BGZ16 v Minister for Immigration

[2018] FCCA 774

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGZ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 774

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where the Applicant claims the Tribunal failed to bring to his attention the issues arising in relation to the review for the purposes of s.425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425(1)

Cases cited:

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074

SZBEL v The Minister for Immigration and Citizenship [2006] HCA 63

Applicant: BGZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1109 of 2016

Judgment of: Judge Hartnett

Hearing date: 15 December 2017

Delivered at: Melbourne

Delivered on: 29 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Kenneally

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1109 of 2016

BGZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an amended application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 April 2016, wherein the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Protection (Class XA) visa (‘the visa’).

2. The single ground of application is as follows:-

   “The Tribunal’s decision is affected by jurisdictional error in that the Tribunal failed to comply with section 425(1) of the Migration Act 1958 (Cth) by:

   a) finding that the Applicant had not rejected the Islamic faith;  and

   b) not alerting the Applicant that whether he had rejected the Islamic faith was in issue, in circumstances where the Delegate of the Minister had accepted that the Applicant had rejected the Islamic faith. 

   Particulars

   A. The Tribunal found at paragraphs [108], [119] and [121] of its reasons that the Applicant had not rejected the Islamic faith.

   B. The Delegate of the Minister found at p 5 of its decision that the Applicant was agnostic, rather than Muslim.”

Background

1. The Applicant was born on 5 June 1985 in Tehran and is a citizen of Iran. He arrived in Australia in July 2012 as an Irregular Maritime Arrival. He completed an entry interview on 27 June 2012 wherein he described his religion as Shia Muslim and his ethnicity as Persian. During the Applicant’s entry interview and as noted by the delegate in the delegate’s Decision Record of 14 January 2014, the Applicant stated as to his reason for departing Iran:-

   “… that he left because of difficulties and problems as he had no support financially and personally and could not provide a comfortable life for himself despite working hard. The applicant was asked to say specifically what difficulties? The applicant spoke of not having parents, being able to rent an apartment or get married. The applicant stated that living expenses were very high so he would need support to keep up with these living expenses. The applicant was asked how this would constitute that he requires protection, to which the applicant replied that he needed to survive and could not find any other solutions and so thought of fleeing the country. The applicant confirmed that he had a job. The interviewing officer asked if there were any other reasons why he left to which the applicant stated he just wanted to start a new life. The officer again sought to clarify stating so your difficulties are to do with finances? To which the applicant replied it was financial as well as mental, that he wanted to start a new life, a life where his relatives don’t look at him with pity. The interviewing officer asked if there were any other reasons why he left? To which the applicant replied “no”.”

2. On 13 December 2012, the Applicant applied for the visa. The Applicant’s central claim related to his rejection of the Islamic faith.  That claim he outlined in his statutory declaration dated 13 December 2012 which accompanied his application for the visa. In that statement, the Applicant said, relevantly:-

   a)he is agnostic and has never practised Islam. As long as he could talk to God directly voluntarily he found no reason to follow an organised religion;

   b)this led to conflict with his uncle with whom he resided from about 2003;

   c)the authorities, that is the Herasat, became aware of the Applicant’s lack of faith because he had spoken to his work colleagues about religion and not fasted during Ramadan;

   d)an officer of Sepah (the Islamic Revolutionary Guard Corps) also became aware of the Applicant’s religious views;

   e)the Applicant’s uncle informed the Herasat that he was not a true Muslim; and

   f)therefore, the Applicant had a well-founded fear of being arrested or harmed upon return to Iran due to his rejection of the Islamic faith/not being Muslim.

3. On 14 January 2014, the delegate refused to grant to the Applicant a protection visa.  The delegate accepted that the Applicant had rejected the Islamic faith, and considered himself to be agnostic.  The delegate did not accept that any serious harm or threats were given to the Applicant by Herasat, Sepah or the Applicant’s uncle. The delegate accepted the Applicant had a genuine subjective fear of harm in the future due to his lack of religious belief, but, following a consideration as to whether the Applicant’s fear was well-founded, determined the Applicant’s lack of religious belief was unlikely to be of interest to the Iranian authorities.

4. On 7 February 2014 the Applicant applied for review of the delegate’s decision by the Tribunal. By correspondence of 20 April 2015, the Applicant was invited to appear before the Tribunal for a hearing on 2 June 2015. In the hearing invitation, the Applicant was informed, amongst other things, that issues in his matter may include:-

   “…What is your religion?  Do you express your religious convictions in public?  How?”

