach those findings on consideration of the applicant’s own evidence, but it was rational and probative of the genuineness of one aspect of the applicant’s claims.
The difficulty with the applicant’s submissions is that they simply suggest that the Tribunal could have, and should have, made an alternative finding about the genuineness of the applicant’s commitment to his faith. The applicant’s submission about the value of being around Christians of longer standing is purely speculative and the applicant advanced no evidence to the Tribunal on this point.
The Minister submitted that the applicant’s submissions are ultimately nothing more than a complaint that the Tribunal should have made different findings of fact and an impermissible invitation for the Court to engage in merits review. The Minister submitted that the applicant’s complaints do not rise to the level of extreme illogicality required to establish jurisdictional error (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175).
In the Court’s view, the applicant has set out a series of propositions in respect of what the applicant says the Tribunal should have found. These essentially take the place of counter-findings which the Court accepts may have been open on the evidence. However, simply stating what findings may have been open on the evidence does not establish that the findings that were ultimately reached are illogical or were reached through an irrational process.
The particular findings said to evidence irrational findings or an irrational process are as follows.
Firstly, the applicant takes issue with the Tribunal’s doubts in respect of the applicant’s conversion story.
The applicant’s complaint centred around the Tribunal’s focus upon a factual flaw in the timeline of the applicant’s story and an allegation that the Tribunal ignored the substance of the claim. However, as submitted by the Minister, the Tribunal was entitled to have regard to inconsistencies and factual flaws in determining whether the applicant’s story was credible. The Tribunal’s conclusion that it would have expected the inspiration for his conversion to “be indelibly marked” in the applicant’s mind was a conclusion which the Tribunal was entitled to reach. It was also a troubling aspect of the applicant’s ultimate claim in respect of his conversion which added to the Tribunal’s other concerns including his limited commitment to his newfound faith and his participation in only social activities of the church. The Court does not agree with the applicant’s characterisation of the Tribunal being intent on finding flaws in the applicant’s story of his conversion. In the Court’s view, the Tribunal did no more than try and ascertain the detail of that story to then consider whether it accepted it or not. There is nothing illogical or irrational in such an orthodox approach.
The applicant then impugned what is said to be the Tribunal’s cynicism as to the level of activities within the church. In this sense, the applicant posited that “a more immediate and comprehensive embracing of Christianity by an applicant might well give rise to a suspicion that that level of enthusiasm would suggest a deliberate attempt to “convert” for the purpose of bolstering a claim”. Suffice to say, the applicant’s counterview is really no more than a suggestion that an alternative finding was available to the Tribunal. There was nothing irrational in relation to the Tribunal considering the extent and nature of the applicant’s involvement in church activities. It was a relevant enquiry in respect of the genuineness of the applicant’s conversion. It was also relevant to consider whether the applicant would be likely to engage in similar activities in returning to Iran.
The applicant then similarly put forward the following series of criticisms (without alteration):
The member then pooh-poohs the social activities of the Applicant with other church members. This ignores the fact that such activities are often a core feature of the practice of a faith. It is an acknowledged form of fellowship – to break bread with others – as the founder of the faith did with his followers and, shortly before his death, with his disciples. The Catholic mass itself commemorates this simple but profound action.
The dismissal by the Member of this as being indicative of the Applicant’s faith also ignores the possibility that the Applicant is likely (consciously or unconsciously) to have seen value in being amongst Christians of longer-standing in order to learn from them and be guided by them in how to, as the Member terms it, ‘shape his decisions and actions’ in the future, as a convert to Christianity/Catholicism. The desire to do so is an expression of faith.
Nor is the lack in frequency of attendance of church services inconsistent with a genuine belief. The underlying element here might be the harbouring by the Member of a scorn for “Christmas and Easter” Christians or “lapsed” Catholics. The Applicant is most certainly not of this description. He attends church when he can, as does his wife, and in the course of his application to the AAT he presented a valid reason for his failure to attend church ‘religiously’. His daughter – his firstborn – who at the time of the decision was 18 months old, was born “very little”, a suggestion that she was likely premature and in need of special care and attention.
These submissions all clearly posit responsive explanations to the Tribunal’s findings. However, at their highest, they represent findings which the applicant says should have been made. In that sense, they clearly fall into merits review submissions. Simply positing an alternative finding to the one which was made by a Tribunal does not establish illogicality. It is certainly the case that the suggested reasons put forward by the applicant may well have constituted rational findings on the part of the Tribunal. That, however, does not detract from the fact that the findings which were reached by the Tribunal were themselves rational. These were simply, in the language of the authorities, matters upon which reasonable minds may differ.
There is nothing irrational or illogical in the Tribunal considering that the nature of the applicant’s church activities was limited to social interactions and that, in turn, was not indicative of genuine conversion or an inclination to pursue the same activities in Iran. Neither can it be said that having regard to the applicant’s limited attendance at church was unreasonable. The Court also observes that these were not explanations or reasons which were advanced by the applicant before the Tribunal. That in itself makes the applicant’s claim that the Tribunal’s reasons were illogical less compelling.
The evidence is clear that the Tribunal carefully undertook its task in understanding and considering the applicant’s evidence. It was required to consider whether or not the applicant’s conversion to Christianity was genuine. Ultimately, it found that it was not so satisfied. In reaching that conclusion, it did not ignore or overlook any relevant aspects of the applicant’s evidence, it did not reach any findings based on irrelevant material, and it clearly understood its statutory task. The findings reached were clearly within decisional freedom. There was nothing illogical or irrational about those findings and they were not reached through an unreasonable process.
No jurisdictional error arises in respect of grounds three and four.
Ground five
By ground five, the applicant contends that the Tribunal denied him procedural fairness by making a finding about his practice of Christianity if he were to return to Iran, having not ever put this to the applicant at the hearing. The applicant argued that the Tribunal was required to ask the applicant how he would practice his Christian faith if he returned to Iran.
In support of this submission, the applicant relied upon the decision of the Full Court of the Federal Court in NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (NADH). The applicant did not elaborate at the hearing on how NADH supported this ground.
Counsel for the Minister submitted that NADH cannot assist the applicant to overcome this hurdle because that case dealt with a Tribunal decision which was made in 2001 and preceded the enactment of s 422B, which occurred in 2002. Furthermore, NADH was a case concerning apprehended bias. Insofar as this ground can be interpreted as a failure to afford the applicant a hearing pursuant to s 425, NADH says nothing about the hearing rule as prescribed by Division 4 of Part 7 of the Act, or indeed any other requirement that the Tribunal put any potential adverse findings to the applicant. The Court accepts the Minister’s submission that NADH does not assist the applicant.
The Minister submitted that the applicant was well aware of the determinative issues in this matter and it cannot be suggested that he was surprised by any of the issues which ultimately determined his application, distinguishing this matter from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
The Court agrees with the Minister’s submission that it was a matter for the applicant to put on evidence and raise claims with respect to those issues, and it was a matter for the Tribunal to assess those claims but not elicit them (see NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 719 at [62]). It cannot be said that the Tribunal’s failure to ask further questions to assist the applicant to articulate his claims raises an arguable ground of procedural fairness.
In any event, the Tribunal found that the applicant was not a genuine convert to Christianity and accordingly would not engage in any related practice if he were to return to Iran.
No jurisdictional error arises in respect of ground five.
CONCLUSION
The amended application for judicial review, supporting affidavits, and written and oral submissions advanced by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 31 March 2025
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