CLS15 v Minister for Immigration
[2016] FCCA 2164
•31 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLS15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2164 |
| Catchwords: MIGRATION – Visa – protection visa – failure of Tribunal to make enquiries – whether finding unsupported by evidence – whether arbitrary standard of religious knowledge imposed – whether Tribunal failed to consider an essential element of claim – no jurisdictional error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 65, 91R, 91R(3), 430 & 430(1)(d) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Case Load) Act 2014 (Cth), Item 12 of Schedule 5 |
| Cases cited: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 |
| Applicant: | CLS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 435 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 10 May 2016 |
| Date of Last Submission: | 10 May 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 31 August 2016 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Counsel for the Respondents: | Ms D M Tucker |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application filed 24 November 2015 is dismissed.
The applicant do pay the first respondent’s costs to be agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 435 of 2015
| CLS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 21 October 2015 which affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant is a 28 year old Iranian citizen. He appeared unrepresented at these proceedings with the assistance of an interpreter in the Persian and English languages. Prior to hearing submissions, I adjourned briefly to enable the interpreter to read through with the applicant both the grounds of application and the Outline of Submissions filed by the first respondent. The applicant has raised four grounds as follows:
“1.The Tribunal erred by applying non-existent legislative provision in deciding whether the Applicant's conduct converting to Christianity should be disregarded (Paragraph 21, Pages 5; and Paragraph 28, Page 6 of the Decision record). The Tribunal relied on provision 91R(3) of the Migration Act 1958 (the Act) which was non-existent at the time of hearing due to amendments of the Act affected on 18 April 2015.
2.The Tribunal failed to properly investigate whether the Applicant is a genuine Christian by taking into account an irrelevant considerations and/or, alternatively, asking wrong questions, in particular:
2.1The lack of involvement of his family in his attendance at Church:
The Applicant does not involve his fiancé and her children in his attendance at Church or in speaking to them about Christianity (Paragraph 26, Page 5 of the Decision).
2.1.1 This consideration was irrelevant to the question of whether the Applicant is a genuine Christian.
2.1.2 There are plenty of dedicated Christians in Australia who do not share their faith with own family members due to particular circumstances. The lack of involvement of the Applicant's new family in his religion cannot indicate the genuineness of the Applicant's faith. The Applicant was very delicate with his new family members and tried to avoid any forceful action on his side, fearing to lose them. The Applicant believes that conversion should not be forced, but it should be a personal decision.
2.2The lack of support from church members for the Applicant at the hearing (Paragraph 23, Pages 5; and Paragraph 27, Page 6 of the Decision record).
The Tribunal .raised with the Applicant that no-one from his Church had come to support him at the hearing or to give evidence in person. The Tribunal finds this most unusual and inconsistent with the applicant's claim to be engaged with the church community (Paragraph 23, Pages 5 of the Decision).
2.2.1 This could not be generally an indication of genuine faith of the Applicant. The Applicant is not responsible for the actions of other people. Therefore, it was irrelevant consideration.
2.2.2 The Applicant was advised that it is not necessary for his witnesses to attend the hearing, because if Tribunal would decide to hear them, the Tribunal could call them and ask questions over the phone.
2.2.3 Arguably, there could be many circumstances which could prevent the Applicant's friends to come and support him during the hearing. On the other hand, the presence of the Applicant's friends (other than invited witnesses) would not affect the hearing and/or decision of the Tribunal, because they were not invited to give evidence. Therefore, it was irrelevant consideration.
The above mentioned considerations were irrelevant to genuineness of the Applicant's faith. These considerations made a wrong basis for Tribunal's finding that the Applicant is not a genuine Christian which was a central to the Applicant's claim that he is genuine Christian and there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk he will suffer significant harm as defined under s 36(2)(aa) of the Act.
