Efp19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FCCA 1508

FEDERAL CIRCUIT COURT OF AUSTRALIA
EFP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1508

File number(s): SYG 2788 of 2019

Judgment of: JUDGE DRIVER

Date of judgment: 24 August 2021

Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant not believed – whether the Tribunal failed to engage with corroborative material, made an unreasonable finding, unreasonably assessed the applicant’s religious conviction or failed to comply with ss 424A or 425 of the Migration Act 1958 (Cth) considered – jurisdictional error established in relation to the application of s 5J(6).

Legislation: Migration Act 1958 (Cth) ss 5J, 65, 424A, 424AA, 425, 501CA

Cases cited:
BHM15 v Minister for Immigration and Border Protection [2018] FCA 917

BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1

Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577

MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

Navoto v Minister for Home Affairs [2019] FCAFC 135

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638

SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589

SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113

SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495

SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

SZNKO v Minister for Immigration and Citizenship [2010] FCA 297

SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90

SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451

SZVTC v Minister for Immigration and Border Protection [2018] FCA 824

Tickner v Chapman (1995) 57 FCR 451

WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Number of paragraphs: 141

Date of hearing: 8 June 2021

Place: Sydney

Counsel for the Applicant: Ms T Baw

Solicitor for the Applicant: Kah Lawyers

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Sparke Helmore
ORDERS

SYG 2788 of 2019

BETWEEN:
EFP19

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 25 September 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.

REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 25 September 2019.[1] The Tribunal affirmed a decision of a delegate of the Minister (delegate) dated 19 October 2016 refusing the grant of a protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).[2]
[1] Court Book (CB) 353-367.
[2] CB 121-127.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran. He applicant arrived in Australia on a student visa in May 2014 to study for a postgraduate degree in engineering. A year later, on 11 May 2015, he made an application for a protection visa.[3] The applicant provided a supporting statement dated 11 May 2015 with his application.[4] He claimed to fear harm because of his conversion to Christianity while in Australia.
[3] CB 1-73. The application was dated 7 May 2015.
[4] CB 62-69.
Prior to the protection visa interview before the delegate, the applicant’s representative provided three letters of support, including from two ministers.[5] Prior to the delegate’s decision the applicant provided a further letter of support, a certificate of completion in relation to an introductory course on the Bible (and a correspondence course) and a baptismal certificate.[6]
[5] CB 92-95.
[6] CB 100-103.
Following the delegate’s decision, the applicant made an application for review to the Tribunal. By email dated 22 May 2017, the applicant’s representative provided to the Tribunal further evidence in the form of various statutory declarations from two ministers and someone who attended church with the applicant, along with a petition.[7]
[7] CB 139-152.
On 2 July 2019, the applicant’s representative provided a written submission along with a range of supporting documentation including further statutory declarations and letters of support from members of the congregation where the applicant attended church.[8]Some of this material is referred to in further detail below. The applicant’s representative subsequently provided links to further country information.[9]
[8] CB 171-260.
[9] CB 261-274.
In a letter dated 8 July 2019, the Tribunal requested further information from the applicant, including medical evidence in relation to the applicant’s treatment for depression after he arrived in 2014. Various documents, including a psychologist’s report dated 4 August 2014, were provided on the same day.[10]On 16 July 2019, the applicant’s representative provided a further series of documents relating to country information and legal authorities.[11]
[10] CB 277-294.
[11] CB 297-343.
The applicant was invited to a hearing before the Tribunal on 10 July 2019 along with his representative. Two witnesses were also present to give evidence.
The applicant’s claims
The applicant’s claim for protection rested entirely on what he asserted was a risk of harm to him in returning to Iran as a Christian convert. There was no dispute that the conversion took place in Australia.
The applicant’s claims involved two broad strands. First, the applicant gave evidence about his time in Iran, his family background (notably their religion and religious practices), his religious observance as a Muslim while living in Iran and his feelings both about Islam and his exploration of other faiths. Secondly, the applicant set out how he came to attend Christian church services, the steps he took in relation to converting to Christianity and his religious practice and observance since becoming a Christian. This included evidence about a visit to Saudi Arabia as part of a university pilgrimage to Mecca, his attendance at church, his baptism and his activities evangelising through social media.
As outlined above, the applicant provided a range of material that was said to be corroborative of the applicant’s genuine conversion to Christianity. This material included statutory declarations from various individuals commenting on their perception of the applicant’s religious belief and his actions as part of the congregation at the church the applicant attended.
The Tribunal’s reasons
The Tribunal set out its summary of the applicant’s evidence at [9]-[53] and its consideration of the claims at [54]-[85] of the decision.[12]
[12] CB 354-359; CB 359-363.
The Tribunal accepted that the applicant attended church, had been baptised and attended Christian religious studies but did not accept that this was genuine, based on the totality of the applicant’s claims and actions. The Tribunal’s reasons focused on several distinct elements:
(a)the truthfulness of the applicant’s account of his move away from Islam and his finding Christianity. It found that the applicant’s reasons for rejecting Islam were somewhat shallow, based on the applicant’s explanations and included the Tribunal’s consideration of the applicant’s trip to Mecca, the applicant’s religious observance (despite no longer believing in Islam) and his study of other religions (including his explanation for why the applicant did not visit neighbouring Christian countries). The Tribunal also considered the applicant’s evidence about the religious practices of the applicant’s parents;
(b)the Tribunal did not accept that the applicant went to church as part of a spiritual journey. It found that the applicant did not have any real interest in other religions prior to coming to Australia. It noted that the psychologist’s report (arising from the applicant seeking help for depression) did not mention the applicant’s changed spiritual circumstances. The Tribunal considered it strange that the applicant could not recall the name of the person who introduced him to Christianity and that he had not maintained some form of contact with her;
(c)the Tribunal observed that the applicant’s religious profile increased markedly after the refusal of the visa application by the delegate. This included the applicant enrolling in a part-time divinity course and his appointment to the lay ministry for his congregation. The Tribunal acknowledged that the applicant’s level of participation in the faith community is “more significant than that displayed by many other applicants” but it noted that it was required to look at the overall claim;[13]
(d)the Tribunal did not accept that the applicant’s participation in online Christian activity was done for any reason other than to build his social media profile (noting the large number of Farsi evangelical products). The Tribunal noted that s 5J(6) of the Migration Act required it to disregard the social media activity if satisfied that it was carried out for the sole purpose of strengthening the applicant’s claim to protection;
(e)the applicant’s increased activism did not arise from revelation but the need to raise the applicant’s profile. In that regard, the Tribunal found that this was part of a pattern of behaviour bearing in mind the applicant’s trip to Mecca (said by the Tribunal to have been, based on the applicant’s evidence, a “cheap trip to another country”) and his statement that he attended religious observances because it would be good for his job prospects in Iran;[14] and
(f)the Tribunal stated that it had considered the “numerous and strong references from a range of secular and religious individuals in Australia but am unable to lend them much weight”. The Tribunal noted that Christian congregations were by their nature “welcoming places” and while the references were given in good faith the people who wrote them had little knowledge of the applicant’s past, to which the Tribunal was obliged to have regard.[15] The Tribunal gave an example of this evidence at [71] of the decision.
[13] CB 362 [72].
[14] CB 362 [74].
[15] CB 361 [70].
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 29 October 2019. At the trial of this matter on 8 June 2021, I gave the applicant leave to file and rely upon an amended application annexed to written submissions filed on behalf of the applicant on 13 May 2021. There are five particularised grounds in that application as amended:
1.The Second Respondent (Tribunal) erred in respect to corroborating evidence by finding that it was “unable to lend them much weight”: D[70], in the sense that the Tribunal failed to engage in an active intellectual process and/or give real, genuine and proper consideration to the evidence of corroborating witnesses and documents.
Particulars
a.The Applicant claimed to have converted from Islam to Christianity whilst in Australia.
b.The Applicant provided corroborating evidence of his conversion, comprising of testimony from numerous witnesses, which included the following:
i.An authorisation issued by the Archbishop of the Anglican Church of Australia, Sydney diocese, allowing the applicant, as a lay assistant to perform the following duties:
1. perform pastoral duties, under the oversight of the Rector;
2. conduct services of public worship;
3. conduct funerals;
4. administer baptisms; and
5. deliver sermons.
ii.Various letters from the Nima Alizadeh, the founding pastor of Revelations Ministries Incorporation in Australia and the USA, and leader of the Iranian Church of Sydney, who states amongst other things:
1.The applicant was appointed his successor to lead the Iranian church.
2.The applicant is also a student at Sydney Missionary and Bible College to train him for full time ministry.
3.He has already trained the applicant for 3 years in the Christian faith and practices in order to lead his congregation.
iii.Various letters from Reverend Andrew Robson, a minister of St Paul’s Anglican Church with oversight of the Farsi language ministries, who has known the applicant for 5 years and worked with the applicant in his leadership position for 3 years.
iv.A letter from the Australian College of Theology stating that the applicant is enrolled in the Graduate Diploma of Divinity.
c.The Tribunal, made adverse findings about the applicant’s credibility and then effectively gave no evidentiary weight to the corroborating evidence.
d.The Tribunal’s findings against the applicant’s credit were not sufficient to bring it within the category of “rare” cases that allow the Tribunal to effectively dismiss corroborative evidence because “the well has been poisoned beyond redemption”.
e.In the circumstances, the Tribunal was required to specifically address and make particular findings in relation to the various corroborating evidence, and then to assess and weigh it in balance with all the other evidence.
2.The Tribunal’s further finding in respect to the corroborating evidence was legally unreasonable.
Particulars
a.The Tribunal found at D[70] that it could lend the corroborating evidence little weight as “Christian congregations are by their very nature welcoming places and, whilst obviously given in good faith those who wrote them have little knowledge of the applicant’s past”.
b.The Tribunal’s finding was based on an unwarranted assumption and subjective supposition about Christian congregations.
c.The Tribunal’s finding lacks any logical or probative foundation to rationally justify discounting third party witnesses.
d.The Tribunal failed to have regard to the nature, content and quality of the corroborative evidence before it effectively gave them no evidentiary weight.
3.The Tribunal erred by asking the Applicant questions that assumed an arbitrary standard of religious practice to be a genuine Christian, and/or demonstrates legal unreasonableness or irrationality or illogicality.
Particulars
a.Asking whether the Applicant was willing to “get his hands dirty, with the homeless in the Cross and the like” rather than evangelising, relies on an unwarranted assumption lacking in probative foundation, that this is a practice that adherents to Christianity are expected to do.
b.Asking why he would did not remember or know the family name of the person who introduced him to a Christian church in Australia (a friend of his sister), does not indicate that he is not a genuine adherent of the Christian religion.
c.Asking whether the Applicant could form a relationship with God without having to join a religion, lacks a questioning of the Applicant’s belief that is rationally capable of assisting the decision whether his belief is genuine or not.
4.The Tribunal erred in its conclusion that as he faked his interest in Islam while in Iran for personal gain, he was faking his conversion to Christianity in Australia to obtain a protection visa, on the following bases:
a.the Tribunal failed to engage in an active intellectual process and/or give real, genuine and proper consideration of the reply that the Applicant gave in oral evidence; and
b.        the Tribunal’s reasoning fell in to legal unreasonableness.
5.The Tribunal erred by failing to comply with s.424AA and/or s.425 of the Migration Act 1958 (Cth).
Particulars
a.The obligation under s.424AA(b)(i) is a positive obligation to ensure the Applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision.
b.The obligation under s.424AA(b)(iii) is a positive obligation to advise the Applicant that he can seek additional time to comment on or respond to the information.
c.In repeatedly asking why the Applicant was not prepared to “get his hands dirty” rather than just evangelising, the Tribunal failed:
i.to explain that it impacted on its assessment of the genuineness of    the timing of his online Christianity activity; and
ii.        to offer the Applicant additional time.
d.In asking the Applicant why there was no mention of his Church attendance in the letter from the psychologist, the Tribunal:
i.failed to explain the relevance and consequence of the omission;
ii.failed to offer the Applicant additional time to obtain the other reports from the psychologist that may include his Church attendance; and
iii.misunderstood, or inaccurately recorded the Applicant’s evidence in its decision, which is associated with the Tribunal’s failure to offer more time.
e.The Tribunal adopted an approach that lacked the critical aspects necessary to meet the requirements under ss.424AA and/or a fair opportunity to present relevant evidence and submissions under s.425 of the Migration Act.
(errors in original)
In addition to the court book filed on 10 January 2020, I received as evidence the affidavit of Oliver Konstantinidis made on 10 May 2021, to which is annexed a transcript of the hearing conducted by the Tribunal on 10 July 2019.
Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions.
CONSIDERATION
Grounds 1 and 2 – did the Tribunal fail to engage intellectually with corroborating evidence provided by the applicant or did it engage in unreasonable reasoning?
Applicant’s contentions
The law
Grounds 1 and 2 both concern the treatment of corroborative evidence by the Tribunal. The corroborating evidence which supported the genuineness of the applicant’s conversion to Christianity was significant and extensive in this case, and the findings of the Tribunal against them were critical to the outcome of the decision.
Active intellectual engagement or real, genuine and proper consideration

