CGC16 v Minister for Immigration
[2017] FCCA 3235
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGC16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3235 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a protection visa – applicant needs a 16 month extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 476, 477, 486A |
| Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 |
| Applicant: | CGC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2223 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 December 2016 |
| Date of Last Submission: | 7 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams of Counsel |
| Counsel for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 12 October 2016 for an extension of time order pursuant to s.477(2) of the Migration Act 1988 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2223 of 2016
| CGC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Iran aged 35 years, having been born on 23 September 1982.
By Amended Application filed in this Court on 12 October 2016 he seeks:
a)an extension of time of over 16 months under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) for him to make his substantive application to this Court under s.476(1); and
b)to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal, and formerly the Refugee Review Tribunal) dated 26 February 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 9 September 2013 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background and Claims for Protection
The Applicant arrived at Christmas Island on 26 July 2012 by boat from Indonesia. He lodged his Protection visa application on 1 February 2013.
The Applicant claimed to have been born and lived in Iran until April 2008 when he travelled to Turkey and stayed there for 3 months working in a sewing factory. He returned to Iran briefly for 1 month and then returned to Turkey for another 3 months from where he again returned to Iran and remained until he left Iran legally on a genuine Iranian passport and flew to Jakarta in Indonesia.
The Applicant claimed that he was of Arab ethnicity and a Shia Muslim. In May 2012 he became engaged to his fiancé and it was a condition of this engagement that he had to convert to Sunni Islam, to which he agreed and which had led him to convert from Shia to Sunni in April 2012. His uncle was a religious fundamentalist who phoned him after his engagement and told him he was an infidel and that the uncle was going to inform the authorities. A few days later the Applicant claimed that four men forcibly took him to an underground place where they tortured him and threatened to kill him for being an infidel.
The Applicant claimed that since arriving in Australia he has been influenced by a number of Christian friends and attended Church five or six times while in immigration detention and realised in November 2012 that he was a Christian.
Upon his release from detention on 16 January 2013 he claimed regular attendance at the Liberty Baptist Church in North Rocks every Sunday and that he was baptised into the Christian religion on 14 April 2013.
The Applicant claimed to fear harm from the authorities in Iran as a converted Christian and because of his previous conversion to Sunni Islam.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations). In her Decision Record the Delegate found that the Applicant did not face a real chance of persecution in Iran under the Refugees Convention criterion as a result of his Arab ethnicity, conversion to the Sunni religion, his return to Iran as a failed asylum seeker and for any imputed political opinion. Further, the Delegate was not satisfied that the Applicant faced a real chance of suffering significant harm should he return to Iran under the complementary protection criterion for the same reasons that she had found that he would not suffer persecution for a Refugee Convention reason. Further, the Delegate did not accept that the Applicant was a genuine convert to the Christian religion as he had claimed. Rather, the Delegate found that the Applicant had engaged in conduct with respect to his Christian activities in Australia for the sole purpose of strengthening his claim to be a refugee and she refused to grant a Protection visa to him.
Tribunal Hearing and Decision Record
The Applicant applied to the Tribunal on 12 September 2013 for merits review of the Delegate’s decision. The Applicant appeared before the Tribunal on 16 December 2014 to give evidence and present arguments and the Tribunal also received evidence from Pastor Keith Piper, who was the Pastor of the Liberty Baptist Church at North Rocks.
In the result, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a Protection visa.
At [5]–[9] of its Decision Record the Tribunal summarized the Applicant’s claims for protection, noting at [9] that the Applicant claimed that when he arrived in Australia he became interested in Christianity and that he decided in November 2012 that he would like to become a Protestant Christian, and since then had considered himself to be a Christian. He feared that if he returned to Iran he would be killed, tortured or beaten because he had converted to Sunni Islam in April 2012, Christianity in November 2012 and because of his Arab ethnicity.
At [21]–[34] the Tribunal recorded its questioning and enquiry of the Applicant and the evidence given at the Tribunal hearing concerning the Applicant’s claimed conversion to the Christian religion.