3.The Tribunal failed to make finding which was supported by evidence or any other grounds. In particular, by making inference unsupported by evidence that it was implausible for the Applicant deciding to convert to Christianity after being given a Bible in Persian (Paragraph 27, Page 6 of the Decision).
3.1In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358, Mason J made reference to "the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law". It is suggested, that Mason CJ intended to assert a general proposition applicable to all fact-finding: it is an error of law to make a finding of fact that is supported by no evidence.
3.2The Tribunal failed to provide supporting evidence or any other grounds that it was implausible for the Applicant to convert so quickly. There is no single way of conversion into Christianity. Every person has own unique way to accept God. For some it could be a methodical research and discovery, for others it could be Divine intervention or just acceptance based on their feelings. Conversion of Apostle Paul, who persecuted early Christians, is a clear example of Divine intervention. This intervention changed his life from a persecutor of Christians into a fully dedicated Christian Minister in a few minutes.
4.The Tribunal failed to consider an integer of the applicants claim namely that of a member of the social group of involuntary returnee failed asylum seekers, in that:
4.1The Tribunal conflated two fundamentally different situations namely that of voluntary and involuntary failed asylum seekers and did not address specifically the claim as an involuntary returnee.
4.2The Country Information relied upon by the Tribunal dealt with voluntary returnees and, to the extent that it addressed the position of involuntary returnees it recorded only that DFAT was not aware of any studies.
4.3The Tribunal failed to make any finding concerning the claim of the applicant as an involuntary returning failed asylum seeker.”
Background
The applicant arrived in Australia as an unauthorised maritime arrival in July 2012.[1] He had left Iran on his Iranian passport travelling by air to Indonesia where he made contact with those persons who arranged for his transport to Australia.[2] He claims to have planned his journey to Australia for two and half years before departing Iran.[3] His reasons for leaving Iran were ostensibly that his lifestyle there was restricted and he had become tired of his life.[4] He claimed that his trouble with the authorities in Iran was primarily at the hands of the Basij. He says he was chased once by the Basij for failing to stop at a check point, was once abducted and beaten by them whilst waiting to meet his girlfriend, and that he generally experienced a level of harassment from the Basij. He claimed on one occasion to have been arrested, beaten and later released for taking part in a protest. His primary claim for protection is based on his conversion to Christianity since arriving in Australia.[5] He claims to be a practising Christian and regular attendee at the Harvest Church.[6] His conversion came about, he says, after he was given a copy of the Bible written in Persian and started attending Bible study classes with a Persian/Christian Pastor in Adelaide. He was baptised on 15 September 2014.[7]
[1] Court Book (‘CB’) p 176.
[2] CB pp 26-27.
[3] CB p 26.
[4] CB p 176.
[5] CB p 176.
[6] CB p 177.
[7] CB p 176.
Since that time, he claims that has been a regular attendee at the Harvest Church and has taken instructions and guidance from his Pastor, Roger Feldstein.[8] He has also become engaged to a woman, Ms Kirstie Musac, and has established a relationship with her children.[9] He claims to fear persecution on the basis of his conversion to Christianity if he were to return to Iran.
[8] CB p 177.
[9] CB p 177.
Tribunal hearing and reasons
The applicant was represented before the Tribunal by a registered migration agent. He gave oral evidence. His agent provided a detailed written submission to the Tribunal prior to the hearing.[10] That submission included a character reference from his Pastor, Roger Feldstein and his wife, a statutory declaration from his fiancé, and a statutory declaration from the applicant. By separate correspondence, the agent also provided the Tribunal with a letter of support from Mr Marty Manuel, the Senior Pastor at Harvest Church.
[10] CB p 140.
At the Tribunal hearing, Mr Feldstein gave evidence by telephone. The applicant’s fiancé attended in support of his application, but did not wish to give oral evidence.[11]
[11] CB p 177.
The Tribunal identified the claims of the applicant as being his fear of persecution as a convert to Christianity if he were to return to Iran, his fear of persecution by reason of his political opinions, and his fear of persecution on return to Iran as a failed asylum seeker.[12]
[12] CB p 177.