The Full Federal Court in Minister for Home Affairs v Omar[16] at [29] found that a decision‑maker had made a jurisdictional error by failing to consider matters raised in representations made as being a reason for revoking the visa cancellation decision under s 501CA(3) of the Migration Act. In reaching its conclusion the Full Federal Court held at [36]‑[37] that the decision-maker had an obligation to engage in an active intellectual process with significant and clearly expressed representations made by the applicant.
[16] [2019] FCAFC 188.
The Full Federal Court stated at [39] that meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm requires more than the decision-maker simply acknowledging or noting that the representations have been made. The Full Federal Court explained that the decision-maker was required to “consider” those submissions by “hav[ing] regard to what is said in the representations, to bring [its] mind to bear upon the facts stated in them and the argument or opinions put forward and to appreciate who is making them”.[17]
[17] Omar at [36(c)], quoting Tickner v Chapman (1995) 57 FCR 451.
The Full Federal Court referred to a discussion on what is meant by the obligation of a decision-maker to “consider” a matter in the judicial review context in Carrascalao v Minister for Immigration and Border Protection.[18] What is called for, in this regard, is an active intellectual engagement with matters raised on behalf of an applicant.[19] The finding in Carrascalao was applied by Griffiths J in Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2)[20] at [48]:
[o]ther authorities have indicated that, merely because a matter has been “touched upon” by a decision-maker, does not necessarily mean that it has been taken into account or considered in the relevant sense.
(citations omitted)
[18] (2017) 252 FCR 352.
[19] Carrascalao at [45]-[47].
[20] [2017] FCA 1377.
The obligation to give meaningful consideration to a representation when considering whether there is another reason a mandatory visa cancellation decision should be revoked was affirmed by the Full Federal Court in Omar at [34(i)], [39] and [40]:
[39]…Depending on the nature and content of the representations, [a decision-maker] may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.
(citation omitted)
Findings at a high level of generality may be incapable of establishing that a decision-maker has “meaningfully engaged” with a given claim to fear harm upon removal to their country of nationality.[21]
[21] GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [32(e)], [39] and [45].
Given the centrality of the representations and serious consequences if they were not accepted, if the reasons in the Tribunal’s decision did not show an active intellectual engagement with the question of how the representations were taken into account, and therefore whether they were taken into account at all, then the applicant would be left to guess what role, if any, that the representation had played in the ultimate decision.[22]
[22] Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [49]; see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] and Omar at [36].
Given the nature of the findings of a particular case, if the material had been considered, one could expect that it would be referred to, even if some of it were then rejected, or given little or no weight.[23] The failure of the Tribunal to consider the material is indicative of a failure to exercise jurisdiction.
“Poison well cases”
[23] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [52] and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [32]-[34].
There are “rare” cases where a party’s credibility has been so weakened that the Tribunal may treat what is proffered as corroborative evidence as being of no or little weight because “the well has been poisoned beyond redemption”.[24]
[24] SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23]-[24] and [27] per Finkelstein J, see also Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [36]-[38] per North and Lander JJ and [50] per Katzmann J.
However, the credibility findings in this case were well short of the required cogency to absolve the Tribunal from making specific findings in relation to the corroborating evidence.[25] In such circumstances, the Tribunal was required to consider and to make findings with regard to the corroborative evidence, and its failure to do so amounted to jurisdictional error.
[25] See, eg: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] per Lee and Moore JJ; BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 at [49]-[59] per Markovic J.
Furthermore, the Full Federal Court has responded to the “poison well case” argument by still insisting on an active intellectual engagement with the corroborating material, in BZD17 v Minister for Immigration and Border Protection[26] at [45]:
In our view, however, these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.
Unwarranted assumptions
[26] (2018) 161 ALD 441.
The Federal Court has also admonished the Tribunal for making findings underpinned by unexpressed and unwarranted assumptions not based on evidence. In SZVAP v Minister for Immigration and Border Protection[27], Flick J stated at [22]:[28]
Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it.
[27] (2015) 233 FCR 451.
[28] Citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54] per Lee and Nicholson RD. See also SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [34]-[37] per Logan J.
The Full Federal Court more recently in DAO16 v Minister for Immigration and Border Protection[29] found that unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence. Kenny, Kerr and Perry JJ found at [45]:
a consideration of the AAT’s reasons discloses that many of its findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. An example is the disbelief expressed by the AAT member… Among other objections that might be made to this line of reasoning, it is underpinned by an unwarranted assumption that if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men.
(applicant’s emphasis retained)
[29] (2018) 353 ALR 641.
The Full Federal Court in BZD17 also followed DAO16 in respect to unwarranted assumptions. Perram, Perry and O’Callaghan JJ stated at [36], “[u]nwarranted assumptions may also establish that a finding is illogical and irrational or not founded on any probative evidence”, and applying that to the facts of this case, their Honours concluded at [58]:
That unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant. In our view this was an error of the kind identified by Flick J in SZVAP at [22]: see above at [36].
Allsop CJ in SZHYH v Minister for Immigration and Border Protection (No 3)[30] also found the Tribunal’s finding on credibility erroneous due to personal assumptions unfounded by any evidence, at [46] and [48]:
Related to these matters concerned with his leaving China was the assumption made that if the appellant had been on bail the authorities would have required him to surrender his passport. There was no basis in the country information or any other material from that assumption. The Tribunal was bringing (without any apparent basis in expressed expertise, country information on material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
…
It was critical to finding that the central event of his story did not take place that it was not credible that SZHYH would be arrested two weeks after a protest. There was no foundation in logic, or experience, or material for that assumption to be made. There was no country information to support it. One cannot say, one way or the other, without some foundation, that the PSB would or would not take one week, two weeks or three weeks to arrest someone. Why, one asks, is it difficult to accept? Again this is a personal assumption made without any apparent connection with country information, material or common experience of Chinese authorities.
(applicant’s emphasis retained)
[30] [2019] FCA 589.
Also, in DAO16 the Full Federal Court took into account the Tribunal’s failure to explain why the 15 witnesses would go to such lengths to assist the applicant and give evidence in such intensely personal matters, at [43]:
the AAT at no point identifies any evidence which might explain why Mr R and 15 other witnesses might wish to assist the appellant to remain in Australia if the appellant is not in fact homosexual. … in the absence of any such evidence is irrational given among other things that the AAT accepted that the appellant may have participated in homosexual relations…
Similar to DAO16, the Full Federal Court in BZD17 took into account the Tribunal’s failure to address why the witnesses would lie in such elaborate detail, at [49]:
there is no attempt by the Tribunal to analyse Mr C’s evidence and explain why he must have lied. It appears from the Tribunal’s reasoning at [133] that the Tribunal relied upon the alleged failure by the appellant to mention his involvement in the human rights group run by Mr C, but this does not logically explain why Mr C would have lied about that involvement and his prior association with the appellant and Mr B. Nor does the Tribunal give any consideration as to why Mr C might have fabricated such an elaborate story.
(emphasis in original)
The Court in BZD17 also noted at [51]: “The Tribunal never put to Mr C that his evidence was fabricated or sought to explore why that might be the case.”
Applied to the facts
In the present case, the Tribunal is said to have erred by a two step process:
(a)first, it is said to have effectively disregarded corroborative evidence based on a personal unwarranted assumption and subjective supposition about Christian congregations; and
(b)consequently, it is said to have failed to provide a real, genuine and proper consideration to and/or engage in an intellectual process to the evidence of corroborating witnesses.
A third error by the Tribunal in the treatment of the corroborating witnesses is said to have been that it omitted to disclose in its reasons why the numerous witnesses would be willing to assist the applicant if they did not believe that he converted genuinely converted to Christianity, and/or explain how such senior officers in the Church could be so completely deceived by him for many years.
There are numerous corroborating statements of witnesses and documents that are said to fall within this scope, the more important of which are listed in the particulars of Ground 1.
At [70][31] the Tribunal states:
I have taken into account the numerous and strong references from a range of secular and religious individuals in Australia but am unable to lend them much weight. Christian congregations are by their very nature welcoming places and, whilst obviously given in good faith those who wrote them have little knowledge of the applicant’s past, to which the Tribunal is obliged to pay attention in assessing his credibility and genuineness.
[31] CB 361.
Alleged failure in the first step: The applicant contends that there is no basis in country information or any other material for the Tribunal’s assumption about Christian congregations, which is underpinned by another unwarranted assumption that due to their welcoming nature Christian congregations are not capable of discerning whether a follower is fake or real. By that unwarranted assumption the Tribunal has effectively written off wholesale the entire capacity of any Christian congregation to discern whether their parishioners are genuine or not. The applicant submits that the Tribunal was bringing (without any apparent basis in expressed expertise, or country information on material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
Alleged failure in the second step: The applicant contends that that unwarranted assumption led the Tribunal to fail to exercise its duty to review. The supporting statements and statutory declarations from witnesses are central and critical to the applicant’s claim. The applicant submits that the reasons in the Tribunal’s decision did not show an active intellectual engagement with the question of how they were taken into account, and therefore whether they were taken into account at all, so that the applicant and a reviewing Court is left to guess what role, if any, that the representation had played in the ultimate decision.
As an example, the applicant submits that the only witness that the Tribunal does refer to, Reverend Andrew Robson, also gave written evidence which the Tribunal omits to mention, and the Reverend sets out how he assessed the applicant as a Christian. He states he has known him for five years and they have known each other for three years. He states at CB 256:
I think there are three lines of thought in assessing [the applicant] as a Christian; first, external assessment and observed behaviour, second, an assessment of his spiritual journey and thirdly, time.
Reverend Robson then goes into specific detail about the activities performed by the applicant over a number of years which meet each of these criteria. A forceful remark he makes at CB 257 about the notion of falsifying the Christian faith is:
[p]erhaps it could be falsified for a short time, but I have never seen it falsified over so many years. For [the applicant] to have been engaged in fraudulent Christianity for over 5 years is simply inconceivable.
Given the detailed nature of the evidence of corroborating witnesses, their detailed and eye‑witness accounts, the applicant contends that the Tribunal was required to make specific findings of fact in respect to them in order that its important statutory decision-making process is carried out according to law, according to the authorities. The generalised finding of the Tribunal at [70][32] against all Christian congregations and the “narrow, one-sided findings” in respect to Reverend Robson are said to be incapable of establishing that a decision-maker has meaningfully engaged with the corroborating evidence.
[32] CB 361.
The applicant submits total absence of any examination of the numerous evidence of the witnesses, and finding of facts in respect to their evidence is especially unreasonable given that, among other things, the Tribunal accepted that “the level of participation of the individual in the faith community is more significant that that displayed by many other applicants claiming religious conversion”.[33]
[33] CB 362 [72].
Alleged third failure: The evidence of Reverend Robson is said to appropriately demonstrate the stark failure of the Tribunal to explain how such senior officers in the Church could be so completely deceived by the applicant for many years.
The Tribunal states at [70] that these witnesses had “little knowledge of the applicant’s past”, which seems to imply that the Tribunal had the benefit of knowing how the applicant behaved before he became a Christian. However, the applicant contends that the Tribunal blindly forgets that it has little knowledge of what the applicant has been doing since becoming Christian without the benefit of their corroborating evidence, for instance, they can provide eye-witness accounts of the applicant’s religious activities for at least the last five years to the present time.
The Tribunal never put to Reverend Robson or to Mr Dykes[34] at the hearing that his evidence was not to be believed or given little weight, and it never sought to explore how they, and the others in their Church, including the Archbishop of Sydney, could be so deceived by the applicant. There is said to be a complete failure of the Tribunal to logically explain, or give any consideration to, how Reverend Robson and the other five or more witnesses could have been so gullible that they were fooled by the applicant over more than five years of close religious association with him.
[34] An additional witness for the applicant: see CB 248-249, 291.
Minister’s contentions
These two grounds focus on the Tribunal’s treatment of the corroborative material. The applicant argues that the Tribunal failed to engage with the material in a meaningful way and in a manner that was legally unreasonable. In this regard, the applicant makes a broad assertion that “numerous” corroborating statements fall within the scope of these grounds. However, the ones identified by the grounds themselves are:
(a)the authorisation from an Archbishop of the Anglican Church to allow the applicant to perform as a lay assistant;
(b)the letters of support from Nima Alizadeh, the founding pastor of Revelations Ministries Incorporation and the leader of the Iranian Church of Sydney;
(c)various letters of support from Reverend Robson, a minister of St Paul’s Anglican Church who had known the applicant for five years; and
(d)a letter from the Australian College of Theology confirming that the applicant had enrolled in the Graduate Diploma of Divinity.
The applicant’s summary of the legal principles is largely uncontentious insofar as it correctly summarises the aspects of the authorities on which the applicant relies. There is not any dispute that a decision-maker may fall into error if he or she fails to give meaningful consideration to evidence or claims. The use of adjectives such as genuine, realistic or active do not assist in the analysis and encourages merits review; rather the question that must be addressed is the reality of consideration engaged in by the decision-maker.[35]
[35] Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [42]-[45].
In respect of the effect of the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002,[36] the critical point for present purposes is that decision-maker does not act irrationally in making an assessment of the applicant’s credit before giving attention to the corroborative evidence.[37] It is not a matter of dispute that the decision-maker is not permitted to disregard the evidence.[38]
[36] (2003) 198 ALR 59.
[37] Per Markovic J in BHM15 at [48] relying on SZNSP at [32]-[38].
[38] SZNSP at [38].

