DVG16 v Minister for Immigration and Border Protection
[2018] FCCA 1461
•8 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVG16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1461 |
| Catchwords: MIGRATION – Protection visa – apostasy – alleged conversion to christianity – decision of IAA said to have been illogical or irrational – IAA’s finding that applicant’s alleged conversion to christianity was intended to strengthen his protection claim valid – IAA’s failure to address the apostasy claim – error – constitutional writs issued. |
| Legislation: Migration Act 1958, ss.5J(6), 46A |
| Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 |
| Applicant: | DVG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2710 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 21 March 2018 |
| Date of Last Submission: | 21 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the First Respondent: | Mr G Hill |
| Solicitors for the First Respondent: | Mills Oakley |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Mills Oakley |
ORDERS
The applicant has leave to file and serve a further amended application in the form filed on 8 March 2018.
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 8 November 2016 (with IAA reference IAA16/00977).
A writ in the nature of prohibition issue directed to the first respondent restraining him by himself, his servants, agents or employees, from giving effect to the decision of the second respondent.
A writ in the nature of mandamus issue directed to the second respondent requiring it to reconsider and determine the application according to law.
The first respondent pay the applicant’s costs of this proceeding fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2710 of 2016
| DVG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 13 December 2016, when the applicant filed his application to commence this proceeding, he relied on eight grounds to support his application for judicial review. None of those eight grounds was supported by particulars. It was not possible to tell from any of the grounds the facts or propositions of law on which the applicant relied to make out his claim to jurisdictional error in this application for judicial review of the decision of the Immigration Assessment Authority (“IAA”) made on 8 November 2016. By that decision, the IAA affirmed the delegate’s fast track decision made on 22 September 2016 pursuant to which the applicant’s protection visa application was refused.
By orders made on 7 June 2017, a registrar of this court fixed this proceeding for a show cause hearing on 13 November 2017 before me. Pursuant to those orders of the registrar, the applicant was required to file and serve any amended application 28 days prior the show cause hearing. On 17 October 2017 the applicant filed an amended application replacing the eight previous grounds with two, the mainstay of which was an assault on the IAA’s decision concerning the applicant’s association with christianity. Having amended the application in that manner, the following day (18 October 2017) I made orders by consent vacating the fixture for the show cause hearing and providing for dates by which written submissions were to be filed. Importantly, those consent orders I made did not provide for further amendment to the applicant’s grounds.
On 18 October 2017 I listed this proceeding for hearing before me on 21 March 2018.
On 8 March 2018, that is to say, a little over two weeks ahead of the fixed hearing date of 21 March 2018, the applicant filed a draft further amended application. He had not earlier obtained leave of the court or consent from the minister to file such a further amended application. In it the applicant sought to introduce a third ground of his application for judicial review.
When this case came on for hearing on 21 March 2018, Dr McBeth of counsel for the applicant brought the draft further amended application to my attention. Dr McBeth invited me to receive an affidavit affirmed by his instructing solicitor, Ms Catherine Farrell, to which she exhibited a country information report dated 21 April 2017 from the Department of Foreign Affairs and Trade on Iran, one segment of which addressed apostasy. Dr McBeth invited me to conclude that the report exhibited to Ms Farrell’s affidavit bore upon the proposed new ground 3.
On behalf the minister, Mr Hill of counsel offered a very pragmatic approach. He submitted I could either hear argument for the purpose of deciding whether to grant leave or I could hear argument on all matters holding over my determination on the grant of leave until after assessing the merits of the proposed new ground. Mr Hill argued that no explanation had been offered about why the proposed third ground had not been raised any earlier than it had.
Adopting the latter strategy, I heard the whole case including argument on all three grounds.
Synopsis
For the reasons that follow, in my judgment constitutional writs should be issued in respect of the third ground only.