The Tribunal raised a number of concerns with the applicant during the course of proceedings. It expressed concern that he did not appear to share his religious life with his fiancé or his children. It put to him that the speed of his conversion to Christianity was a matter that it found difficult to accept. The Tribunal was concerned that no members from his church community had attended at the hearing to support him. There were also some aspects of the evidence which the Tribunal regarded as inconsistent. In particular, there was an inconsistency between a letter provided by one of the pastors which suggested that the applicant had become interested in Christianity whilst still in Iran, and the applicant’s own claim that his conversion came after he arrived in Australia. It found the evidence of Mr Feldstein to be unpersuasive on the question of the applicant’s conversion. It also found the applicant to be unconvincing when describing the process of his conversion. As a result of those findings, the Tribunal concluded that his conversion was not genuine and that it was something that he had done simply in order to strengthen his claims.[13] That finding was significant because it meant that the Tribunal had to disregard his conversion pursuant to the terms of s.91R(3) of the Act.
[13] CB p 179.
Noting that the applicant withdrew a claim that the authorities were still looking for him in Iran as a result of his participation in a demonstration some years before he left the country, the Tribunal considered that there was limited evidence of his having expressed political opinions whilst living in Iran. It rejected any suggestion that he was known to be “anti-regime”[14] and that the authorities had any interest in pursuing him for either his actual or imputed political opinions. On the basis of the evidence before it, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for any convention reason if he were to return to Iran in the reasonably foreseeable future.[15]
[14] CB p 179.
[15] CB p 180 at [33].
The Tribunal considered country information and concluded that whilst the applicant may be identified as a failed asylum seeker, there was not a real chance that he would be seriously harmed on his return to Iran on that basis only.[16]
[16] CB p 180.
The Tribunal also considered the question of complimentary protection obligations.[17] It considered those from the point of view of both imputed political opinion and as a failed and returned asylum seeker. It noted that as he left Iran legally, he did not face any penalties for the circumstances of his departure. Having rejected the genuineness of his conversion to Christianity, the Tribunal concluded that he would not practice that religion if he were to return to Iran, and nor would he attempt to convert other people to Christianity. It further considered the chance of authorities in Iran ever learning of his baptism in Australia as remote. For those reasons, it concluded that the complementary protection obligations were not engaged.
Submissions
[17] Section 36(2)(aa)of the Migration Act.
Applicant’s submissions
The applicant made brief oral submissions before me. With respect to ground one, he asserted that the Tribunal was in error when it relied on s.91R(3) of the Act to his detriment. He said that this was old legislation and should not have been used by the Tribunal.
With respect to ground two, he submitted that the Tribunal should have made more of his evidence than it did. He said that he believed he presented his evidence to the extent that it was available to him, and that he had done all that he could.
With respect to ground three, he submitted that religious conversion does not happen in a particular way to every person. He submitted that it could sometimes happen quickly for some people, and that the Tribunal had taken into account an irrelevant consideration when it placed weight on and doubted the speed of his conversion. He said in effect, that it was illogical and irrational that the Tribunal should accept some aspects of his evidence but not other aspects. He stated that his belief was in his heart and it was not possible for him to provide objective evidence to the Tribunal about that.
With respect to ground four, the applicant reiterated his claim to the Tribunal that infidels would be punished by death and that he would on his return be regarded as an infidel.
First respondent’s submissions
With respect to ground one, the first respondent acknowledged that s.91R was repealed by Item 12 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Case Load) Act 2014 (Cth), but correctly submitted that that amendment applies only to applications for protection visas made on or after 18 April 2015. This application was lodged on 11 December 2012 and accordingly s.91R did apply.