5. The Tribunal also indicated that it would be assisted by hearing evidence from any witnesses, such as members of the Applicant’s family, including witnesses overseas who could give evidence corroborating his claims. 

6. The Applicant’s migration agents thereafter forwarded written submissions to the Tribunal dated 25 May 2015. Those submissions, relevantly, stated that the Applicant was ‘Agnostic’; that “from a young age, the Applicant felt disillusioned about Islam because of the way it was forced onto Iranian citizens, and the way it restricted him. He never voluntarily practised Islam, but was forced to attend prayers while at school and during military service”; that following the Applicant’s move to reside with his maternal aunt and her husband, the latter being a deeply religious man, the Applicant and his uncle “would often argue about religion. These debates often ended violently where [the Applicant’s uncle] would throw the Applicant out of the house, or he would leave the house in disgust”; that during his employment with Company A “the Applicant often had conversations with his colleagues on a variety of topics including religion. Through these conversations, it became apparent that the Applicant rejected Islam and held essentially an Agnostic position.”

7. The Applicant’s submissions of 25 May 2015 clearly stated that one of the issues arising in the review was:-

   “Does the Applicant have a well-founded fear of persecution for reasons of his religion?”

   This was thereafter specifically addressed in paragraphs 74 to 87 of the submissions wherein the Applicant claimed that he did have such well-founded fear of persecution.

8. The Applicant’s submissions of 25 May 2015 set out the factual basis on which the Applicant claimed to have a well-founded fear of persecution for reasons of his religion. His claims were, relevantly:-

   “29. In or around August 2010, around Ramadan, the Applicant was not fasting. The Applicant ate at work but tried to be discrete. Suddenly, the Applicant was called into the Herasat office at [Company A], where he was questioned by an individual.

   30. Based on the nature of the conversation that followed, it became apparent to the Applicant that somebody had reported him to the Herasat for eating during Ramadan.

   31. The individual from the Herasat questioned the Applicant about whether he was eating during Ramadan and not observing the rituals. This questioning also served as a catalyst for him to question the Applicant further about his non-observance of Islamic principles such as praying.

   32. During the meeting the Herasat officer gave the Applicant a warning about his actions in an advisory way, and warned him of possible consequences if he continued in the same manner. The officer also warned the Applicant that he could report the Applicant to senior management, and refer him to Sepah.

   …

   33. In or around September 2010, the Applicant was summoned to see his manager, H. During the course of the meeting, it came up that the Applicant lived with his uncle... It so happened that H knew [the uncle] as [the uncle] ran two successful car sale and repair franchises …

   34. H was concerned about the Applicant's lack of observance of Islam. However, he mentioned that he would 'take it easy' on the Applicant, but reported the Applicant's issues to [the uncle].

   …

   35. In or around April 2011, [the uncle] forced the Applicant to accompany his two maternal aunts on a pilgrimage to Karbala in Iraq. They visited the Imam Husayn Shrine, one of the oldest mosques in the world and a holy site for Shia Islam.

   36. [The uncle] asked H to give the Applicant some days off from work for him to attend this pilgrimage. Although the Applicant did not want to attend to take a break from work, he had no choice but to follow.

   …

   37. In or around July 2011, H advised the Applicant that if [he] continued his behaviour, he would report the Applicant to the national office of the Herasat. Despite returning from the pilgrimage from Iraq, the Applicant still held the same views regarding Islam and was still riot adhering to the principles.

   38. Shortly after this conversation, [the] Applicant's Aunt … advised him that she had overheard H telling [his uncle] that the Applicant had already been reported to the national office of the Herasat.

   39. About a week or two after H had spoken to the Applicant, his shift manager … told the Applicant that he was requested to report to the Herasat national office, which was located within the airport compound but in a different building. He was advised to speak to a particular officer, T. T was also a member of the Revolutionary Guard (Sepah), as the Herasat was a wing of Sepah.

   40. When the Applicant attended the Herasat national office, the meeting was very civil. The Applicant was asked about why he had not been observing the tenants of Islam, and warned him that his employment could be terminated. As most new employees were hired on short term contracts (for the first two years), the Applicant was warned that his contract may not be renewed.

   41. T was essentially advising and encouraging him to be a better Muslim. After about half an hour, the Applicant was released.

   42. Following the conversation, the Applicant felt like he was being under constant surveillance. Whenever he was asked to attend to a particular job, somebody else was also advised to do the job with the Applicant. It became apparent to him that they were intentionally doing this. These actions caused the Applicant's other colleagues to avoid him as they were scared of potential repercussions of talking with the Applicant.