Factual recital
On 16 August 2013 the applicant arrived in Australia as an unauthorised maritime arrival. He is a citizen of Iran. On 19 September 2013 and 26 November 2014 departmental officers interviewed the applicant. On 29 January 2016 the minister exercised the power under s.46A of the Migration Act (“Act”) by permitting the applicant to apply for a protection visa, which the applicant did by application lodged on 25 February 2016. In support of that application the applicant made a statutory declaration on 24 February 2016 recording his claims. That statutory declaration was written with meticulous attention to detail. It was grammatically well composed as well, except that in paragraph 29 the word “them” should have read “whom”. Two main issues emerged from that statutory declaration, according to Mr Hill of counsel for the minister. The first was the assertion in paragraph 26 that the applicant feared being arrested, tortured and imprisoned upon his return to Iran by reason of false accusations that had been made against him of his having raped his former lover. The second was the absence of any reference to the applicant fearing persecution on the basis of his religious beliefs. That said, Mr Hill correctly pointed out that the applicant had provided a baptism certificate dated 8 February 2015 and that the applicant stated he was a christian in his application for temporary protection.[1]
[1] Court book filed on 10 April 2017 at 134
The minister’s delegate refused to grant the applicant the protection visa the applicant sought. In the final bullet point under part three of the delegate’s reasons[2] was the following –
[2] Ibid 141
the applicant’s claims for protection (including those raised after the application was lodged) are summarised below:
…
·the applicant converted to Christianity after his arrival in Australia, and fears being executed as an apostate.
In reaching conclusions about the applicant’s protection application the delegate made several key findings of fact. Relevantly paraphrased they were as follows –
a)the delegate found that in Iran the applicant was not particularly religious, and did not go to mosque;[3]
b)the applicant was unaware that “Anglican” refers to the protestant denomination rather than to a particular church building,[4] he did not understand when the delegate asked if the church that the applicant was currently attending was catholic,[5] the delegate found that it caused particular concern that the applicant was unaware of any denominational differences in protestantism, the delegate placed little weight on the baptism because it required no preparation and did not lead to any lasting connection between the applicant and the Anglican Church;[6] and
c)the delegate found that the applicant’s conversion to christianity was insincere and was engaged in primarily to enhance his application for a protection visa, did not accept that the applicant will continue to practice christianity if he were to return to Iran and found that there was only a remote chance that his attendance at two churches in Australia would come to the attention of the Iranian authorities.[7]
[3] Ibid 143
[4] Ibid
[5] Ibid
[6] Ibid 144
[7] Ibid
As mentioned above, the delegate decided not to grant the applicant the protection visa he sought.
Being dissatisfied with the decision of the delegate, the applicant applied to the IAA for a review of the delegate’s decision. On 27 October 2016 the applicant’s representative, a migration agent, provided a four-page submission to the IAA. Relevantly distilled, the following matters emerged from that submission –
a)the applicant’s uncertainty about the education level of the woman he allegedly raped was reasonable having regard to the differences in the Iranian education system and the Australian education system;
b)the applicant’s information to the delegate was reasonable when the applicant stated he feared informing Australian authorities about an exemption from military service by reason of mental health issues;
c)the delegate’s conclusion was unreasonable when the delegate concluded that it was unlikely that the alleged rape victim’s family could make a formal complaint of rape, have a warrant issued and have the Basij search the applicant’s house within a matter of hours;
d)the delegate was not familiar with Iranian culture and the sensitivities of being in a sexual relationship before marriage, that it was a known fact among conservative families in Iran that virginity and not having sex before marriage is very important and that a girl who was found to have been raped will most likely lose her chance for marriage;
e)the applicant converted to christianity after he arrived in Australia, guilt being his motivation for conversion; and
f)the applicant had been a regular attendee at a church in the western suburbs, later at a church in St Kilda, that he introduced himself as a christian to the community and his friends, that the applicant should have been assessed taking into account that he was a new convert and that it was not reasonable to expect the applicant to have been aware of philosophical or spiritual differences between different denominations.