At [44]–[78] the Tribunal considered and analysed the Applicant’s claims and evidence, with its various inconsistencies, and in summary found as follows:
a)At [48] the Tribunal found that the Applicant’s evidence lacked credibility and did not find the Applicant to be a reliable, credible or truthful witness, but that he had fabricated his entire claim in order to be granted a Protection visa;
b)At [54] the Tribunal recorded that it did not accept that the Applicant was required to convert from Shia to Sunni Islam in order to marry his fiancé and therefore it found at [55] that the Applicant had not been detained, tortured and charged in Iran;
c)In relation to his claims of adherence to the Christian religion the Tribunal at [59], whilst accepting that the Applicant had been baptised, regularly attended Church services and Bible classes at Liberty Baptist Church and handed out religious pamphlets at Parramatta, found that this had been done in a deliberate and targeted manner solely for the purpose of strengthening his refugee claim, rather than because of a genuine interest in the Christian religion;
d)Accordingly the Tribunal recorded that s.91R(3) of the Act required the Tribunal to disregard this conduct in determining whether the claimant had a well-founded fear of persecution; and
e)At [69] the Tribunal recorded its finding that the Applicant was not a genuine Christian and had not told anyone in Iran that he had been converted to the Christian religion. The Tribunal also was not satisfied that the Arab ethnicity of the Applicant would entail persecution in Iran or that he would suffer harm if he returned to Iran due to being perceived as a failed asylum seeker.
The Tribunal also rejected the Applicant’s claims under the complementary protection criterion and affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Ground of Application for Extension of Time Under s.477(2) of the Act
The Ground for the application for the extension of time is as follows:
The reason why the application is late is because the applicant only recently became aware of his constitutional right under section 116 of the Constitution and the test case in S178A/2016 & Ors v. Minister for Immigration and Border Protection & Anor - S178/2016, filed in the High Court of Australia on 8 July 2016.
At the hearing of this matter in this Court the Minister opposed an extension of time on the grounds that the delay is very significant, the explanation for the delay is inadequate and none of the proposed substantive Grounds have any merit.
Proposed Grounds of Attack on the Tribunal Decision in this Court
There are nine proposed substantive Grounds in the Amended Application, and omitting particulars they are as follows:
Ground 1: The Imposition of Religious Observance in Violation of Limb Two of Section 116 of the Constitution
The second respondent violated the second limb of section 116 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution) by imposing religious observance on the applicants.
Ground 2: The Prohibition of the Applicant’s Free Exercise of Religion in Violation of Limb Three of Section 116 of the Constitution
The second respondent violated the third limb of section 116 of the Constitution by prohibiting the applicant’s free exercise of religion.
Ground 3: The Violation of the Free Exercise of Thought, Conscience, Religion or Belief in Violation of the Principles of Customary International Law
The second respondent violated the applicant’s right to the free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia. Alternatively, it was not reasonably necessary nor proportionate to violate the applicant’s right to the free exercise of thought, conscience, religion or belief, in order to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
Ground 4: Misapplication of law or failure to ask the correct question
The Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the applicant’s conversion from Shia Islam to Christianity. The correct question before the Tribunal was not whether or not the conversion from Shia Islam to Christianity of the applicant was “genuine”. Rather, the correct question before the Tribunal was strictly whether as a result of the applicant’s conversion from Shia Islam to Christianity per se, was there a real risk of persecution or harm to the applicant under either the law of general application or by way of any extra-judicial mistreatment.
Ground 5: Insufficient logical or evidentiary basis for the Tribunal’s decision
There was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a ‘genuine’ Christian at [69] and [76] after accepting the applicant was baptized, attended bible classes and church at [59] of the decision record.
Ground 6: Insufficient disclosed rational basis for concluding that the elements the applicant might reasonably know regarding Christianity
There was not a sufficiently disclosed rational basis for concluding that the elements of which the appellants were ignorant were elements that an adherent to the religion might reasonably be expected to know.