With respect to ground two, it submits that it will only be in rare and exceptional circumstances that a Tribunal will fall into jurisdictional error by reason of a failure of its duty to enquire. It submits that there is no general duty on the Tribunal to make enquiries and that in any event, the applicant has not identified with any specificity the types of enquiries that should have been made. It submits that the taking into account of irrelevant considerations can only be a jurisdictional error where the matter is of a type that the Tribunal is bound not to take into account. In this case, it submits the Tribunal was entitled to take into account the level of engagement that the applicant’s fiancé and children had with his practice of Christianity.
As to ground three, the first respondent submits that this is not an example of a finding that is unsupported by evidence, but rather a straight forward rejection of the applicant’s evidence as to the circumstances surrounding his conversion. It submits correctly that the Tribunal is not required to accept uncritically everything said by the applicant.[18]
[18] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [451]; see also BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 at [28]-[29].
With respect to ground four, the first respondent submits the Tribunal did not fail to consider an integer of the applicant’s claim as to whether he was a member of a social group of “involuntarily returned failed asylum seekers”. It submits that the Tribunal considered country information and that the applicant’s circumstances if he were to return were taken into account by the Tribunal. It notes that the separate subcategory of “involuntarily” returned asylum seekers was not a claim identified by the applicant at his Tribunal hearing. In any event, it noted that country information established that Iran does not accept involuntarily returnees without travel documents, but will accept involuntarily returnees with travel documents. As the applicant did not have any valid travel documents he would not be accepted by Iran.
Consideration
Ground one
This ground is misconceived and I dismiss it. Section 91R(3) of the Act provided as follows:
“(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.”
If the Tribunal concluded that the conversion to Christianity was something done for the purposes of strengthening the claim for asylum, it was required to ignore that matter for the purpose of determining the claim. The Tribunal did make that finding and applied s.91R(3).
Section 91R of the Act has now been repealed but as the first respondent has submitted, the amendment was not retrospective. The application for a protection visa was made in December 2012 at a time when s.91R was still in force. The Tribunal was correct in its approach to the legislation.
Ground two
This ground has three components:
a)The failure to enquire as to the genuine nature of the applicant’s conversion to Christianity;
b)The complaint that the Tribunal took into account irrelevant matters; and
c)The Tribunal asked itself the wrong question.
The Tribunal invited the applicant to attend at the hearing and give evidence and present arguments if he chose to. He did so, and as the first respondent has submitted, he gave evidence about his beliefs, his conversion to Christianity and was questioned about those matters by the Tribunal.[19]
[19] CB p 177 at [18]-[19].
The Tribunal had no general duty “proactively to gather opinions, assessments and evaluations in weighing material an applicant has chosen to put before it.”[20] The Tribunal had no general obligation to enquire or obtain information beyond that presented by the applicant. The potential ambit of a Tribunal’s duty to make specific enquiries was dealt with by the Minister for Immigration & Citizenship v SZIAI[21]. In that matter, the following observation was made by the Court:
“It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”[22]
[20] SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 at [32].
[21] (2009) 259 ALR 429.
[22] SZIAI op cite at [25].
The duty of the Tribunal is to review the decision of the delegate. In practice, it will be “rare or exceptional” circumstances in which jurisdictional error will result from a failure of a duty to make enquires.[23]
[23] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [77].
A significant focus of the Tribunal hearing was the claim advanced by the applicant that he had converted to Christianity, was genuinely practising that faith and had no intention of renouncing it. No separate enquiry was necessary as to those matters because the applicant, who was represented before the Tribunal, advanced his case in that regard. It was for the applicant to make his case before the Tribunal.[24] I am not satisfied that the applicant has established that there was a failure on the part of the Tribunal to make an enquiry about a critical fact, the existence of which could have been easily ascertained, such as to give rise to jurisdictional error by a constructive failure to exercise jurisdiction. No specific matter that should have been subject to a duty to enquire was identified by the applicant. I do not regard a failure on the part of the Tribunal in this case to embark on its own enquiries as to the genuineness or otherwise of the applicant’s Christian beliefs, as having been “irrational” in the relevant sense.