The IAA’s decision
As mentioned earlier, the IAA affirmed the delegate’s decision. The IAA devoted 32 paragraphs of reasoning over nine pages to its decision-making processes. The more important passages, relevantly distilled, were as follows –
a)the IAA accepted the applicant’s progression of religious involvement, namely that he attended christian church meetings in detention because he had nothing to do, continued attending meetings, obtained a bible and attended church, and was baptised in February 2015;[8]
b)the IAA stated that at the time of the interview with the delegate in April 2016 the applicant claimed to have been attending the Cloud Church in Sunshine for a few months. He said that before that he had been practising in his house. The applicant was unable to identify the church where he was baptised as anglican. However, he claimed that he was new to christianity and did not know that there were different subclasses other than catholic and protestant, and he would do some research. The IAA stated that, from the applicant’s description of the baptism process, he appeared to have had very little preparation other than a discussion of the reasons why he wanted baptism;[9]
c)the IAA set out the effect of a letter from Reverend Marr[10] who stated that the applicant began attending church recently. The IAA accepted that the applicant had been attending the church, but found “that this letter otherwise provides very little evidence of the sincerity and nature of the applicant’s beliefs and commitment”.[11]
d)the applicant’s own evidence was that he went to the Cloud Church in Sunshine every one to three weeks, he claimed he tried to read the bible at night, he could not name the pastor of that church, he attended at least three churches with very little indication of any exploration or awareness of the differences between them;
e)although the applicant was a relatively recent convert, the delegate’s interview took place more than a year after his baptism, the IAA accepted the submission (from the applicant’s representative) that a new convert may not be aware of spiritual or philosophical differences between different denominations but the IAA considered that the applicant did not appear to have made any sort of effort to seek out information about his new religion;
f)his claimed frequency of attendance (every one to three weeks) did not suggest a strong commitment and his inability to name the pastor of the church he claimed to have been attending for a number of months suggested he did not have a strong engagement;[12]
g)the IAA accepted that the applicant had been baptised and that he attended church in Australia. However, on the evidence the IAA was not satisfied that the applicant had a genuine commitment to or belief in the religion or its practice such that he would practice christianity. The IAA found that this was because of a lack of commitment to doing so, rather than any fear of persecution. The IAA was not satisfied that there was a real chance of the applicant being harmed in Iran for reasons of his religion;[13]
h)the IAA found that the applicant’s religious conduct in Australia had been, at least in part, intended to strengthen his claims for protection. However, the IAA accepted that the applicant initially attended religious meetings for something to do and that he may have found some aspects of christianity interesting. The IAA found that the applicant had engaged in religious conduct in Australia other than for the sole purpose of strengthening his claim to be a refugee, and the IAA did not disregard it under s.5J(6) of the Act;[14]
i)there was no evidence before the IAA to suggest that the applicant’s religious activities had or may come to the attention of any person in Iran. The IAA was not satisfied that there was a real chance of the applicant facing harm in Iran in relation to his religious activities in Australia;[15] and
j)the IAA applied those findings to the assessment of complementary protection. The IAA did not accept that the applicant had a genuine commitment to and belief in the christian religion and found that he will not practice christianity on return to Iran because of a lack of commitment to doing so. The information before the IAA did not suggest that his religious activity was known or may become known in Iran. The IAA was not satisfied that there was a real risk of the applicant being harmed in relation to his religious activity in Australia or claimed conversion to christianity.[16]
[8] Ibid 192 [18]
[9] Ibid 193 [19]
[10] Ibid 179
[11] Ibid 193 [20]
[12] Ibid [21]
[13] Ibid
[14] Ibid 193 [22]
[15] Ibid [20], [22]
[16] Ibid 195 at [31]
In this court
On 13 December 2016 the applicant applied to this court for judicial review of the IAA’s decision. As has been mentioned already, his grounds have radically altered since this proceeding commenced. It is useful to take separately each ground of the most revised version of the application for judicial review. Only ground 3 of the proposed further amended application was the subject of debate in terms of whether it was properly before me.