Ground 7: Improper Purpose – The Tribunal cannot assume the role of an arbiter of the Christian faith
The decision by the second respondent was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
Ground 8: Insufficient logical or evidentiary basis for the Tribunal to apply section 91R(3) of the Act
There was an insufficient logical or evidentiary basis for the Tribunal to find the applicant’s religious practises in Australia were for the sole purpose of his refugee claims, when applying section 91R(3) of the Migration Act 1958 (Cth). Alternatively, the application of section 91R(3) by the Tribunal was not reasonably appropriate and adapted to serve a legitimate end.
Ground 9: Relevant/Irrelevant Considerations
The Tribunal erred by taking into account an irrelevant consideration as to whether the applicant was a “genuine” Christian and failed to take into account of a relevant consideration, that apostasy is punishable under Shariah law irrespective of whether the conversion is genuine or disingenuous.
Consideration of Extension Application
In considering whether it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account. Those factors include:
a)whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b)whether there is any prejudice to the Minister; and
c)whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success (SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]).
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not travel beyond an examination of the proposed substantive grounds at “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 597 – 598 [62] per Mortimer J and the Court should not descend into a fuller consideration of the arguments for and against each Ground: see the decision of Perry J in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 (AYX15) at [10].
I do not consider that the Applicant has given a reasonable and adequate explanation for the delay. On any view the delay of over 16 months is lengthy. In AYX15 at [12] Perry J said, when considering a delay of 17 months, that the applicant had to satisfy her that that the case was “exceptional” before she could be satisfied that it was necessary in the interests of justice to make an order extending time.
There is no suggestion by the Applicant that he was unaware of his right to seek judicial review of the adverse decision of the Tribunal in this Court within the period of 35 days prescribed by s.477(1) of the Act. In fact, Mr Williams of Counsel candidly confirmed at the hearing that the Applicant received the Tribunal’s decision but only commenced the present proceeding on 17 August 2016 after he had met Mr Williams, who told him that there was an argument available for judicial review.
Nevertheless, I now turn to consider the most important factor in considering whether or not to extend time, this being whether or not the Applicant has reasonable prospects of success for his proposed substantive Grounds.
Consideration of Merits of Proposed Substantive Grounds
This is one of a series of cases in which Mr Jay Williams of Counsel has appeared for applicants who have raised arguments and issues concerning s.116 of the Commonwealth Constitution. That series of cases has now been ended by the decision of Gageler J on 9 September 2016 in Plaintiff S178a/2016 v Minister for Immigration & Border Protection & Anor [2016] HCATrans 219 in which his Honour refused an extension of time sought under s.486A(2) of the Act for an application to be made to the High Court of Australia under s.486A(1). His Honour was there considering the first three of the nine Grounds relied on by the Applicant in this proceeding. His Honour said of these grounds at page 19 as follows:
By application to show cause filed in the original jurisdiction of this Court on 8 July 2016, the plaintiffs seek judicial review of the Tribunal’s decision. The plaintiffs advance three grounds in their application to show cause. Two grounds rely on section 116 of the Constitution. First, the plaintiffs argue that the Tribunal violated section 116 by imposing religious observance on them; secondly, they argue that the Tribunal violated that section by prohibiting their free exercise of religion; thirdly, and independently of section 116, they argue that the Tribunal violated their right to “free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia”.
His Honour did not regard the grounds as arguable. His Honour found that s.116 of the Constitution had not been infringed and that the Parliament of the Commonwealth had made no law which had the purpose or the effect of imposing any religious observance or prohibiting the free exercise of any religion. His Honour at page 20 said as follows:
One of the grounds on which a person might claim to be a refugee is a well-founded fear of persecution on account of that person’s religion. That does not have the result that section 116 of the Constitution disentitles the Minister, the delegate or the Tribunal from examining the genuineness of that person’s claimed religious belief.
In the present case, counsel for the plaintiffs points to a number of questions examined in the lengthy reasons for decision of the Tribunal. They are particularised in ground 1 of the application for an order to show cause. I cannot regard those questions, their asking, their examination or their consideration by the Tribunal as amounting individually or cumulatively to the imposition by the Tribunal of a religious test or to the prohibition by the Tribunal of the free exercise by the plaintiffs of their religion.