[24] Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.
The second aspect of ground two, is the complaint that the Tribunal took into account irrelevant considerations by placing weight on the lack of involvement that the applicant’s fiancé and her children had in his religious life, and the lack of demonstrated support at the hearing by fellow church members.
Keeping in mind that the applicant was unrepresented in these proceedings, I take the view that this particular of ground two encompasses a complaint that the Tribunal in relying on those matters, reached a conclusion that was unreasonable or seriously irrational and illogical. I will deal firstly with the question of reliance on irrelevant materials.
Jurisdictional error as a result of reliance on irrelevant material is only established where the decision-maker is bound not to rely on certain matters. In the Minister for Aboriginal Affairs v Peko-Wallsend Ltd[25], Mason J observed:
“In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.” (citations omitted)[26]
[25] (1986) 162 CLR 24.
[26] Ibid at p 40 per Mason J.
The Tribunal was not prevented by the subject-matter scope and purpose of the Act from considering these matters. Further, the matters themselves were not irrelevant to the enquiry before it.
Was it unreasonable or seriously irrational or illogical for the Tribunal to put weight on these matters? Generally speaking, questions of relevance and weight are matters for the Tribunal. In Peko-Wallsend, Mason J also had this to say:
“The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. … . … in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.” (citations omitted)[27]
[27] Ibid at pp 40-42.
I do not regard the reliance by the Tribunal on those two matters as having been unreasonable in the relevant legal sense. I do not regard it as seriously irrational or illogical for the Tribunal to have based its findings inter alia on these matters. In that regard, I refer to the following from the High Court:
“In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
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.”[28]
[28] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131].
Rational minds may have differed on the respective relevance and weight to be given to these two matters, but I am not able to find that the reliance by the Tribunal on these matters caused it to fall into jurisdictional error.
Ground three
I accept the submission of the first respondent that the finding of the Tribunal as to the implausibility of the circumstances in which the applicant claimed to have been converted to Christianity, was simply an instance of the Tribunal rejecting the evidence of the applicant and drawing an adverse inference. The wording of this ground complains about the finding that his conversion was disingenuous and contrived simply to strengthen his claim for a protection visa,[29] but refers to the entirety of paragraph 27 of the Decision Record. That paragraph reads as follows:
“In summary, the Tribunal is concerned by the following aspects of the applicant’s claims: the speed with which the applicant converted; the implausibility of him deciding to convert after being given a Bible in Persian; his lack of involving his fiancé and her children in his new found religion; and the lack of support from church members for him at the hearing. The Tribunal also found the applicant to be an unconvincing witness when describing his conversion and what his new religion meant to him.”
[29] CB p 179 at [28].
That paragraph explains the matters considered in reaching the conclusion expressed at paragraph 28 of the Decision Record. The speed of the applicant’s conversion was one matter, along with the others identified above, that lead the Tribunal to the conclusion. The applicant’s “unconvincing” evidence on the process of his conversion was another.
As I have already noted, the Tribunal was not obliged to accept the evidence of the applicant uncritically. The applicant refers in his particulars of this ground to the decision of the High Court in Australian Broadcasting Tribunal v Bond[30] and in particular, the quoted passage from the judgment of Mason CJ at page 358. This is not a case in which there was no evidence from which to draw the inference. The applicant arrived in Australia in July 2012. He was baptised on 15 September 2013. Having rejected his explanation for the conversion as implausible and the evidence of his supporting witnesses, the Tribunal drew an inference from the fact of his conversion and baptism, that he had done so in order to strengthen his claim. That was not a finding for which there was no evidence. It was a finding based on an inference drawn from the evidence the Tribunal did accept, namely the fact and time of his baptism.
[30] (1990) 170 CLR 321.