Ground 1
This ground was in the following terms –
The decision of the IAA was affected by jurisdictional error in that the IAA’s finding that the applicant did not have a genuine commitment to Christianity and would not practise Christianity on return to Iran was irrational, in that it contradicts and cannot be reconciled with other findings by the IAA.
The applicant did not specify in either the amended application (pursuant to which ground 1 in its current form appeared) or in the draft further amended application the IAA findings that the applicant did not have a genuine commitment to christianity and would not practise christianity upon return to Iran. But the applicant asserted that such a finding by the IAA was irrational.
Dr McBeth’s written submissions developed the point. He contended that the IAA’s findings at paragraph 21 of its reasons that the applicant did not have a genuine commitment to a belief in christianity was irrational having regard to certain other IAA findings. Those other findings were that –
a)in February 2015 in Palmerston the applicant had been baptised as a christian in an anglican church;[17]
b)his baptism was the combination of his progression of religious involvement;[18]
c)the applicant had been attending the Elsternwick baptist church at the time of the IAA’s decision and in the period leading up to that decision;[19] and
d)the applicant’s frequency of attendance at his previous church had been at intervals of every one, two or three weeks.[20]
[17] Ibid 192 at [18]
[18] Ibid
[19] Ibid 193 at [20]
[20] Ibid at [21]
Dr McBeth addressed the tribunal’s reasoning in support of its findings that the applicant’s commitment to and belief in christianity were not genuine. He cited the IAA’s findings –
a)that the applicant had difficulty differentiating between different protestant denominations;[21] and
b)the applicant was unable to name the pastor at the applicant’s previous church.[22]
[21] Ibid at [19]
[22] Ibid at [21]
In respect of both matters mentioned in paragraph 19 above, Dr McBeth contended they did not support a conclusion that the applicant’s conversion to christianity was anything but genuine. Drawing on the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS,[23] Dr McBeth argued that, in relation to such a conclusion, no logical connection existed between the evidence and the inferences or conclusions drawn by the IAA.
[23] (2010) 240 CLR 611 (at [135])
I do not agree. In my view the conclusion reached on point was open. Let me explain.
In SZMDS, Crennan and Bell JJ recognised that a decision will not be illogical or irrational where probative evidence can give rise to different processes of reasoning and where logical or reasonable minds might differ in respect of the conclusions to be drawn from that evidence. The Full Court of the Federal Court of Australia restated the proposition in ARG15 v Minister for Immigration and Border Protection.[24] Further, at single judge level it has been held in such cases as SZLUD v Minister for Immigration and Citizenship[25] and SZMOB v Minister for Immigration and Citizenship[26] that a ground of review based on illogicality or irrationality attracts a high threshold. Further, in the Full Court decisions of ARG15[27] and Gill v Minister for Immigration and Border Protection[28] it was held that the irrational or illogical ground of review requires extreme irrationality or extreme illogicality.
[24] (2016) 250 FCR 109 (at [44])
[25] [2009] FCA 549
[26] [2009] FCA 140
[27] Op cit
[28] [2017] FCAFC 51 (at [62])
In my view the IAA’s decision that the applicant’s conversion to christianity was not genuine was not in the realm of extreme illogicality or extreme irrationality. To the contrary, such a conclusion was open based on the matters the IAA stated. Those included –
a)the applicant had difficulty differentiating between protestant denominations; and
b)the applicant was unable to name the pastor of his former church.
The IAA set out factors that both favoured the finding that the applicant had a genuine commitment to christianity and factors that tended against that finding.