In relation to the use of unexpressed and unwarranted assumptions made by decision-makers, a proper reading of the authorities relied on by the applicant indicates that whether the Tribunal has reasoned in such a way that relies on unfounded assumptions is referable to the particular circumstances. In addition, as Allsop CJ has noted, the issue is whether there is a foundation in logic, experience or material for the assumption to be made.[39]
[39] SZHYH at [48].
The applicant identifies three alleged errors in the Tribunal’s reasons. The applicant argues that the Tribunal made an unwarranted assumption about Christian congregations and argues that this informed a failure by the Tribunal to engage with the corroborative material. Allied to this, the applicant says that the Tribunal was required to identify in its reasons why it rejected certain aspects of the corroborative evidence. This argument is said to involve a misreading of the Tribunal’s assessment and its approach to the evidence.
The Minister submits that, first, it is important to understand that the Tribunal did take account of the corroborative material and understood that the material was “strong”; the first sentence of [70] of the decision indicates this. The context for this finding is the Tribunal’s acceptance that the applicant undertook the activities he claimed. To the extent that the evidence of third parties corroborated this, it may be inferred that the Tribunal accepted it. It is therefore apparent that the Tribunal declined to give the statements much weight insofar as they purported to express opinions on the genuineness of the applicant’s conversion (rather than the applicant’s actions themselves).
Secondly, the Minister submits that such opinions were proffered based on actions of the applicant; put differently, the witnesses formed a view as to how genuine the applicant was based on those actions. The probative value, if any, of the corroborative material was the assessment that each of the witnesses made about the applicant’s genuine belief in and commitment to Christianity.
The Minister submits that, in that context, it may be inferred that the Tribunal’s observation in the second sentence was based on the Tribunal’s own experience. However, even if it was an assumption it was not unwarranted. It is not beyond the realm of logic or common experience that Christian congregations (as with all religious groups) may take professions of faith at face value and, more importantly, treat those who engage with the community as expressing genuine adherence to their faith. They may do so by giving such individuals the benefit of the doubt or by simply accepting that the actions they have seen (eg attendance at church, time spent in the congregation and further study) reflect a genuine belief.
The Minister submits that, critically, the Tribunal’s reasoning was that such beneficial (or indeed benevolent) attitudes or approaches were formed without reference to the broader domain of evidence to which the Tribunal had regard and to which it was required to have regard. In other words, the Tribunal had to have regard to all of the evidence rather than merely the evidence (by its nature self-reinforcing) that attendance and participation at church and in religious study constituted objective signs of a real commitment to faith.
Thirdly, the Minister submits that the Tribunal’s example at [71] was plainly designed to exemplify (rather than exhaustively document) the limitations that may be inherent in evidence from congregation members who had a limited or no awareness of the broader body of evidence about the applicant’s actions. It underscored the broader point being made by the Tribunal about the nature of the corroborative material (to the extent that it involved assessments of the applicant by third parties): the witnesses were likely to place greater emphasis on the actions of the applicant showing genuine faith because they were unaware of the other material which might prompt a more sceptical view.
Given this, it may properly be inferred that the Tribunal considered the evidence and placed the evidence in the context of the totality of the material before it.
Resolution
Although these first two grounds were taken together, they are not necessarily co-extensive. A failure to engage intellectually with material does not necessarily result in an unreasonable finding or outcome. In respect of both of these grounds, I prefer the submissions of the Minister.
In my view, the applicant’s attacks on the Tribunal’s adverse credibility finding are misdirected. The Tribunal was under no obligation to accept the evidence of the applicant’s witnesses, no matter how numerous or how forcefully they put their opinions. The Tribunal was required to make its own decision on the basis of the material before it.
The Tribunal did not disregard any evidence, but it is plain that it did not place much weight on the evidence given by the applicant’s witnesses. The Tribunal was under an obligation to engage with the material before it, but it did so, albeit in an economical way.
Read fairly, and as a whole, it is plain that the Tribunal reasoned that the applicant was a clever con man who was willing and able to live a lie for the sake of a benefit to be derived from it. The Tribunal may have been reluctant to embarrass the applicant’s witnesses by stating in black and white that they had been, in the Tribunal’s view, duped by the applicant, but it is plain enough from the decision read fairly and as a whole that that was the Tribunal’s view.
Considered objectively, there was nothing in the evidence relied on by the applicant that was bound to persuade the Tribunal otherwise. Even the most casual observer of the human condition would agree that some people are willing and able to live a lie for their entire lives if there is something sufficient for them to gain from it. The applicant, on his own account, had been willing and able to live a lie in Iran by presenting himself as a faithful Muslim. He expected to secure advancement or preferment by doing that. It was logically open to the Tribunal to form the view that the applicant was doing the same thing in Australia in relation to his purported adherence to the Christian faith.
I see no error in the Tribunal’s approach.
Ground 3 – did the Tribunal apply an arbitrary standard of genuine Christian practice?
Applicant’s contentions
The first part of Ground 3 overlaps with part of Ground 1 and 2 as it involves the same error in respect to corroborating evidence in the form of documents. Then the second part of Ground 3 covers the arbitrary standard of religious practice that the Tribunal assumed in the questioning of the applicant and the witnesses in the Tribunal hearing for the purpose of testing the genuineness of the applicant’s religious conversion. The two parts are related to the Tribunal’s assessment of genuineness and they are interrelated for the reasons discussed below.
Failure to consider corroborating documentary evidence
The Tribunal found that “the applicant is not a genuine Christian convert” at [77],[40] however the reasons for that finding are said not to be made clear in its decision. The Tribunal alludes to reasons via a culmination of assertions but does not directly identify the evidence or any other material which support why the applicant was not believed.
[40] CB 362.
An example of a “vague and ambiguous assertion” of the Tribunal is said to be the finding that: “[w]hilst the Tribunal acknowledges that the level of participation of the individual in the faith community is more significant than that displayed by many other applicants claiming religious conversion, I am required to look at the applicant’s overall claim” at [72].[41] The context of that statement sheds some light on its oblique meaning. The beginning of that paragraph suggests that the timing of the increase in the applicant’s religious activities is significant to disbelieving his claim because it occurred after he received his refusal for a protection visa application.
[41] CB 362.
Around 21 months after his refusal, the applicant enrolled in a part-time Graduate Diploma of Divinity with the Australian College of Theology and he is due to complete his studies in mid-2022.[42] Also, almost two years after the delegate’s refusal decision, the applicant was appointed to the Anglican Church lay ministry for his congregation. A letter dated 22 August 2018, from the Bishop of North Sydney Anglican Church at CB 260, shows that he has received the Archbishop’s Authority to be a lay assistant to the parish of Carlingford and North Rocks for about the next five years from that date.
[42] CB 258- 259.
The Tribunal indirectly acknowledges that the applicant undertook both of these religious activities, however, the Tribunal makes no finding on whether those activities, in and of themselves, demonstrate the genuineness of the applicant’s conversion. There is said to be a complete absence of any meaningful engagement with the impact of participating in these religious roles and studies on his believability. Instead, the Tribunal “jumps to an adverse conclusion” in the next paragraph at [73],[43] by stating that the coincidence of the timing “raises further serious concerns about the true motivation of the applicant”.
[43] CB 362.
The Tribunal is said to leap to that conclusion by paying “mere lip-service” to the applicant’s significant religious activities. For instance, it is said to completely fail to examine: what it takes to complete the Graduate Diploma course; what it takes to be given such an authority by the Archbishop of Sydney; or what functions that authority allows him to perform, such as conducting services of public worship. The evidence is that an authority to be a Lay Reader by the Archbishop is not conferred lightly; Churches have to apply to the Archbishop and justify the request.[44] None of that is examined by the Tribunal. The Tribunal did not even name what those activities were that the applicant undertook in any of its findings.
[44] CB 256.
The applicant contends that he and the reviewing Court are left to guess what role, if any the studies and authority played in the ultimate decision, and is left to guess why the Tribunal’s reasoning jumped to an adverse conclusion on the timing of the increase participation without any meaningful engagement with the corroborating documents. However, the questioning of the Tribunal at the hearing reveals its approach, as discussed below.
Tribunal’s questions disclose an arbitrary standard
The applicant submits that a reading of the transcript of the Tribunal hearing reveals that closely incorporated in the Tribunal’s adverse conclusion on the timing of the applicant’s increased participation is its repeated questioning to test the applicant’s motivation for doing it, by assuming an arbitrary standard of religious practice that a genuine Christian would adopt.
The facts
That arbitrary standard adopted by the Tribunal is said to be revealed in its decision by the following under the heading of “Claims and Evidence”:[45]
(a)“[h]e was asked if he worked with the poor, the destitute and the like. … Asked if he did anything that didn’t involve evangelising – something that involved getting his hands dirty, with the homeless in the Cross or the like”;[46]
(b)“[i]t was put to him that churches had places where he could help out. He appeared to be keen to have an evangelising profile on social media but not to get his hands dirty with helping the poor”;[47] and
(c)“[a]sked about the applicant’s charitable works the witness said that he was very active within the church community”.[48]
[45] Applicant’s emphasis retained.
[46] At CB 259 [52].
[47] At CB 259 [53].
[48] At CB 358 [46].
The Tribunal’s approach was to ascertain whether the applicant helped the poor or the homeless, without evangelising. The implication of its line of questioning was that if the applicant helped the poor, the homeless, and “got his hands dirty” then his conversion would be genuine. That “arbitrary standard” was, in the applicant’s submission, what the Tribunal identified as the lynchpin to enable it to conclude that the timing of his increased participation would be innocent and not for personal gain. So, if he failed to get his “hands dirty” to the satisfaction of the Tribunal, then it would, and did, conclude that the timing of the applicant’s increased religious participation was only to obtain a protection visa.
The applicant contends that that approach of the Tribunal was erroneous for two reasons:
(a)first, it narrowly focusses on the activity of evangelising online to increase his social media profile, and completely ignores the fact that the applicant did far more than that, as demonstrated by his studies and the authority to be a lay assistant to two parishes, as discussed above; and
(b)secondly, it is contrary to the authorities, as discussed below.
The law
Religious belief
The authorities make clear that the testing of religious beliefs by the Tribunal needs to:
(a)be undertaken by questioning that takes a careful, broad, open-ended approach founded on probative material, and
(b)if there are any variations in the applicant’s answers there must be a rational and logical connection to the conclusion that the applicant is not an adherent of the religion, and
(c)not be based on an arbitrary standard that has been set indiscriminately by the Tribunal operating from the premise that all believers will have certain specific knowledge or practice, without any probative basis.
The relevant parts of the authorities on the testing of religious belief are summarised as follows:
(a)“it must also be recognised that holding a religious faith is a core, and highly personal, part of an individual’s identity. That is why it is a protected attribute under the Convention Relating to the Status of Refugees … Many people who hold a religious faith consider their religious faith defines who they are. For a person who exercises public power to make a finding that an individual does not hold the religious faith she or he claims to hold, and therefore does not have the personal identity she or he claims to have, is a very serious finding indeed. If wrong, it is difficult to imagine a finding that will be more offensive and shocking to an individual. Decision-makers should, in my opinion, remind themselves about the nature of religious faith and its place in individual identity when, as part of the task of an exercise of public power, they are called on to decide whether or not they accept a person’s claims to hold a religious faith, or to be a member of a particular religion” [49];
[49] SZVTC v Minister for Immigration and Border Protection [2018] FCA 824 per Mortimer J at [31].
(b)“[t]he holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. … An evaluation of an internally held attribute – such as an opinion or a belief – is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. … What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge”[50];
[50] MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [47] per North, Bromberg and Mortimer JJ; citations omitted.
(c)“[t]he vice in the Tribunal’s reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the visa applicant’s failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008.
Nor, in my opinion, is the Tribunal’s finding based on any probative material in the sense referred to in the High Court authorities to which I have referred. This can be tested by asking whether there is any probative material disclosed in the Tribunal’s reasons to support its conclusion that it was not satisfied that he had a level of knowledge of the Bible that a person might reasonably be expected to have if they had been a believer in, or practitioner of Christianity in China during the period in question.
The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role”[51];
(d)“I accept that a Tribunal which relies on the premise that ‘every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion’ may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error…
… As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim 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 be reasonably expected to know. If this condition is satisfied, and the 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 he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail 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. Under such circumstances, jurisdictional error is a possibility”[52]; and
(e)“[c]entral to Kenny J’s reasoning at [37] of SZLSP, is her Honour’s conclusion that for a Tribunal to proceed on the premise that all believers will have certain specific knowledge of a religion, may well fail to engage with the question of whether a particular applicant is a follower of the religion. What that reasoning (and that of the Full Court in SZOCT which adopts it) calls for is an assessment of whether or not a logical or rational connection based upon probative material, exists between an applicant’s failure to hold the specific knowledge and the knowledge that all followers of the religion may be expected to have.
The existence of a logical or rational connection will likely depend upon the extent of the specific knowledge required to be demonstrated. An assessment made against the most basic tenets or features of a religion, is more likely to have the requisite logical connection because knowledge of the most basic tenets or features of a religion can be expected to be held by all of its followers. But because the level of knowledge held by followers of a religion will naturally range along a spectrum from basic to sophisticated, the more the assessment moves from the basic to the sophisticated, the more likely it is that the connection between the specific knowledge and all followers will no longer be logical.
Additionally, once the assessment moves from the basic to the more sophisticated, the potential for diversity in the understanding, application and practice of the tenets or spirituality involved will be greater. As that diversity increases, that which may be expected of all adherents will correspondingly narrow and the logical connection will diminish and then be lost”.[53]
Application to the facts
[51] Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 per Jacobson J at [22]-[24].
[52] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [37]-[39] per Kenny J.
[53] SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495 per Bromberg J at [34]-[36]; emphasis in original.