Although it was not articulated by the applicant, this ground raised the question of whether the Tribunal complied with s.430 of the Act. The following parts of that section have relevance to this ground:
“Written statement of decision
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
…”
In my view, the decision of the Tribunal was compliant with subss.(a)-(c).
With respect to subs.(d), all that is required by s.430(1)(d) is that the Tribunal “identify the evidence or other material on which it … in fact based its findings on any material questions of fact”.[31] In my view, the Decision Record discloses that it did so.
[31] Minister for Immigration and Multicultural Affairs v Li Yue (2000) 176 ALR 66 at [44].
When ground three is considered in light of the submissions made by the applicant it also amounts to a complaint that the Tribunal made a decision in this respect that was either unreasonable or illogical or irrational.
The point made by the applicant was that matters of faith are deeply personal and by their very nature, ethereal. For that reason, it was unreasonable, seriously irrational and illogical for the Tribunal to reject his evidence that he had converted not long after being given a Bible written in Persian. In effect, the applicant submitted that there is no template for a personal spiritual shift from one religion to another and the Tribunal was imposing an undisclosed and unknown arbitrary standard in rejecting his evidence.
It is not apparent to me that the Tribunal was imposing an arbitrary standard. If a Tribunal makes a determination based on a pre-conceived minimum standard of knowledge about a particular faith, it may well be imposing an arbitrary standard that is not based on probative material and logical grounds.[32] For that reason, it may fall into jurisdictional error for want of a jurisdictional foundation to make the decision it did. It is not apparent that the Tribunal took such an approach in this matter. The rejection of the applicant’s evidence as to the circumstances of his conversion must be considered in the context of other findings of fact made by the Tribunal. Whilst spiritual matters are matters that are deeply personal, the existence of a belief or otherwise is as much a matter of fact as any other matter. The Tribunal rejected the applicant’s evidence as to his conversion and in combination with the other matters referred to in paragraph 27 of the Decision Record, made the finding that his baptism and attendance at Church were solely for the purpose of strengthening his claim to be a refugee. For that reason, it disregarded it pursuant to s.91R(3) of the Act. The finding of the Tribunal that the applicant’s account of his conversion to Christianity was implausible was not irrational or illogical in the relevant sense. I am not satisfied that the finding was unreasonable in the relevant sense. This ground cannot be made out.
[32] Minister for Immigration & Citizenship v SZLSP (2010) 117 ALD 259.
Ground four
The Tribunal noted the claim with respect to being a “failed asylum seeker”. The summary of this aspect of the applicant’s claim appeared in the Decision Record as follows:
“The applicant claimed to fear persecution on return to Iran for having sought asylum in Australia. The Tribunal relies on information provided by DFAT to find there is not a real chance of an applicant being targeted for this reason:”[33]
[33] CB p 179 at [31].
It is implicit in the summary of the applicant’s claim on this matter that it was taking into account that his return to Iran, if that occurred, would be involuntary. The country information established that Iran would not accept involuntary returnees and would not issue travel documents to a person who “wishes to return involuntarily”.[34] The evidence before the Tribunal was that the applicant did not have a passport or other travel documents. As the first respondent submits, “the fundamental promise” of the applicant’s claim to fear persecution if he was involuntarily returned did not exist, at least on the evidence available to the Tribunal. The involuntariness integer was encompassed within the materials on which the Tribunal relied. The Tribunal found that the applicant’s circumstances did not support a finding that he would be subjected to harm on his return on the basis of being a failed asylum seeker. I am not able to find that the Tribunal failed to consider an integer of the applicant’s claim as asserted in this ground of application. As the first respondent submitted, where reasons are otherwise comprehensive, the inference that a Tribunal has failed to consider an issue should not be drawn too readily.[35] I am not prepared to draw that inference in this matter and I am satisfied that the issue of an involuntary return was encompassed within the materials to which the Tribunal gave consideration.
[34] CB p 179.
[35] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47].
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 31 August 2016
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