The IAA accepted the applicant’s description of his “progression of religious involvement” (attending church meetings while in detention, obtaining a bible and attending church) and it accepted that the applicant had been baptised.[29]
[29] Court book 192 [18]
The IAA summarised the effect of the applicant’s evidence in the interview before the delegate[30] and summarised the effect of the letter of support from Reverend Marr.[31] The IAA accepted that the applicant has been attending Reverend Marr’s church but found that the letter “otherwise provided very little evidence of the sincerity and nature of the applicant’s religious beliefs and commitment”.[32]
[30] Ibid 193 [19]
[31] Ibid [20]
[32] Ibid
The IAA said the applicant had attended at least three churches with very little indication of any exploration or awareness of the differences between them. On the one hand, the IAA accepted that the applicant was a relatively recent convert and a new convert may not have been aware of spiritual or philosophical difference between different denominations. On the other hand, the delegate’s interview took place over a year after the applicant’s baptism so the applicant did not appear to have made any sort of effort to seek out information about his new religion.
The IAA said the applicant’s claimed frequency of attendance every one to three weeks did not suggest a strong commitment. The applicant’s inability to name the pastor of the Cloud Church in Sunshine that he claimed he had been attending for a number of months suggested he did not have a strong engagement.
The IAA found that the applicant’s religious activities were intended at least in part to strengthen his claims for protection, although those activities were not engaged in solely for that purpose.[33]
[33] Ibid [22]
As against that, the applicant contended that the IAA engaged in illogical and irrational reasoning by concluding that the applicant’s conversion to christianity was not genuine having regard to his baptism and his frequent attendances at church.
The minister said that it did not follow that the IAA’s conclusions were irrational or illogical merely by reason of the fact that the applicant had difficulty differentiating between protestant denominations and the applicant was unable to recall the name of this pastor. As Crennan and Bell JJ put the point in SZMDS, a decision will not be illogical or irrational 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.[34]
[34] (2010) 240 CLR at 648 [131]
In my view there was considerable merit in the minister’s contentions that the applicant’s arguments in relation to ground 1 amounted to his strong disagreement with the merits of the IAA’s decision. It seemed to me that the IAA identified the correct issue. It then assessed whether the applicant was genuine in his asserted conversion. The IAA said the asserted conversion was not genuine. That conclusion was open. It was not in the realm of extreme illogicality or extreme irrationality for the IAA to so conclude.
In my view ground 1 failed.
Ground 2
Under this ground Dr McBeth contended that the IAA had set itself up as the arbiter of doctrine when assessing the applicant’s religious beliefs, contrary to the observations of Gray J in Wang v Minister for Immigration and Multicultural Affairs.[35] Drawing on the observations of the Full Court of the Federal Court of Australia in WALT v Minister for Immigration and Multiculturaland Indigenous Affairs,[36] Dr McBeth contended that degrees of understanding and commitment of those practising any particular faith will vary and that it may be erroneous to ascribe to all who are or who claim to be adherents to a particular religion a required minimum standard or a required and consistent minimum standard of its tenets. In reliance upon the discussion on point by Kenny J in Minister for Immigration and Citizenship v SZLSP,[37] Dr McBeth argued that –
there must be a basis for concluding that the particular elements of [the] doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know” if the decision maker is to avoid jurisdictional error.[38]
[35] (2000) 105 FCR 548 (at [16])
[36] [2007] FCAFC 2
[37] (2010) 187 FCR 362 (at [39])
[38] Applicant’s submissions filed on 8 March 2018 at [25]