The applicant contends that the Tribunal’s line of questioning of the applicant shows that its testing of the applicant’s religious beliefs took an approach contrary to the authorities, as follows.
First, its persistent questioning on whether he got “his hands dirty” in the narrow sense defined by the Tribunal, shows that it restricted its view of what practices the applicant had to be doing to demonstrate his belief.
Secondly, there was no probative material to restrict the hallmark of a Christian to those narrow practices. Even though the Tribunal member states that he is a practising Catholic, there is no material relied upon to show that if one does not actively feed the homeless and the poor, they are not an adherent to the religion. There is no evidence that the Tribunal member gets his “hands dirty” in practicing his faith.
Thirdly, the Tribunal also has set its own level of how much of this type of activity the applicant needed to do, without any probative basis. It was not satisfied that the applicant did some charitable works, but had limited time due to his studies. There was no rational and logical connection to the conclusion that the applicant was not to be believed because it did not meet this arbitrary level assumed by the Tribunal.
Fourthly, the witnesses called are senior and long-time members of the Anglican Church who expressed in oral evidence the basis upon which they assessed whether the applicant was real or fake. The standards upon which those witnesses used was not referred to by the Tribunal at all, showing that it was not taking a careful, broad and open-ended approach to testing personal belief propounded by the authorities.
Further, the Tribunal’s framing of these questions is said to have implied that in the Tribunal’s reasoning these activities meant that the applicant needed to show that his activities had nothing to do with increasing his evangelising online. However, the incongruity is that the two corroborating documents, the studies and the authority shows that he did just that. They were not related to building up his online religious profile, and yet the Tribunal failed to given them any active intellectual engagement and/or provide a real, genuine and proper consideration of them.
In those circumstances, the applicant submits that any argument that the standard adopted by the Tribunal was not arbitrary but an objective test of genuineness through other non-evangelising, non-online activities, must fail because the Tribunal had before it evidence of just that, but it still failed to meaningfully engage with it. It neglected to question the applicant about his authority to be a lay assistant or the purpose of his Graduate Diploma in Divinity studies. What the Tribunal’s line of questioning does reinforce is that it adopted a strictly narrow and arbitrary standard of helping the poor and the homeless to prove genuineness, which is contrary to all the authorities. That erroneous approach led to the Tribunal’s adverse conclusion about the timing of the applicant’s increased religious activities.
Particulars (b) and (c) were addressed in oral submissions at the hearing and rely on the same principles as particular (a)
Minister’s contentions
This ground has two strands: the Tribunal’s treatment of the documentary evidence and one aspect of the questioning of the Tribunal in relation to the nature of the applicant’s religious practice. These are dealt with in turn.
Documentary evidence
Contrary to the applicant’s assertion, the Minister contends that the reasons for the Tribunal not being satisfied that the applicant was a genuine convert are apparent from a proper reading of the decision as a whole. This involved a number of elements:
(a)the applicant’s reasons for moving away from and otherwise rejecting Islam (based on the evidence the applicant gave about what he found unsatisfactory in the Islamic faith);[54]
(b)the limited manner in which the applicant undertook exploration of other faiths and the lack of any evidence demonstrating a desire to learn about or understand Christianity as well as his general lack of interest in religion;[55]
(c)the applicant’s apparent interest in Christianity when he arrived in Australia despite having no apparent interest in religion or religious experience. This included his vague evidence about the person who introduced him to Christianity and the fact that he did not mention to his psychologist his explorations of the Christian faith;[56] and
(d)the marked increase in the applicant’s religious activity following the delegate’s refusal of his application, including his online activity. It was the broader context that explained the Tribunal’s scepticism about the applicant’s participation. This included a pattern of behaviour that the applicant claimed not to be Muslim but still attended a pilgrimage to Mecca and he was religiously observant but for apparently secular reasons, thereby underpinning the adverse inference to be drawn from the applicant’s participation in religious activity here.[57]
[54] [59]-[62].
[55] [63]-[66].
[56] [67]-[69].
[57] [72]-[76].
Although the Tribunal’s reasons are often expressed concisely, it is said to be apparent from the context that the findings were referable to the evidence that the Tribunal had identified and clearly considered.[58]
[58] As summarised at [9]-[58] of the decision.
The applicant focuses on one example of what he claims shows the Tribunal’s failure to engage with the documentary material. The finding at [72] of the decision is hardly oblique; the Tribunal questioned what the applicant’s participation represented. There was no doubt in the Tribunal’s mind that there was a significant amount of evidence about the applicant’s participation. The Tribunal questioned the timing of that participation. In addition, the Tribunal took into account the applicant’s misrepresentation of his parents’ religious background and his own attachment to Islam. Thus the Minister submits that [73]-[75] clearly formed part of the basis for the finding in [72].
It is said to follow that the applicant’s submissions are misdirected. It may be inferred that the Tribunal accepted the evidence of participation, but it did not accept that such participation reflected a genuine engagement with Christianity. It was not necessary for the Tribunal to set out in any greater detail the nature of the evidence of participation; the quality of that evidence was weighed against the other evidence that the applicant was someone prepared to go to some lengths to convey a sense of engagement when in fact the more likely explanation was that he did not have a genuine adherence.
This is said to be logical: participation may be evidence of genuine engagement or of a deliberate decision to undertake activities for the purpose of conveying this in order to bolster an application for protection. The Tribunal was simply persuaded of one answer rather than the other.
Arbitrary standards
This aspect of the applicant’s argument relies on one particular line of questioning used by the Tribunal. It is important to understand the context for this particular questioning and its role in the Tribunal’s reasoning.
In discussing the applicant’s possible return to Iran, the applicant noted that his fear was in part based on his belief that the Iranian authorities were aware of his social media activities.[59] The applicant then had a discussion with the Tribunal about the social media postings (said to be on an encrypted app). The Tribunal noted that the online ministry started after the applicant had been refused a visa.[60] The Tribunal explained to the applicant that it had a concerns that the only reason the applicant had engaged in the social media activities was to raise his refugee profile.[61]
[59] Transcript at page 40, line 16 onwards.
[60] Transcript at page 42, lines 15-19.
[61] Transcript at page 43, lines 5-9.
The applicant insisted that the activity was genuine (although the applicant accepted that the Tribunal’s concern was warranted). Importantly, as part of his extended answer justifying his social media work the applicant stated that “if I really wanted to fake…., I would just be focusing on that, not even like focusing on the church or leading the church and basically taking care of mentally the members as well”.[62] Later in the same answer, the applicant said that “all I was doing was that what can I do for the current Christian believers to keep stronger in their faith, and … what can I do in the evangelism sort of perspective”.[63]
[62] Transcript at page 43, lines 22-25.
[63] Transcript at page 43, lines 31-33.
The Tribunal responded to that answer by noting that there was a lot of evangelical Farsi programming. In other words, it was not clear to the Tribunal what the motivation was for the applicant in simply engaging in social media evangelising. It was in that context that the Tribunal posed the question as to whether the applicant did work that was less public (in other words, less capable of being deployed in support of an application but more probative of a genuine commitment to Christianity). It is submitted by the Minister that this was the purpose of framing the enquiry about whether the applicant worked with the poor. That concern was made clear later in the discussion when the Tribunal asked what the applicant did that is “not – you know- just helping people, not evangelising, that there’s a gain for you? Do you just go and get your hands dirty….?”[64]
[64] Transcript at page 44, lines 22-26.