   …

   43. In or around August 2011, T again summoned the Applicant to the national Herasat office. However, this time, he took a much firmer tone with the Applicant, swearing at the Applicant and verbally abusing him. T was displeased that the Applicant had not changed his actions, and questioned the Applicant about his parents and beliefs systems, where he lived and whom he lived with.

   44. T advised the Applicant that the Herasat had built a file against him by talking to his neighbours and other shop keepers in the bazaar where he worked with his cousin. T said words to the effect of “I'll tell them to handcuff you and take you away” and accused the Applicant of being a 'mohareb'.

   45. After this meeting, the Applicant spoke with an Armenian friend, R, who imported automotive spare parts from China. R advised him that he could make his way to Indonesia and Australia to flee.

   46. For the next six to eight months, the Applicant kept a very low profile to avoid drawing any attention to himself from his colleagues or the Herasat. Despite this, the Applicant felt that he was not being himself and constantly felt that he had somebody forcing him to act in a certain manner.

   …

   47. In or around April 2012, [the Applicant’s uncle] told the Applicant that he had been contacted by the Herasat. The Applicant learned that the Herasat had asked [the Applicant’s uncle] about the Applicant, his beliefs and why he was not a true Muslim. [the Applicant’s uncle] said that as a good Muslim he could not lie to the Herasat, and that it was his duty to report the Applicant.

   48. As the Applicant had divulged to his aunt that he was planning to leave Iran for Australia, he was afraid that [the Applicant’s uncle] knew of his plans. Once the Applicant heard about [the Applicant’s uncle]’s conversation with the Herasat, it confirmed his plans to depart Iran.

   …

   51. Since the Applicant's arrival in Australia, he contacted his aunt in Iran and was advised that the Herasat has called to ask about him.”

The Tribunal

1. The Applicant ultimately attended a hearing before the Tribunal, the earlier scheduled hearing dates had been rescheduled, on 9 February 2016 to give evidence and present arguments in relation to the issues in his case.  The hearing was conducted with the assistance of an interpreter in the Persian and English languages.

2. The Tribunal considered the Applicant’s claims, as set out in his entry interview; in his statutory declaration dated 13 December 2012; and at interview with the delegate and set out such claims, relevantly, in respect of religion, in the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’).

3. The Tribunal decision notes the many and comprehensive questions asked by the Tribunal of the Applicant as to the Applicant’s religion; his beliefs; his religious practices; the source of his morality; and his life with his uncle and the difficulties that posed for him given his claimed arguments with his uncle as to his lack of religious practice. The Tribunal “questioned the applicant’s anti-religious views”. The Applicant was invited by the Tribunal to discuss “his problems in Iran” because of his religious views which included his claim that he had “denounced Islam”.

4. The Tribunal challenged what the Applicant said as to his religious claims. Its questioning of the Applicant clearly informed the Applicant that the veracity of these claims was a live issue. The Tribunal raised with the Applicant his credibility as an issue. The Tribunal said at paragraph 81 of the Decision Record the following:-

   “The Tribunal raised the applicant's credibility as an issue: he did not mention the claims which form the basis of his application at entry interview; he held a government job for two and a half years and he was not arrested or harmed but only asked questions from 2009 to 2012; the fact that he was happy to lie about his religious views to obtain a benefit (the government job); country information which indicates that the vast majority of people especially in Tehran do not go to mosque even once a week; and the fact that he went on a religious pilgrimage to Karbala. He said at the time of the entry interview he was still worried that things he says may become known to the authorities in Iran. In relation to the low mosque attendance in Tehran, he said that all these other people are fine, because they are not under surveillance, whereas he is. He did not specifically answer the other matters raised by the Tribunal at the hearing, but his representative sought to address them in post hearing submissions of 9 March 2016.”

5. The Tribunal found, when considering at some length and in a detailed way whether the Applicant had a well-founded fear of persecution on the basis of his religion, the following:-

   “96. The applicant's main claim was that he was harmed in the past, because while working at the airport he talked about religion (against Islam) to his colleagues, he did not fast and did not observe Ramadan.

   97. The applicant claimed that he was an agnostic, but then told the Tribunal that he believed in God. He said he was against organised religion. However, he himself acknowledged that even though he already had a job at the market, he attended an interview for a job at the airport and he did not see anything wrong in saying [to] his potential employer that he believed in Shia Islam. When asked about this matter at the hearing, he said that people would kill for this job.