In BSD16 v Minister for Immigration and Border Protection[39] I essayed in quite some detail the authorities as they then stood on any consideration of the genuineness of an applicant’s conversion from one religion to another. My review of those authorities involved a consideration of all the authorities on which counsel for the minister relied in this case as well as all the authorities on which counsel for the applicant relied in this case. In paragraph 68 of BSD16 I drew together the threads in the learning in the following terms –
[39] [2018] FCCA 142
Having essayed the more important concepts that the decided cases since 2006 have revealed, it is possible to catalogue them in the manner set out hereunder. They are –
a.for the purposes of applying article 1A of the Convention as implemented in s.36 of the Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as the visa applicant claims (MZZJO at [47]);
b.in protection claims based on religion, the issue for the Tribunal is whether the applicant for protection has a well-founded fear of persecution by reason of his or her religion if that person were to return to the country from which he or she has fled and the visa applicant’s religious beliefs and practices up to the time of the Tribunal’s decisions are relevant (WALT at [31]);
c.so long as the Tribunal acts consistently the requirements of procedural fairness, the Tribunal may inform itself as it thinks fit; [SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231]
d.if the Tribunal is fairly and justly to discharge its important functions under the Act, it is critical that it is sensitive to the cultural, social and religious differences that exist in so many of the societies with which its cases are concerned and it is equally critical that it does not arrive at or state findings of fact on such issues with greater confidence than the circumstances of the particular case warrants (Mashayekhi);
e.where a person makes a claim to being an adherent of a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim (SBCC at [46] to [49]);
f.if a Tribunal ultimately finds that a visa applicant’s lack of particular knowledge is a reason to reject his or her claim, that finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge (SZLSP at [37]);
g.highly specific questioning by the Tribunal will not sustain a conclusion of jurisdictional error by reason of reasonable apprehension of bias, even if those questions take on the appearance of an examination, because the critical issue is the use to which the answer may be put; [SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109]
h.the question of what knowledge can be expected of a person is a sensitive and difficult one (SZOCT at [40]);
i.where a Tribunal rejects an applicant’s claims based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might reasonably be expected to know (SZLSP at [39]);
j.where a visa applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as claimed (SZLSP at [39]);
k.where the Tribunal’s material and the applicant’s answers differ in manner of expression, emphasis or in detail, the perceived variations must be such that there is a logical connection between those variations and the conclusions that the applicant is not an adherent to the religion (SZLSP at [39]);
l.depending on the facts of the particular case, trivial variations or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent (SZLSP at [39]);
m.in such circumstances, jurisdictional error is a possibility (SZLSP at [39]); and
n.where the Tribunal’s determination regarding the state of satisfaction turns on its evaluation of an applicant’s knowledge of a religion and that evaluation is illogical in the relevant sense, the jurisdictional foundation for the Tribunal’s decision will be absent. [Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611]
Dr McBeth said at paragraph 30 of his written submissions that the IAA fell into jurisdictional error in the sense espoused in Minister for Immigration and Multicultural Affairs v Yusuf[40] because it asked itself a wrong question. Specifically, Dr McBeth submitted –
Instead of enquiring whether the applicant was a genuine adherent of Christianity, such that he may fear persecution in Iran on the basis of his religion, the IAA set an arbitrary threshold of church attendance and organisational familiarity that the IAA thought the applicant should meet. In doing so, the IAA fell into jurisdictional error.