All that the Tribunal did here was to discharge the statutory duty imposed on it by the Act to review the delegate’s decision. The Tribunal had a fact-finding function and was required, in the discharge of that fact-finding function, to test the claim which the plaintiffs had themselves made. The genuineness of the beliefs that they professed was a question relevantly within its statutory remit and not denied to it by the operation of section 116 of the Constitution. It is impossible to characterise the Tribunal’s actions as anything other than engaging in a review on the merits of the delegate’s decision. It is impossible to characterise the Tribunal’s actions as imposing any religious observance, as prohibiting the exercise of religion or as violating any right to free exercise of thought, conscience, religion or belief.
As to the customary international law claim, counsel for the plaintiffs has not demonstrated how the mere testing of a factual assertion to fear persecution on a Convention ground can violate the customary international law norm to which he points. Nor has he presented an arguable case as to how that international law norm might condition the exercise by the Tribunal of its statutory function.
In the result, I am not satisfied that there is an arguable case for any of the grounds in support of the application for an order to show cause.
I note that in Plaintiff S243A/2016 v Minister for Immigration & Border Protection & Anor [2017] HCASL 56 Justices Bell and Nettle in the High Court refused leave to appeal from the decision of Gageler J on the basis that there was no reason to doubt the correctness of his decision.
Proposed Grounds 1, 2, 3 and 7
Proposed Grounds 1 and 2 do not have reasonable prospects of success for the same reasons they failed before Gageler J. The Tribunal did not act in violation of s.116 of the Constitution either by imposing religious observance on the Applicant or violating his free exercise of religion.
Proposed Ground 3 does not have reasonable prospects of success because the Tribunal did not violate the Applicant’s right to the free exercise of religion or belief. Ground 7 also has no reasonable prospects of success. Whilst the Tribunal cannot act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, there was no impediment to the Tribunal testing and evaluating the Applicant’s claim to be a Christian convert. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:
[24]The manner in which the Refugee Review Tribunal set out to test the Applicant’s claim to be a Christian was a function entrusted to it. There was no impediment to the Tribunal testing the claim being advanced. An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church. The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief. In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.
For a general discussion of this area of the law, see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at 372 – 376 [30] – [42] per Kenny J.
In this case the Tribunal at [26] – [27] of its Decision Record recorded its questioning of the Applicant about various aspects of the Christian religion and at [31] it recorded questioning him about the Bible and why people should be attracted to it. Nothing in those paragraphs has any tendency to indicate that the Tribunal set itself up as an “arbiter of doctrine” and in rejecting the Applicant’s claims to be a genuine Christian the Tribunal did not in fact rely on any perceived ignorance of the Applicant of the teachings and tenets of the Christian religion.
Accordingly, proposed Grounds 3 and 7 do not have reasonable prospects of success.
Proposed Grounds 4 and 9
Both of proposed Grounds 4 and 9 have no reasonable prospects of success. They attack the Tribunal’s findings concerning the Applicant’s claimed conversion to Christianity. I note that Ground 4 speaks of the conversion of the Applicant from Shia Muslim to Christianity. However it was the Applicant’s case that he had first converted from Shia Muslim to Sunni Muslim and then to Christianity.
It was fundamental to the Applicant’s claims that he feared harm from the authorities in Iran because of his conversion to Christianity. The Tribunal was therefore bound to consider that claim in relation to persecution under the Refugees Convention based on his assertion of conversion to the Christian religion and whether or not, if the Applicant were to return to Iran, he would face a real risk of significant harm under the complementary protection criterion.
Further, the Tribunal was bound to take into account the possible application of s.91R(3) of the Act.
Finally, adverse credibility findings in relation to his claim of conversion to Christianity might impact on his general credibility in relation to any of his other claims to protection and vice versa.
In these circumstances the Tribunal was legitimately entitled to consider the genuineness of the Applicant’s claimed conversion to Christianity. The result of that consideration led to the Tribunal expressing its findings in the following paragraphs of its Decision Record:
[69] Because I do not accept that the applicant is a genuine Christian I do not accept that he has told anyone in Iran that he has converted. I also do not accept that he would be perceived to be an apostate or feel the need to attend church or to preach or conduct other evangelical activity on return to Iran as part of his faith practice.