The Minister submits that when this context is understood it becomes clear that the Tribunal was exploring, and testing, the applicant’s motivation for public rather than private displays of faith. It was not setting an arbitrary test for religious practice. The Tribunal was not, on a proper analysis, requiring the applicant to meet such a standard but instead questioning why all of the applicant’s work had been public in nature. The public nature of it, along with its timing, tended to suggest to the Tribunal that the applicant was using the social media activity to support his visa application. It was the public nature of what the applicant did rather than the private nature of what the applicant did not do that was important. That point is reinforced by the authorities on this issue. Those authorities deal with situations where the decision-maker imposes some entirely arbitrary requirement for an applicant to have certain types of religious knowledge. Those authorities have no bearing on the question of how a decision-maker tests, as in this case by use of counter-examples, whether an applicant’s faith is genuine.
The applicant refers to the failure of the Tribunal to address the “standards” upon which the witnesses assessed whether the applicant was genuine. This is said to miss the point. There was no standard; the matter was a question of evidence. In the case of the witnesses, as explained above, the Tribunal found that their assessment was based on limited knowledge of the applicant in circumstances where they were, understandably, inclined to treat what the applicant said at face value. That is entirely different from the imposition of what a decision‑maker says, erroneously, is some recognised standard of religious knowledge that the applicant is meant to demonstrate. Neither the witnesses nor the Tribunal engaged in that form of thinking.
Resolution
I agree with the Minister that, rather than imposing an arbitrary standard of religious observance or faith, the Tribunal was exploring whether the applicant, in addition to his public declarations of faith, had engaged in any private activities that would support his claim to be a genuine Christian. The Tribunal did not regard it as essential that a genuine Christian would carry out charitable activities, but wanted to explore with the applicant whether he had done so as it would be supportive of his claims.
Further, the Tribunal did not disregard the documentary evidence relied upon by the applicant, it was simply not persuaded by it. I accept the Minister’s submissions in that regard.
Again, I see no error in the Tribunal’s approach.
Ground 4 – did the Tribunal otherwise err in finding the applicant had faked his interest in Islam and was faking his interest in Christianity?
Applicant’s contentions
Ground 4 relies on the authorities for errors discussed in Grounds 1 and 2 above, in addition to the seminal authorities on legal unreasonableness such as Minister for Immigration and Citizenship v Li,[65] and directs them at the specific finding of the Tribunal at [74]:[66]
I do not accept that this increased activism was because he got a revelation after he was refused, but rather that he needed to raise his profile in order to make his case more compelling. This follows an earlier pattern of behaviour in Iran where he claimed that even though he was no longer functionally Muslim he went on ‘umrah’ because it was a chance to have a cheap trip to another country, and he attended religious observances in Iran because it would be good for his prospects of getting a government job.
[65] (2013) 249 CLR 332.
[66] CB 362.
First, the Tribunal is said to inaccurately recount the applicant’s evidence in respect of the reason the applicant went to “umrah”[67] in Saudi Arabia, the Tribunal only referred to half of the evidence and missed the most important part.
[67] An Islamic pilgrimage to Mecca.
When asked at the Tribunal hearing why would the applicant go to umrah if he did not like Islam, the applicant replied:[68]
Well, for two reasons. Number one, because of the cost of (indistinct) very reasonable and I felt this is an occasion to see another country, but number two was because I felt that this is the cradle of Islam, the centre of Islam and I felt that if I failed to be satisfied with my desire in my connection with God in my own country, maybe somehow there I will know the answer and find the answer to my quest.
[68] Transcript at page 13, lines 12-17.
So in glaring contrast to the Tribunal’s account that the applicant went to umrah in Saudi Arabia for purely a personal ulterior motive, in fact his evidence is said to have been that he was in search for a further connection to the religion.
Further, when the applicant was asked whether he found the answer to his religious quest in Saudi Arabia, his reply is said to have been a thoughtful and detailed answer that referred to religious reasons for why he did not find what he was looking for.[69] Again, the Tribunal fails to give this full picture of the applicant’s evidence in its decision.
[69] See Transcript at page 13, lines 21-30.
Secondly, the Tribunal similarly sweepingly stated the other part of the applicant’s evidence in the last part of its finding at [74].[70] The transcript at page 15 shows that the applicant’s evidence was that his exploration of Islam and his dislike of it in his early 20s while in Iran was a “gradual” journey in his life, it was not just one event that followed his trip to umrah.
[70] CB 362.
Also, the fact that he went to religious services about three times a year in order to keep the option to apply for a government job and “have a secure life in the country”, is said to have been a reasonable survival strategy in the circumstances of the applicant. The applicant contends that it was legally unreasonable for the Tribunal to characterise that as showing the applicant’s willingness to deceive for his personal gain.
The reasoning of the Tribunal is said to be analogous to:
(a)a decision-maker stating that he or she did not believe a person was gay because they accepted an arranged-marriage in their home country, and inferring that if the person was willing to lie about his sexuality there, he was willing to do so here; or
(b)a decision-maker stating that he or she did not believe a person’s claim because they travelled on a fake passport, and inferring that if the person was willing to use false documents to flee his home country, he was willing to lie here.
The applicant submits that in both of the above scenarios, the decision-maker’s findings would be deemed legally unreasonable and/or lacking in any logical connection between the evidence and the inferences and conclusions drawn by the decision-maker.
Likewise in the present case, the applicant submits that it should not have been held against the applicant that he undertook occasional Islamic religious activities in order to survive in Iran, and keep his job prospects open. It was unreasonable for the Tribunal to conclude that behaviour would indicate that the applicant would be willing to fabricate, and did fabricate, his Christian religious activities in Australia.
It is also said to have been legally unreasonable for the Tribunal to equate the two behaviours when the level activities in respect to each are vastly different. It is one thing to attend Islamic religious services three times a year without truly holding that belief, but it is an entirely different matter to undertake such serious practices in Christianity that he has been given the authority of the Archbishop of Sydney to lead services and preach, and is the lay minister in charge of the Farsi congregation in his parish. It was legally unreasonable for the Tribunal to fail to give any consideration to how likely it would be that he could sustain that high level of activity without any true faith for more than five years.
Minister’s contentions
In respect of this ground, the Minister submits that it should be borne in mind how legal unreasonableness arises in respect of fact finding, bearing in mind the need for the supervisory court on judicial review to avoid engaging with the merits. Often appeals to unreasonableness are simply a disguised attempt to cavil with, and seek to change, factual findings that are open to the Tribunal and which are within the Tribunal’s jurisdiction (including the power to make erroneous findings of fact). Any finding of legal unreasonableness is subject to a stringent standard, with a high threshold and is likely to be rare.[71]
[71] Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46 at [26]; per Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [100].
At [27] of the decision, the Tribunal noted that the applicant had been asked about a trip that the applicant had made to Saudi Arabia. The Tribunal questioned why the applicant originally described this as a “leisure trip”.[72] The Tribunal then set out at [28] the applicant’s explanation which included the applicant’s explanation that he went to Saudi Arabia not only because he wanted to see another country but also because it was the cradle of Islam and if the applicant was not satisfied, he might be able to find the answer to his quest in Mecca. It also noted the applicant’s claim that he did not find the answer to his quest (and the reasons for this).[73]
[72] Transcript page 12, lines 13-47.
[73] CB 356.
This is said to make clear that the Tribunal was aware of the applicant’s explanation for his trip on a pilgrimage to Saudi Arabia and that, contrary to the applicant’s written submissions, the Tribunal did accurately record those claims.
The Tribunal put to the applicant that Iran had one of the lowest participation rates for religious observance and mosque attendance in the world.[74] The applicant agreed with this and in response noted that his participation in religious services was to secure social status. In answer to the Tribunal’s question of whether this was done to “advance [his] career” the applicant answered, “yes”.[75] The applicant went on to state that “I never believed in Islam when I was participating”. The significance of that statement is obvious in the context of the applicant’s evidence; it suggested that the applicant was capable of participating in religious practice without having any genuine belief.
[74] Transcript page 14, lines 6-13.
[75] Transcript page 14, lines 15-25.