[40] (2001) 206 CLR 323
Mr Hill submitted that a tribunal does not impermissibly become an arbiter merely by questioning a person about the person’s belief on matters which that particular religion teaches. In support of that proposition he relied on the observations of the Full Court in WALT,[41] SZLSP[42] and SBCC v Minister for Immigration and Multicultural Affairs.[43] He said the applicant’s claim of religious belief was not immune from scrutiny by the IAA, relying on the decision in MZZJO v Minister for Immigration and Border Protection [44] and ABX15 v Minister for Immigration and Border Protection.[45] Without in any way wishing to undermine the legitimacy and accuracy of those propositions, as advanced by Mr Hill, they state the more uncontroversial aspects of the learning in this field. But Mr Hill’s submissions descended to a significantly more sophisticated level. Citing Kenny J’s observations in SZLSP [46] and the Full Court’s observations in WALT, [47] Mr Hill submitted –
There is a difference between (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he or she is not a genuine adherent of a religion.[48]
[41] (at [29])
[42] (at [38])
[43] [2006] FCAFC 129 (at [45])
[44] (2014) 239 FCR 436 (at [47]) (per curiam)
[45] [2016] FCA 855 (at [26]) (Flick J)
[46] (at [37])
[47] (at [30])
[48] First respondent’s outline of submissions filed on 14 March 2018 at 7 [19.1]
Then, citing other observations of Kenny J in SZLSP,[49] the observations of Mortimer J in MZZAS v Minister for Immigration, Multicultural Affairs and Citizenship[50] and the observations of Jacobson J in Minister for Immigration and Citizenship v SZOCT,[51] Mr Hill submitted
The reliance on other factors in the IAA’s reasons will typically be a strong indicator that the IAA conducted a legitimate exploration, rather than made a determination by reference to a preconceived minimum standard of knowledge.[52]
[49] [2016] FCA 855 (at 38)
[50] [2013] FCA 757 (at 21)
[51] (2010) 189 FCR 577
[52] First respondent’s outline of submissions at 7 [19.2]
Mr Hill also argued that if the IAA rejected an applicant’s claims based on perceived deficiencies in the applicant’s knowledge of religious doctrine there must be a basis for concluding that the particular elements of the doctrine in question were elements that adherents in the applicant’s position might be reasonably expected to know, although this basis need not always be expressly articulated in the IAA’s reasons. The passages at paragraphs 39 and 42 of the observations of Kenny J in SZLSP supported those propositions, he contended.
Mr Hill pointed to the IAA’s consideration of the evidence of the applicant’s conversion. Specifically, he referred to –
a)the IAA’s consideration in paragraph 21 of its reasons about the applicant’s attendance at church every one to three weeks and that such attendances did not suggest a strong commitment;
b)the IAA’s consideration at paragraph 21 of its reasons about the lack of indication of any exploration of awareness of the differences between the three churches attended by the applicant suggested he had not made any effort to seek out information about his new religion;
c)the IAA’s consideration of the efforts made by the applicant to find out about his new religion; and
d)the IAA’s specific consideration of the letter from Reverend Marr stating that the letter provided very little evidence of the sincerity and nature of the applicant’s religious beliefs and commitment.
The minister contended that the applicant was agitating material in the nature of a merits review under this ground.
I agree.
In my view the IAA did not fall into jurisdictional error under this ground. I do not agree that the IAA acted as the arbiter of the applicant’s religious beliefs. In my view, the IAA, perfectly properly, examined the extent of the applicant’s knowledge of the faith to which he asserted he had converted. The IAA was entitled explore the applicant’s knowledge or lack of knowledge on the subject of his new religion to gauge whether or not he was a genuine adherent of the religion to which he asserted he had converted. Undertaking that exploratory examination was wholly within the steps the IAA could legitimately take, as explained by Kenny J in SZLSP.[53] It was one thing for the IAA to have accepted that the applicant had been baptised and even that he attended church with a degree of frequency. But, in my view, by accepting the applicant’s evidence on those matters, the IAA was not thereby driven to the conclusion that the applicant’s conversion was genuine. The IAA was entitled to be concerned by the fact that the applicant was unable to speak of the pastor’s name at the church the applicant attended. Having regard to the seriousness of the fact of the applicant’s religious conversion involved the steps the applicant said he had undertaken, it was open to the IAA to have been surprised about the fact that the name of the person who occupied such an important role in the conversion process could have been overlooked.
[53] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (at 37)
The IAA was not acting as the arbiter of the applicant’s religious beliefs when it was assessing the applicant’s knowledge, beliefs and practices. But here, the IAA did not rest its decision solely on the applicant’s doctrinal knowledge. I agree with Mr Hill’s characterisation of the matter that the IAA did not insist that the applicant had any particular specified level of knowledge of a particular faith but rather took into account that the applicant appeared to have not made any effort to find out about his new religion. It seemed to me that such a matter went probatively and rationally to the genuineness of the applicant’s conversion.