   98. The Tribunal notes that if the applicant was prepared to “play the game” in order to get the job and he was trying to hide the fact that he was eating/drinking during Ramadan, it makes no sense that from the start of his employment he would talk against Islam thus risking losing his job. The Tribunal found the applicant's claim that he consciously spoke against Islam to be implausible given how keen he was to be employed at the airport. As he said to the Tribunal — people would kill to get such a job. If the investigation and gathering of material against the applicant took almost three years — from August 2009 until April 2012 — the applicant could have easily avoided all these problems by quitting this job and continuing as a self-employed person at the market.

   99. The applicant claims that from the start of his employment he openly spoke against Islam. He also claimed that it was only during the last six to eight months of his employment that he went to mosque and pretended to be pious. He found that extremely hard to do. The Tribunal does not accept the claim that the applicant's open discussions of religion and his absence from prayer sessions would not have brought him to the adverse attention of his employer immediately, given that he was working for a government employer where people took notice of his views and prayer attendance. The Tribunal finds the applicant never discussed religion openly, nor was he absent from prayers. The Tribunal therefore does not accept the explanation provided in the post-hearing submissions of 9 March 2016:

   As Ramadan falls annually it is unlikely that the applicant's eating habits would have been brought to the attention of Herasat until Ramadan from August 11 2010 and thus be visually rejected [sic] Islam in the workplace.

   100. The Tribunal points out one contradiction in the applicant's claims. While he was allegedly openly discussing his religious views and was “refusing” to attend prayers, yet for some reason he was trying to keep the fact that he was breaking the Ramadan fast a secret.

   101. There was another implausible aspect of the applicant's claims. Herasat had reported the applicant to his uncle back in September 2010 and the uncle was clearly concerned and angry. He had forced the applicant to go to a pilgrimage in April 2011 and it was evident that his uncle would not only not protect him from the authorities, but would in fact turn against the applicant. The applicant said in his statutory declaration that for the last six to eight months before he left Iran he did what he could to “keep a low profile to avoid bringing attention” to himself. He was scared that he may be caught again and sentenced to death. Yet, for some unexplained reason the applicant did not change his ways at home.

   102. The applicant did not claim that he felt compelled to continue in his job at the airport in order to “proselytise” his anti-religious views. One explanation was that he had no choice but to stay because he wanted to save enough money to leave the country. Therefore, he was forced to keep a low profile and avoid bringing attention to himself. However, when asked at the hearing about this, he said that he wanted the job at the airport, because it gave him access to free health insurance and to a pension in retirement; it was the type of job that people in Iran would kill for.

   103. The Tribunal finds that the applicant's long hair is an important detail. The Tribunal asked early on at the hearing about the applicant's hair and he said that he cut it short after arriving in Australia, because the climate was too hot. Towards the end of the hearing, the Tribunal suggested that the applicant had long hair in the photograph used for his work ID card at the airport. The applicant then said, for the first time, that he had been forced to cut his hair short in Iran; before he came to Australia it had grown back. The Tribunal considers that this is another fabrication. The Tribunal considers that if his employer had a problem with his long hair, he would have been forced to cut it before he commenced his employment; or at the very least he would have been forced to keep it short once he cut it. He would not have been allowed to grow it long again. While this is a rather minor detail, it adds to the general picture of the applicant as someone who managed to obtain an excellent job at the airport and who was allowed to keep his “Western” style long hair.

   104. The applicant was unable to explain why he would have been followed around the airport or why Herasat would have spoken to neighbours or people at the bazaar about him, if he openly and regularly expressed anti-Islamic views at work, and he did not pray and he did not fast during Ramadan. The Tribunal suggested to the applicant that his employer could have terminated his employment contract or could have had him charged with criminal offences. The Tribunal does not accept the claims that he was under surveillance at work or that the Herasat investigated him by speaking to his neighbours or to people at the bazaar or anybody else.

   105. The Tribunal does not accept that the security services, whose job it was to investigate the applicant, did not know that he was related to his uncle, even though his uncle had helped him get a job at the airport. And that instead of punishing the applicant formally in its capacity as its employer, it “reported” him to his uncle — which in turn led the uncle to “punish” him by forcing him to go to Kerbala.

   106. The Tribunal said that his uncle had forced him to go on a pilgrimage to Iraq. The Tribunal finds that far-fetched. If the applicant was not interested in Islam and was arguing constantly with his uncle about religion constantly, it is implausible that the applicant's uncle would have forced him to go on a religious pilgrimage. The Tribunal considers that it would have only ruined the uncle's spiritual experience as the applicant would have been highly likely to complain about being forced to go against his will. The Tribunal finds that once the applicant mentioned at entry interview that he went on a pilgrimage trip to Karbala, he then had to somehow explain it away. As a result he made up the claim that his uncle had forced him to go.