The applicant characterises the claim he made as a “reasonable survival strategy”. Although the applicant did mention having a “secure life” in Iran it is not clear what he meant by that. He gave no evidence of what he thought might happen to him had he not, in effect, pretended to be observant and his evidence was clear in rejecting the tenets of Islam. It had already been put to him that the country information suggested that lack of participation came with no adverse consequence. Even assuming the correctness of the analysis of the applicant’s written submission (which the Minister does not accept) the analogies are said to have no traction in the present case. The applicant was not Christian at the time and did not fear harm on that basis; there was no evidence from the applicant of what harm non-participants would come to and country information suggested that no harm would come to them.
Resolution
In my view, this ground is made out, but not quite in the terms asserted by the applicant, either in his written submissions or orally. Rather, the error arises in relation to the Tribunal’s application of s 5J(6) of the Migration Act as raised by me in oral argument.
It is plain that the Tribunal rejected the sincerity of the applicant’s public online expressions of his faith. The Tribunal’s reasoning is relevantly at [58]-[76] where it stated:[76]
[76] CB 360-362.
58.      While I accept that the applicant attends church, has been baptised and now attends Christian religious studies, I do not accept that this is genuine, but rather has been done tactically in an attempt to create a refugee profile. I acknowledge that it may be difficult to determine what is truly in one's heart, however the Tribunal must have, and has had regard to the totality of the applicant's claims and actions (or lack thereof) in coming to this finding.
59.      To begin with there is concern with the truthfulness of his account regarding the move away from Islam in Iran and the 'finding' of Christianity. His reasons for rejecting Islam were somewhat shallow. He rejected it because of his belief that only Arabic could be used to contact God, even though this is not the case. Even a leading Salafist website (islamqa) says that supplications to God (du'a) can be made in one's own language as God understands one's intentions.[77]
[77] accessed 10 September 2019.
60.      He also mentioned that polygamy and inheritance laws were other reasons he disliked Islam although these are only allowed in some Muslim-majority countries. It was put to him that he was discounting the entirety of an interpretive religion like Islam when he had limited experience of it. While I accept that he had only experience of it in Iran (and during 'umrah), he does not appear to have engaged intellectually with how Muslims practice their faith in Western countries like Australia where the[ir] circumstances are entirely different to that of Iran.
61.      Although he claimed that he moved away from Islam when he was 18-20 and didn't believe in Islam from his early 20s, he still performed 'umrah while he was at university. His claim that he did so because the price was reasonable and he got to see another country would indicate that he didn't object to Islam sufficiently to baulk at the prospect of going to Mecca - indeed he went voluntarily. His claim that he got to see another country (conservatively Muslim Saudi Arabia) is also strange given he didn't make any effort to see a neighbouring country that was avowedly Christian (see below), along with the fact that 'umrah is a religious pilgrimage with its attendant religious obligations and not a site-seeing tour.
62.      He also claimed to have 'faked' an interest in Islam by attending religious observances in order to have a secure life. It appears inconsistent that, if he was so ill-disposed to Islam then he would still be willing to visibly attend Shi'a religious commemorations in order to give himself future career options within government. The action appears self-serving at best, and not indicative of a strong theological rejection of Islam, particularly given he wanted to retain options to work for the government of the Islamic Republic of Iran, an avowedly theocratic state.
63.      His exploration of other religions also appeared to be virtually non-existent. He only said he did a 'rough exploration' and studied a bit about Zoroastrianism. He never did anything that would indicate any real effort to explore Christianity such as going to neighbouring Armenia, a Christian country that hundreds of thousands of Iranians visit annually. I do not accept that he couldn't have done it as he needed his father's permission. Given he was an adult he did not need such permission (nor did he provide evidence to support this claim) and he also admitted he hadn't even asked them, which is not supportive of any real desire to travel to explore different faiths outside Iran.
64.      His description of his parents' religious faith is also inconsistent. In his protection visa application (folio 44) he described them 'Aliolahi' and that his mother and father relocated to Karaj to avoid persecution but they lived in fear of being identified as 'a family of not believing Shiaism (sic) of Iranian government' and that they couldn't practice their religion and lived in isolation as a result.
65.      Yet in his protection hearing he claimed that his father's side were Shi'a but his mother's was Ahl e-Haqq and that his father practised Shi'ism but not completely. Asked to clarify their status he claimed his parents were normally Ahl e-Haqq but nominally Shi'a on their birth certificates. He claimed that his father's family moved to Shi'ism and encouraged him to grow up in a Shi'a environment, and that many Ahl e-Haqq changed to Shi'ism after the Iranian revolution. Yet his protection claim stated that they moved to Karaj (to avoid persecution and live in isolation) from 2001 which was well after the 1979 Iranian revolution and would indicate that either they remained Ahl e-Haqq or that they were always Shi'a and simply moved to Karaj.
66.      His journey to Christianity in Australia appears vague at first but targeted. He does not appear to have done any substantial research into other religions - he simply claimed that he researched Zoroastrianism on the internet. He spoke to no other religious clerics or visited their houses of worship. He appears to have been disinterested in religion.
67.      Yet he claimed that an Iranian friend of his sister's in Australia by the name of … introduced him to Christianity because he was depressed. He could not recall her family name, she didn't appear as a witness nor has he kept contact with her. This in itself appears strange that someone would not maintain some form of contact with a person who had introduced him to his new faith - particularly given she was friends with his sister and easily contactable.
68.      I accept that he went to church after arriving in Australia as he claimed, but am not satisfied that it was as a part of a spiritual journey of discovery. Having had no real interest in other religions prior to coming to Australia (he claimed that he undertook a 'rough exploration' of Zoroastrianism without elucidating further, he arrived on 2 May 2014 and began attending church at Granville and then St Paul's for around a month before he began at Carlingford.
69.      He had a meeting with the university counsellor regarding stress levels as a result of his new environment, yet there is no mention of his church attendance. Indeed, in a section headed 'Changes' (folio 136) there is no mention made of his changed spiritual circumstances, and later it recommends that he undertake social activities. If he had been involved with the churches and on the path of a spiritual journey to change his religion it is reasonable to believe that mention would have been made of it. I do not accept that the applicant told the counsellor but he didn't write it down. Given the range of life changes the counsellor noted it is inconceivable that a counsellor would not have noted his attraction to a new religion.
70.      I have taken into account the numerous and strong references from a range of secular and religious individuals in Australia but am unable to lend them much weight. Christian congregations are by their very nature welcoming places and, whilst obviously given in good faith those who wrote them have little knowledge of the applicant’s past, to which the Tribunal is obliged to pay attention in assessing his credibility and genuineness.
71.      For example, Reverend Robson offered in one reference that he was well placed to comment on the applicant's personal faith journey (Folio 73) yet stated in an earlier statutory declaration (folio 35) that the applicant's father was a committed Muslim from an extremist religious family. This is not supported by the applicant's own claims in his original protection visa outlined above. When questioned Pastor Robson was unable to say where he had received this information from. It is natural for people to think the best of those who seek to convert to Christianity, yet the reality is that not all who do, do so with pure intention in their hearts.
72.      I also note that the applicant's religious profile has increased markedly since the refusal of his protection visa on 19 October 2016. He received his rejection on 19 October 2016 and has enrolled in a part-time grad dip in Divinity on 1 July 2018 and been appointed to the Anglican church lay ministry for his congregation in August 2018. Whilst the Tribunal acknowledges that the level of participation of the individual in the faith community is more significant than that displayed by many other applicants claiming religious conversion, I am required to look at the applicant's overall claim.