[70] While I accept that the applicant believes in no religion, I am not satisfied that this has, or will cause him to come to the attention of the Iranian authorities. He has made no direct claim in this regard, and country information supports the finding that Iranian authorities do not normally interfere in the private religious lives of their citizens.
[76]Although I have disregarded the applicant’s church attendance, baptism and evangelising for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). I do not accept that the applicant has any interest in Christianity or has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in Christianity through his church attendance, religious education, baptism or evangelising, or that he has or will come to the attention of the authorities for not believing in any religion.
In my view proposed Grounds 4 and 9 have no reasonable prospects of success in establishing jurisdictional error.
Proposed Grounds 5, 6 and 8
Ground 5 asserts that there was an insufficient logical or evidentiary basis for the Tribunal finding that the Applicant was not a “genuine” Christian.
Ground 6, in effect, asserts that there was an insufficient rational basis for the Tribunal concluding that the Applicant was ignorant of fundamental elements of the Christian religion.
Ground 8 asserts that there was an insufficient logical or evidentiary basis for the Tribunal finding that the Applicant’s practice of Christianity in Australia was for the sole purpose of strengthening his refugee claims and therefore applying s.91R(3) of the Act.
In my view proposed Ground 6 has no reasonable prospects of success because, as noted at [30] above, the Tribunal did not base or ground its finding that the Applicant was not a genuine Christian upon any perceived lack of knowledge or familiarity with the central tenets or elements of the Christian religion.
Finally, I do not consider that proposed Grounds 5 and 8 have reasonable prospects of establishing jurisdictional error. The Tribunal at [48] of its Decision Record stated its general finding that the Applicant’s evidence lacked credibility and that he was not a reliable, credible or truthful witness, and that he had fabricated his entire claim in order to be granted a Protection visa. It stated that it came to this view because of significant inconsistencies in the Applicant’s claims and it then went on to set them out. Those inconsistencies included:
a)The Applicant initially informing the Tribunal at the hearing that there were no photos or evidence of his engagement in May 2012 because all photos and evidence had been destroyed as the engagement was supposed to be secret. However, after the hearing without explanation the Applicant provided a photo and a very short video of the engagement: see [51] – [52] of the Decision Record.
b)There were other inconsistencies in the Applicant’s evidence relating to his engagement: see [53] of the Decision Record.
c)There were inconsistencies in his claims of having been forcibly taken by the authorities a few days after his engagement and in his account of events after his claimed release from detention: see [55] – [57] of the Decision Record.
In relation to his claimed conversion to Christianity, the Tribunal took into account the following in coming to its view that the Applicant was not a genuine Christian:
a)The Applicant had claimed to have converted from Shia to Sunni in April 2012 and then to have converted to Christianity in November 2012 and this indicated to the Tribunal a willingness to undertake a conversion where there were material advantages for him to do so.
b)The Applicant had only commenced handing out Christian religious fliers in Parramatta five weeks prior to the Tribunal hearing, notwithstanding that he had claimed to have gone to Church every Sunday since February 2013 and to have been baptised on 14 April 2013 at the Liberty Baptist Church.
c)It took into account but gave little weight to Pastor Piper’s evidence that the Applicant had rejected Islam and embraced Christianity for the reasons given at [63] – [66] of the Decision Record, including its finding that Pastor Piper had a particular anti-Muslim ideology which inclined him to accept at face value claims by Iranian asylum seekers to have been converted to Christianity.
In my view the Tribunal’s findings in relation to the Applicant not being a genuine Christian were legally reasonably open to it. On the evidence it is possible that a different and more favourable view might have been taken of the Applicant in this regard. Nevertheless, the findings here are not infected with “illogicality” or “irrationality” sufficient to give rise to jurisdictional error in the sense that no rational or logical decision maker could have arrived at them in the circumstances. As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131]:
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the 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.
Conclusion
I do not consider that the proposed Grounds asserted by the Applicant are reasonably arguable or have reasonable prospects of success and in all the circumstances I consider that it is not in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made and accordingly the application for extension of time made by the Applicant pursuant to s.477(2) is refused.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 20 December 2017
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