   107. The applicant has given confused evidence about his religions view. At entry interview he said he did not believe in God. At the Tribunal hearing he said he was not an atheist. He also said he did not like to use word agnostic to describe his views. The Oxford Dictionary online defines agnostic as “a person who believes that nothing is known or can be known of the existence or nature of God.” The applicant, according to his own evidence at the hearing does believe in God, but he is against religion, and Islam in particular. The applicant did not claim that in Australia he has engaged in any activities that would cause the authorities to impute the applicant with Mohareb, that is, enmity against God. He claimed that the authorities already know about his activities in Iran and they would also know that he has been to Australia. But in Australia he has not been spreading anti-religious views.

   108. Because of all the credibility concerns the Tribunal has, as set out above, it finds that he is not an atheist, nor an agnostic. The Tribunal finds that the applicant was in fact more pious than the great majority of Tehranians and he did observe Ramadan, prayed and did not express any anti-religious views. That explains why he went on a pilgrimage to Iraq.

   …

   112. The Tribunal rejects the applicant's claims in their entirety. The Tribunal finds that the applicant has never had any problems in Iran with his uncle, his brother or any other relatives, he has never had any problems with the authorities at work or outside of work for reasons of his appearance or for any other reason, such as being with a girlfriend or having too much fun with friends (claims made at entry interview rather than in the statutory declaration of 2012).

   113. The Tribunal finds that the applicant worked at the airport from 2009 until shortly before he left for Australia in 2012 without any problems. He prayed, he said nothing against Islam, he did not eat during the day in the month of Ramadan and he was never suspected of any anti-religious or anti-government views.”

1. Following the Tribunal hearing the Applicant’s migration agent had provided further written submissions to the Tribunal. These were dated 9 March 2016. The submissions noted that during the Tribunal hearing the Tribunal had raised a number of issues with the Applicant which included, relevantly “Does the Applicant have a well-founded fear of persecution on the basis of his religion?” The post hearing submissions addressed this issue in paragraphs 14, 17, 40 and 41. Those submissions are set out below:-

   “14. Furthermore, in the Applicant's entry interview, when asked what his religion was, the Applicant responded “I was born a Shia Muslim but I don't believe in God”, to which the interviewer responded -1 am asking a basic question, so what is your religion". The Applicant therefore answered that he was Shia. Given the pressurised nature of the questioning, it is plausible that the Applicant would be unable to disclose the complex nature of his claims and instead refer to the religion that he was born into.

   …

   17. The Tribunal was unconvinced that the applicant was questioned by Herasat, the Local State Intelligence Bureau's that exist in public facilities and universities to enforce moral values and standards, and queried the fact that it took them two years to request a meeting with the Applicant.

   18. As can be supported by the applicant's protection visa application, the Tribunal was mistaken, as Herasat questioned him within one year of working for [Company A] …

   19. The Applicant commenced employment for [Company A] in August 2009. Within his job application he had specified his religion as Shia, the religion he was born with, he was therefore, initially careful not to reveal his rejection of Islam, due to his fear of reprisals.

   20. Over time the Applicant would have conversations with his colleagues on a variety of topics including religion, when it became apparent that the Applicant rejected Islam.

   21. In or around August 2010, during Ramadan, the Applicant was observed eating, he was called into the Herasat office at the Saman Company, where he was questioned. It became apparent to him that he had been reported for eating during Ramadan.

   22. As Ramadan falls annually it is unlikely that the Applicant's eating habits would have been brought to the attention of Herasat until Ramadan from August 11 2010 and thus be visually rejected Islam in the workplace.

   23. It is widely accepted that Herasat are active in public facilities, such as airports, thus it would be more than likely that the Applicant would come into contact with them, when visually not adhering to Ramadan and attending prayers. These activities are supported by the International Campaign for Human Rights in Iran:

   Herasat offices are found in state institutions and universities throughout Iran, and are comprised of representatives of the Ministry of Intelligence who monitor such institutions in order to ensure continued fealty to the Islamic Republic and “prevent penetration” of any state institution by those deemed disloyal to the regime. They are found in every government office, in state-owned enterprises throughout the Iranian economy, in the state-run media, and in all of the universities, where they conduct surveillance, monitor private communications, act as informants, and influence hiring and firing practices. Members of the herasat harass, intimidate, and engage in widespread human rights abuses, and, in particular, violate Article 23 of the Iranian constitution, which states that “the investigation of an individual's beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.”