73.      I have already raised my concerns about the applicant misrepresenting his parents religious background and his own attachment to the religion of Islam. The coincidental timing of a raised interest and level of participation in the Christian faith after having his protection visa claim rejected raises further serious concerns about the true motivation of the applicant.
74.      I do not accept that this increased activism was because he got a revelation after he was refused, but rather that he needed to raise his profile in order to make his case more compelling. This follows an earlier pattern of behaviour in Iran where he claimed that even though he was no longer functionally Muslim he went on 'umrah because it was a chance to have a cheap trip to another country, and he attended religious observances in Iran because it would be good for his prospects of getting a government job.
75.      I also do not accept that the applicant's participation in what he claimed to be his online Christian activity for the past 18-24 months was done for any reason other than to build a social media profile in furtherance of his protection visa application. A simple internet search indicates that there are a large number of Farsi evangelical products so it appears conveniently timed that the applicant would begin to add to it after his visa was rejected.
76. As I advised the applicant during the hearing, s.5J(6) requires me to disregard his social media activity in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
It is in my view clear from the Tribunal’s reasoning that it rejected in its entirety the applicant’s religious claim by finding that his religious conversion and activities were done tactically in an attempt to create a refugee profile.
With specific regard to the applicant’s online activity, the Tribunal applied s 5J(6) of the Migration Act to the applicant’s social media activity, presumably because the Tribunal was satisfied that that activity had to be disregarded because the Tribunal was not satisfied that it had been engaged in otherwise than for the purpose of strengthening the applicant’s claims to be a refugee.
A problem is that the Tribunal appears to have formed the same view about all of the other activities engaged in in Australia by the applicant as a purported Christian but did not so disregard those activities. It follows that either the Tribunal did not engage in necessary reasoning for the purposes of s 5J(6) of the Migration Act in relation to those other activities, or the Tribunal was satisfied that the applicant engaged in those activities for some reason other than enhancing his refugee claims. Given that the Tribunal was aware of the requirements of s 5J(6), it is unlikely that the Tribunal made the first error.
It follows, in my view, that the Tribunal must have accepted that there was some reason for his Christian activities (other than his online activities) other than the enhancement of the applicant’s refugee profile.
A further problem is that the Tribunal does not identify what that reason was or discuss it. The reason for the applicant’s religious practice, being different from the simple enhancement of his refugee profile, would have been significant in assessing his overall credibility. The limited nature of the application of s 5J(6) left open a wide field for discussion which the Tribunal did not explore and needed to in order to complete the review.
I conclude, therefore, that the Tribunal fell into error in finding that the applicant had faked his interest in Islam and was faking his interest in Christianity. The error plainly goes to jurisdiction and the applicant should receive the relief he seeks.
Ground 5 – did the Tribunal err in failing to comply with s 424AA and/or s 425 of the Migration Act?
Applicant’s contentions
In SZNKO v Minister for Immigration and Citizenship,[78] Flick J considered the obligations imposed by s 424A and s.424AA of the Migration Act and their interaction as follows:[79]
[78] [2010] FCA 297.
[79] At [8]-[12].
… Section 424AA “creates no imperative duties; rather, it is an enabling provision which permits the Tribunal, if it wishes, to give particulars at an oral hearing”: SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 at [22] per Perram J.
The evolution of these two provisions has been recounted by Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, 174 FCR 415 at 429 to 430. After having done so, their Honours observed:
[71]The policy and purpose reflected in s 424A is that the Tribunal should be compelled:
(a)To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b)To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c)To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
[72] It is evident that the same policy and purpose underpin s 424AA.
Section 424AA is only engaged if there is “information” otherwise falling within s 424A.
Section 424A, it will be noted, is expressed in mandatory terms — the Tribunal “must” do those things there specified; s 424AA(a) conveys a discretionary power — the Tribunal “may” give the “clear particulars” there referred to orally to an applicant (SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [24], 103 ALD 589 at 593) and, if it does so, s 424AA(b) then uses the mandatory term “must”. In this way s 424AA(b) attempts to ensure that the “information” communicated orally rather than in writing can be meaningfully addressed. Section 424AA(b)(i), it will be noted, is not an obligation of perfection; it is an obligation to ensure “as far as is reasonable practicable” that an applicant understands the relevance of the “information” in question. Written communication perhaps more readily allows an applicant an opportunity to assimilate information being brought to his attention and to respond; an oral communication of information during the course of what an applicant may regard as a formal hearing may not be susceptible of immediate response or comment. Section 424AA(b)(iii) ensures that an applicant is to be given an opportunity to have “additional time” in which to respond or comment. “[A]dditional time” may be necessary to (for example) collate additional materials to answer the information about which he is being told for the first time or time in which to simply think about what “comment” should be made or how best to “respond”. How much time will be needed will depend upon the nature of the “information” being communicated and an assessment of what is required to meaningfully “comment on or respond”. On occasions, a Tribunal may conclude that the attempts it is making to communicate “information” orally are unsuccessful. In SZMOO v Minister for Immigration and Citizenship [2009] FCA 211 at [30] to [31] it would appear that the Tribunal initially sought to invoke s 424AA but gave up and resorted to communicating the information in writing. See also: SZNLT v Minister for Immigration and Citizenship [2009] FCA 1332 at [40] per Cowdroy J.
The procedural requirements imposed by s 424AA(b) remain valuable procedural safeguards.
But once the Tribunal has complied with s 424AA it is “relieved of the obligation to comply with s 424A by the provisions of s 424A(2A)”: SZNKX v Minister for Immigration and Citizenship [2009] FCA 1407 at [20] per Lander J.
In the present case, the Tribunal is said to have failed to put certain information to the applicant in accordance with s.424AA of the Migration Act. The Tribunal is said to have failed to comply with the mandatory requirements under that provision by:
(a)failing to ensure the applicant understood the significant of those matters to the decision under review: s 424AA(1)(b)(i); and
(b)failing to advise the applicant that he may seek additional time to comment on or respond to the information: s 424AA(1)(b)(iii).
The applicant contends that, in circumstances where the Tribunal failed to comply with those requirements and where the Tribunal chose not to invite the applicant to comment or respond to the “adverse” information under s 424A of the Migration Act, the Tribunal fell into jurisdictional error.
The Full Federal Court in SZTGV v Minister for Immigration and Border Protection[80] dismissed the appeal because it found that the information fell within the exceptions to the requirements imposed by s 424A of the Migration Act because the applicant gave the information to the Tribunal. However, it considered whether in circumstances where s 424A(1) applied, what was said by the Tribunal at the hearing met the requirements of s 424AA(1)(b)(iii) at [55]-[56]. The Full Federal Court imposed strict requirements on the steps required to be taken by the Tribunal in complying with s 424AA(1)(b)(iii). It also approved the general propositions set out by Flick J in SZNKO. It is analogous from those comments that the Full Federal Court would most likely support nothing less than a clear statement of the significance of the information to the decision under review to comply with s 424AA(1)(b)(i).
Particular c.
[80] (2015) 229 FCR 90.
The Tribunal repeatedly asked why the applicant did not “get his hands dirty” with his religious activities as discussed in Ground 3 above, including the following:
(a)“Have you, you know, do you do work with the poor? Do you go out, do you do homeless – stuff with the homeless, you know, drug and alcohol rehabilitation places? Are you- do you do that?”[81];
(b)“Do you do anything that’s not – you know, just helping people, not evangelising, that there’s a gain for you? Do you just go and get your hands dirty and, you know, in the Cross with the homeless people? Not evangelising, not telling them about God but just doing it as a simple act of human kindness?”[82]; and
(c)“So I just have a kind of concern that you appear to be very keen to evangelise on social media and show everybody your face, I don’t see much evidence of working for the poor without having to turn souls. Do you understand my concern?”[83]
Particular d.
[81] Transcript, page 43, lines 45-47.
[82] Transcript, page 44, lines 22-26.
[83] Transcript, page 45, lines 8-11.