It was open for the IAA to conclude as it did that the applicant’s religious activities were intended, at least in part, to strengthen his protection claims.
In my view, ground 2 was not made out.
Ground 3
Leave was required for the applicant to rely on ground 3.
In a nutshell, Dr McBeth contended that the IAA failed to address in any shape or form this aspect of the applicant’s claim. Mr Hill for the minister argued that no claim was made and so the IAA did not consider it.
The question then became whether Dr McBeth was correct in his contention that the claim was in fact made. No dispute arose that the IAA did not address the claim.
The proposed ground 3 was in the following terms –
The decision of the IAA was affected by jurisdictional error in that it failed to give proper, genuine and realistic consideration to the applicant’s claim that he faced a real risk of execution or other significant harm as an apostate.
Dr McBeth said two distinct claims were made in material that was before the IAA. He said the first was that the applicant faced persecution as result of his ongoing religious practise as a christian upon returning to Iran or his past religious practice as a christian in Australia. The second was a claim that the applicant would be subject to the death penalty under Iranian law for apostasy. Dr McBeth contended that the delegate identified as a distinct claim that “the applicant converted to Christianity after his arrival in Australia, and fears being executed as an apostate.”[54] Dr McBeth said that by reason of that passage of the delegate’s decision appearing in the material that went to the IAA that claim was therefore before the IAA.
[54] Court book 141
Pausing there, I gave very detailed consideration to Mr Hill’s argument in which he put the contrary proposition. Mr Hill quoted in his submissions the precise paragraph from Dr McBeth’s submissions on which Dr McBeth relied to argue that the delegate expressly stated that the “applicant converted to Christianity after his arrival in Australia, and fears being executed as an apostate.”[55] Having identified the claim in those terms, Mr Hill then submitted that Dr McBeth was incorrect in arguing that a distinct claim was required to be considered. In making that submission, Mr Hill stated that the applicant’s claimed apostasy was bound up with the claimed conversion to christianity and that the delegate did not separately consider apostasy from the applicant’s asserted conversion to christianity because any such claim was embedded in the conversion claim, with the consequence that the apostasy claim was addressed when the conversion claim was addressed.
[55] Ibid
Yet Mr Hill took me to the time-honoured authorities relevant to claims, integers of claims, claims not articulated, claims that do not arise clearly from the materials and other broader propositions. Mr Hill’s catalogue of authorities on point included NABE v Minister for Immigration & Multicultural Affairs (No.2),[56] Minister for Immigration and Citizenship v SZRMA,[57] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[58] and WALT. In ACX15 v Minister for Immigration and Border Protection[59] I reviewed those authorities and others. Importantly Mr Hill conceded that in an apostasy claim the circumstances of each case must be considered. He relied on the Full Court’s decision in WALT to make good that point.
[56] (2004) 144 FCR 1
[57] [2013] FCAFC 161
[58] (2003) 236 FCR 593
[59] (2017) 322 FLR 247
In my view, Dr McBeth’s characterisation of the IAA’s treatment of this issue was correct. I reject the minister’s contentions on point. The delegate identified the apostasy claim. That claim needed to be considered. On any of the authorities set out in paragraph 53 above, that claim called for consideration. It was not enough for the IAA to obliquely address the matter under its broader and more nebulous considerations of the applicant’s conversion. In making the apostasy claim the applicant was asserting that he feared execution. That was a very serious assertion. In asserting it the applicant was squarely invoking Australia’s protection obligations. In making that claim the applicant was entitled to expect that the IAA would squarely address it. The delegate identified the claim. The IAA was required to deal with it. The IAA failed to do so. In adopting that course the IAA fell into jurisdictional error. It failed to consider a claim properly made.
There was a good deal of merit in granting leave to the applicant to argue ground 3. I grant leave to further amend the application to incorporate ground 3 and I allow the application for judicial review on that ground. I order the issue of constitutional writs and further order the minister to pay the applicant’s costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 8 June 2018
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