   Declaration of his religion

   24. The applicant was born a Shia Muslim, Islam had been forced upon him, he attended prayers while at school and during military service. From 2003 the lived with his uncle … a deeply religious man and was forced to pray five times a day. He was forced to be a Shia Muslim in his family home and lived in fear of reprisals.

   25. When applying for the position at [Company A], the Applicant entered his religion as Shia, the religion he was born with. It was not acceptable for him to apply for a government job in Iran and not be a Muslim. Discrimination in government employment practices is reported by the International Campaign for Human Rights In Iran, which states:

   The government is a major employer in Iran, and as such, government hiring practices have a huge impact on the country. At present, there is severe religious and ethnic discrimination in government hiring practices in Iran. Religious discrimination most pointedly affects Bala and Christian converts: Iranian Bala are completely denied government employment, and converted Christians have to hide their faith or they will be expelled from government employment. In addition, ethnic Kurds, Arabs, and Baluchis face significant discrimination in state hiring practices. Provincial and local level government offices rarely hire citizens indigenous to the province in management and high-level positions, and those communities are thus cut off from art important source of employment as well as decision-making capabilities on the local governmental level.

   26. The applicant's uncle provided shelter and a home for the Applicant, if he was to actively and openly reject Islam, he would become homeless and face financial hardship.

   27. For these reasons, the Tribunal should not make an adverse finding in relation to the lack of detail the Applicant provided in his entry interview, the length of time it took Herasat to question the Applicant and his misleading statement that he was a Muslim.

   …

   40. As outlined previously in the submission the Applicant has a well-founded fear on the basis of his religion, he has rejected the Islamic faith and has been interrogated at the hands of the authorities. Please refer to previous submission for detailed country information to support this.

   41. The Applicant has rejected Islam, which is a capital offence in Iran. As outlined by the Iran Human Rights Document Centre:

   Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. In addition, any person, Muslim or non- Muslim, may be charged with the crime of “swearing at the Prophet” if he or she makes utterances that are deemed derogatory towards the Prophet Mohammad, other Shia holy figures, or other divine prophets.”

2. On 21 April 2016, the Tribunal affirmed the delegate’s decision.  On 22 April 2016 the Tribunal provided notification of the decision to the Applicant.

3. Amongst the findings of the Tribunal as set out above, was the Tribunal’s rejection of the Applicant’s evidence about his religious beliefs. Indeed, the Tribunal found the Applicant was “not a witness of truth” and that “he fabricated all his claims of past harm and made up his ‘religious’ views”.

4. Consequently, the Tribunal rejected the Applicant’s claim to a fear of harm on the basis of his lack of religious belief.   

Consideration

1. The Applicant relied upon submissions dated 21 November 2017. The Applicant relied further upon an affidavit of Ms Amy Elizabeth Faram affirmed 20 November 2017 which annexed a transcript of the audio recording of the Tribunal hearing conducted on 9 February 2016.

2. The Respondent sought dismissal of the application and that costs follow that event.  The Respondent argued that no jurisdictional error attends the decision of the Tribunal.

3. The Applicant alleges the Tribunal failed to bring to his attention the issues arising in relation to the review for the purposes of s.425 of the Migration Act 1958 (Cth) (‘the Act’). There are two fundamental questions as characterised in the submissions of the First Respondent which require answering in the Court’s consideration of this matter. They are:-

   a)what were the determinative or dispositive issues to which the Tribunal’s reasoning process was directed? and

   b)were the Tribunal’s findings in relation to those issues obviously open on the known material or, alternatively, had those issues been adequately notified to the Applicant by the Tribunal?

4. Section 425 of the Act is as follows:-

   “MIGRATION ACT 1958 - SECT 425

   Tribunal must invite applicant to appear

   (1)  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.

   (2)  Subsection (1) does not apply if:

   (a)  the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 424C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

5. In SZBEL v The Minister for Immigration and Citizenship [2006] HCA 63, the High Court of Australia (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) considered the issue now before the Court stating, relevantly:-

   “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.

   35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   …

   But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

   …

   46.  Three further general points should be made.

   47. First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, 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.

   48. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

   ‘the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.’

   Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

6. The Applicant essentially argues that the Tribunal took no steps to identify for the Applicant that the issue of his religion was a relevant “issue” arising in the review. 