In respect to the omission of church in the applicant’s psychologist’s report, the Tribunal asks: “It’s just strange that if you’ve been going to church and it’s helping you, that you wouldn’t have mentioned it here to the psychologist”.[84]
[84] Transcript, page 21, lines 24-25.
In the applicant’s reply the applicant is said to have demonstrated that he needed more time to obtain copies of the later reports from the psychologist which may mention his church attendance. However, he was not offered this additional time by the Tribunal.
The applicant contends that the Tribunal was under a positive obligation to provide nothing less than clear statements of the significance of the information to the decision under review and that the applicant may seek further or additional time to comply with ss 424AA(1)(b)(i) and (iii) of the Migration Act. The Tribunal failed to comply with that mandatory requirement.
Resolution
I prefer the Minister’s submissions in relation to this ground and adopt them.
It should be noted at the outset that a breach of s 424AA is not directly a source of substantive rights.[85] It only becomes material if an obligation of disclosure arises under s 424A which is not met in writing.
[85] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [74] and [91].
In addition, it is uncontentious that for s 424AA to apply, the material in question has to be “information”. The Tribunal’s subjective assessments and thought processes are not information. Similarly, gaps, defects or lack of detail in evidence and doubts about, inconsistencies in, or absence of evidence are not information. Information does not extend to the prospective reasoning of the Tribunal; the information must be information that would be the reason, or part of the reason for affirming a decision (rather than could or might be the reason).[86]
[86] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]; SZTGV at [18].
The applicant relies on two alleged pieces of “information”:
(a)why the applicant was not prepared to “get his hands dirty” and help the poor rather than evangelising online; and
(b)why there was no mention of the applicant’s church attendance in the letter from the psychologist.
It should be noted that the information is framed in the form of a question beginning with the word “why”. That indicates that both issues emanated from the Tribunal as doubts or questions.
In relation to (a) above, it is fairly clear from the Transcript (beginning at the bottom of page 43) that the prompt for the Tribunal’s questioning is that the Tribunal was sceptical about why the applicant was focusing on internet based evangelical programs. In that context, the Tribunal posited by way of a contrast whether the applicant was taking other steps to practise his faith including by working with the homeless. That doubt was explicable because the Tribunal considered that the applicant was taking easy options to try to prove his conversion. The idea of the applicant “getting his hands dirty” was just a shorthand way of identifying the Tribunal’s doubts about the applicant’s evidence and was therefore not information.
In relation to (b), similar considerations apply. The applicant’s evidence was that he went to see the psychologist to address problems the applicant was having while studying. The Tribunal noted that despite having been attending church for a period of three months as “a coping mechanism” there was no mention of how the applicant’s attendance might have been making a difference. The applicant mentioned that he had other letters but when asked whether they mentioned church attendance the applicant did not appear to know. The Tribunal was testing the evidence already provided by the applicant and commenting that the absence of references to the applicant’s church attendance was surprising.
CONCLUSION
The applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. I will make orders in the nature of the writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.
Associate:
Dated: 24 August 2021

File number(s):	SYG 2788 of 2019
Judgment of:	JUDGE DRIVER
Date of judgment:	24 August 2021
Catchwords:	MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant not believed – whether the Tribunal failed to engage with corroborative material, made an unreasonable finding, unreasonably assessed the applicant’s religious conviction or failed to comply with ss 424A or 425 of the Migration Act 1958 (Cth) considered – jurisdictional error established in relation to the application of s 5J(6).
Legislation:	Migration Act 1958 (Cth) ss 5J, 65, 424A, 424AA, 425, 501CA
Cases cited:	BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 Navoto v Minister for Home Affairs [2019] FCAFC 135 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 SZVTC v Minister for Immigration and Border Protection [2018] FCA 824 Tickner v Chapman (1995) 57 FCR 451 WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Number of paragraphs:	141
Date of hearing:	8 June 2021
Place:	Sydney
Counsel for the Applicant:	Ms T Baw
Solicitor for the Applicant:	Kah Lawyers
Counsel for the Respondents:	Mr J Kay Hoyle
Solicitors for the Respondents:	Sparke Helmore

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	24 AUGUST 2021