7. The Applicant argued that the determinative issue in the delegate’s decision was that despite being agnostic the Applicant had not and would not, come to the authorities’ attention. The determinative issue in the Tribunal decision was that the Applicant was not agnostic and, in fact, was a Muslim. The Applicant complained that the Tribunal did not alert the Applicant that his lack of religious belief was an issue. In failing to advise the Applicant of this important matter, the Applicant argued the Tribunal committed a breach of s.425 of the Act. The Applicant claimed further that the Tribunal did not specify to the Applicant that it doubted his lack of religious belief. The Applicant claimed that during the hearing the Tribunal’s questions framed the issues in review as whether the Iranian authorities would consider the Applicant an apostate.

8. The delegate did not accept that Herasat had built a file against the Applicant, that he would be considered an apostate or that his uncle had reported him to Herasat; however, the delegate accepted the Applicant’s lack of religious actions may have resulted in Herasat threatening to fire the Applicant.

9. The delegate found that although the Applicant may have a subjective fear of persecution, country information indicated such a fear was not objectively well-founded because the Applicant’s position was not uncommon in Iran where most people under the age of 25 considered themselves to be agnostic yet experienced no harm.

10. As set out in these reasons above, the Tribunal’s findings as to the Applicant’s religion differed from those of the delegate. So too did the credibility findings of the Tribunal.

11. The Tribunal first addressed religion at the start of the hearing saying:-

    “I need to tell you from the start that if I accepted that you are going to be considered by the Iranian authorities to be an apostate or to be someone who has turned away from Islam, then I will … remit your case.”

12. What preceded the above was the Tribunal asking the Applicant:-

    “Have you changed your religion?  Has anything changed since you were interviewed by the Department of Immigration”

    and further:-

    “Tribunal member: Have you changed religions? Have you, for example, become a Christian or have you joined some other religion? 

    Applicant: No, I haven’t.”

13. The Tribunal added:-

    “I don’t want to leave you with a false impression, my understanding of the country information is that there are millions and millions of Iranians who are not practising Islam and are not terribly interested in going to the mosque regularly and doing the things that the government would like them to do.  So if I find that you are just one of those people, who’s not a very pious Muslim, and the government would prefer that you were more committed and devout, if that’s all I find then I will not be remitting the case.

    Now, if I misunderstand the situation in Iran, you should let me know and we’ll discuss exactly what your views are, exactly what you think may happen to you.”

14. Shortly after this exchange the Tribunal questioned the Applicant about his beliefs:-

    “Tribunal member: And what is your current religion? 

    Applicant:  Currently I don’t have any religion. 

    Tribunal:  Okay. When you say “currently” when would you say you changed?

    Applicant:  Actually, I never believed in anything. 

    Tribunal: What you have said in the past is a little bit confusing, so you have described yourself as agnostic.  My understanding of agnostic is someone who doesn’t know if there is a God or not, whereas it seems to me you’re saying you believe in God, you just don’t believe in organised religion. 

    Applicant: Well, I did not necessarily use that term – that English term agnostic. The truth is that I do believe in God, but I don’t believe in a religion.

    …

    Tribunal: All right. So in what way – so you are not interested in calling yourself Muslim, Christian or Buddhist or any other religion. Do you, for example, sometimes pray to God? Do you talk to God, for example, when you have a difficult time in your life?

    Applicant:  Yes, I do. 

    Tribunal:  You do?  Okay.  All right.  And do you have any idea whether the interpretation of Islam in Iran was different – for example, if you were granted a protection visa and you are allowed to stay in Australia, can you imagine yourself practising Islam because you don’t have the conservative interpretation of Islam forced upon you?

    Applicant:  Well, you don’t have – you don’t necessarily have to believe in fate, like Islam or any other religion.  Well, you can, you know, talk about it like directly without having any, you know, religion and I believe most of the problem is in war that stems from religions.  Take wars, for example, most of the wars are being fought because of religions. 

    Tribunal:  Okay.  So you don’t feel the need to practise with other people?  You are happy just doing your own thing.  When you want to talk to God, you just do it in your own time and in your own way. 

    Applicant:  Yes, that’s right. 

    Tribunal:  Okay. And therefore you don’t follow any of the prescriptions such as, for example, in Islam obviously there’s Ramadan, but in Christianity also there’s fasting. There’s what’s called Lent which is 40 days – for 40 days before Easter you don’t do any such things.

    Applicant:  No.”

15. It is evident that the Tribunal discussed with the Applicant, and made clear to the Applicant, that a determinative issue in his case was his religion or lack thereof. The Tribunal canvassed his expression of religious views; his behaviours; and practices in that context and all those matters critical to the Tribunal’s rejection of his claims in this regard, including matters as to credibility. The Tribunal’s questioning of the Applicant during the hearing made clear these were matters in issue, as had the hearing invitation. It is evident also that the Applicant understood that to be the case as the submissions relied upon both before the hearing and post the hearing addressed, in some detail, those critical issues as to religion.

16. The Tribunal asked the Applicant about problems he had encountered because he was not a Muslim as claimed by him, and thereafter followed the Applicant’s claims as to his employment and the Tribunal’s questioning of matters in relation thereto.  Next followed the Applicant’s claim that his uncle forced him to undertake a religious pilgrimage to Karbala and that on his return he had been reported to Herasat. The Tribunal expressed doubts to the Applicant as to his claims:-

    “Tribunal:  And nothing had come to a head earlier than two years? I mean, it’s – you had been reported in 2010 during Ramadan and then you went to Kabbalah in 2011 and then it wasn’t until about July 2011 that you were reported to the national office of the Harazat.  Were you pretending during some of that time that you are religious?  So were you holding back on your views attending mosque on Friday or you were just carrying on as normal, but nothing happened to you?

    Applicant: Sometimes I would attend some gatherings, sometimes I didn’t.  Well, I think that the major problem that I had with the national Harazat office was regarding the discussions that I had regarding religion and Islam with other employees because I denounced Islam, so that was the major problem.

    Tribunal:   You denounced Islam?

    Applicant:  Yes.

    Tribunal:   When did you denounce Islam?

    Applicant:  Yes, I simply didn’t believe in that.

    Tribunal:  Did you say that right from the start when you were employed at the company, which was 2009?  You expressed your views about religion, that it causes wars and problems?

    Applicant:  Yes, I used to discuss these issues with other boys, like the other employees.  We talked about these things.

    Tribunal:  Okay.  So I still don’t understand.  It’s either a serious problem talking against the government and against Islam in Iran or it’s not and if it is, I don’t understand first of all why you would talk with other employees about it if you’ve grown up in Iran; and secondly, if you did say that religion – organised religion is bad, why would it take two years for Harazat to actually get around to calling you into their national office?

    Applicant: Well, I would talk about these things with my co‑workers, like my colleagues, and they seemed very friendly.  They would talk about the same thing themselves and they would discuss things with people who are working in the same shift with me, so we are co-workers and we are friends and they would say exactly the same things themselves.  And I am not sure why it took them so long to raise these issues with me.  I mean, I’m talking about the Harazat. Maybe they wanted to gather more information about me.  Maybe they wanted to monitor me.

    Tribunal:  What was there to monitor?  You don’t go up to mosque.  You have certain views.  What was there to monitor?”

1. The Tribunal later asked the Applicant why his employer did not simply fire him, to which the Applicant responded:-

   “They would need to find some evidence against me apparently.”

2. The Tribunal engaged in some considerable discussion with the Applicant as to his own views; what other people knew of his views including his alleged rejection of Islam; and what the authorities allegedly knew of his rejection of Islam and what he would do in response. ‘Why’ the Applicant may have rejected Islam, which the Tribunal found in any event he had not, was not an ‘issue’ as contemplated by s.425 of the Act.

3. The issue of whether the Applicant had fabricated his claims, both generally and in relation to religion specifically, was tested by the Tribunal by asking specific questions and stating specific concerns, including:-

   “at the so-called entry interview you didn’t mention anything about these problems at work

   …

   My concern is that what may have happened is that you realised that what you said at the entry interview would not be enough to get a protection visa and then you had to make up something bigger – a bigger story that would sound like you had serious problems.

   …

   It seems to me that if you were considered not quite right in terms of your religious views that you would have been fired from your job or if you were considered to be seriously dangerous and subversive so that you could, for example, cause problems, that they would have arrested you.”

4. As is accepted by the Court, the Minister submitted that the Tribunal’s findings concerning the Applicant’s claim to have rejected Islam and to be an agnostic (which may also be described as whether the Applicant was genuine in his rejection of Islam), were obviously ‘open on the known material’.[1] Additionally, the Court finds the Applicant was clearly notified of the critical issues in the case by the Tribunal’s direct questioning of the Applicant.

   [1] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074, 591-592, SZBEL v The Minister for Immigration and Citizenship [2006] HCA 63, 29 & 32.

5. The application cannot succeed and shall be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  29 March 2018