EXL19 v Minister For Immigration and Anor (No.2) - [2021] FCCA 50

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXL19 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2021] FCCA 50

Catchwords:

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) (Protection) visa (SHEV) – whether the Authority failed to consider the real risk of harm faced by the applicant as an apostate under Iran law and therefore constructively failed to review the applicant’s claims under the refugee and complimentary protection criterion – whether there was an insufficient logical or evidentiary basis for the Authority to find that the applicant was not a “genuine” Christian after finding the applicant was baptised, attended Bible classes and church services – whether there was an insufficient logical or evidentiary basis for the Authority to conclude that the applicant was ignorant of the elements of an adherent to the religion might reasonably know regarding the refugee criterion – whether the Authority misapplied s 5J(6) of the Migration Act 1958 (Cth) by finding the applicant’s political and social media activities in Australia was for the purpose of strengthening his claims under the refugee criterion or alternatively, failed to consider the claims under the complimentary protection criterion – whether the Authority misapplied s 5J(3)(i) of the Migration Act 1958 by finding the applicant should modify his behaviour so as to avoid a real chance of persecution – whether the Authority erred by failing to distinguish the applicant’s claims as non-practising Muslims and apostates under refugee criterion from the complimentary criterion pursuant to s 5J(6) of the Act – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(6), 36(2)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 501

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 203 ALR 112

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197

ALR 389

EXL19 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs and Anor [2020] FCCA 1225

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZJGV and Anor (2009) 238 CLR

642

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

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

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

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCA 774

Applicant:

EXL19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3251 of 2019

Judgment of:

Judge Humphreys

Hearing date:

2 December 2020

Date of Last Submission:

2 December 2020

Delivered at:

Parramatta

Delivered on:

22 January 2021

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Counsel for the Respondents:

Mr Kaplan

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application is dismissed.
Direct the Applicant to file any Affidavits in relation to the First Respondent’s Cost Application on or before 19 February 2021.
The matter is listed at 11:30am on Friday 5 March 2021, for argument in relation to the Costs Application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3251 of 2019

EXL19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Iran. In early 2013 the applicant started going out with a divorced woman. The applicant claims that he was the victim of blackmail as a result of films and photographs of him in a compromising situation with the woman. The applicant fears having been reported to Iranian authorities for immoral conduct.
The applicant left Iran and travelled to Malaysia, and then on to Indonesia. The applicant paid a people smuggler for a place on a boat that was headed to Australia. That boat, known as SIEV 794, began to take on water whilst in Indonesian territorial waters, approximately 67 nautical miles from Christmas Island. The applicant, along with a large number of other persons, were rescued by Australian naval warships on 16 July 2013. Regrettably, two passengers on the boat perished when the boat capsized. The applicant was taken to Christmas Island and arrived there on 17 July 2013 and was taken ashore.
It is common ground that the applicant was placed in immigration detention as an unauthorised maritime arrival. The applicant remained in immigration detention initially at Christmas Island until he was moved to Darwin. The applicant was released from immigration detention into the community on 4 September 2013.
On 13 June 2017 the applicant lodged an application for a Safe Haven Enterprise (subclass 790) (Protection) visa (“SHEV”). On 11 September 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 6 November 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.

Interlocutory Judgement.

The matter was the subject of a previous hearing in relation to an application to amend the Grounds of Judicial Review and for an adjournment of the final hearing. Those issues were considered and leave to amend the Grounds of Judicial Review rejected in EXL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2020] FCCA 1225 (“EXL19”). This judgement should be read in conjunction with the previous judgement. This judgement deals with the remaining Grounds of Judicial review not previously considered.
A matter of clarification has been brought to my attention that arises in relation to the jurisdiction of the Court to hear an application for Habeas Corpus in relation to the applicant. The Court stated in EXL19 at [44] that the application for Habeas Corpus was a collateral attack on the migration decision which was not properly vested in the Court. The Court made this statement, not on the basis that the Court did not have any jurisdiction to hear an application for Habeas Corpus, rather, that the applicant was not in custody following his release into the community on bridging visas and the Court was not satisfied that the jurisdiction of the Court to hear such an application was properly enlivened.

The Immigration Assessment Authority’s Decision

The Authority’s decision runs to some 15 type written pages. Paragraphs 2 through 25 of the Authority’s decision deal with the information that was before it. Paragraphs 6 through to 11 of the Authority’s decision deal with issues relating to the SHEV interview carried out by a Departmental Officer. The Authority concluded that it was not satisfied in all the circumstances that an interview with the applicant was required.
Paragraph 12 of the Authority’s decision sets out the applicants claims. They can be summarised as follows:
·The applicant is an Iranian national born into a Shia Muslim family. The applicant lost faith in any religion when he was about 15 or 16 years old.
·In 2011 the applicant met and fell in love with an Armenian Christian girl ‘J’. The applicant was unable to marry ‘J’ as his parents would not consent. During the relationship, the applicant learnt about Christian principles.
·In early 2013 the applicant started going out with a divorced woman. The woman threatened to show films and photographs of him in bed with her and demanded money. This continued and the applicant became scared and he decided to leave Iran in 2013.
·After arrival in Australia the applicant came to know many Christians. The applicant started attending Liberty Baptist Church. After about one and a half years, in May 2015, the applicant was baptised and states that he became Christian.
·The applicant is actively involved in sharing Christian values on social media, such as Facebook and his family are aware of his conversion. The applicant claims to have evangelised two friends in Australia and his brother and sister-in-law in Iran.
·The applicant fears being persecuted if he returns to Iran and that it is very likely someone may have reported him to the authorities in Iran.
After setting out portions of the relevant law, at paragraphs 15 through to 18 of its decision, the Authority accepted the applicant’s identity as claimed. The Authority was also satisfied that the applicant had an opportunity to put forward his claims during the SHEV interview.
Paragraphs 19 through to 26 of the Authority’s decision deal with events in Iran. The Authority accepts that the applicant grew up in a Muslim family. The Authority accepts the applicant’s evidence regarding his relationship with ‘J’, and that he was exposed through her to Christian beliefs. At paragraph 21 of its decision, the Authority found the applicant’s claims about being extorted for money by a woman he met and his response that he would not pay any more money because he was flying out of Iran soon, unpersuasive. At paragraph 25 of its decision, the Authority did not accept that the events relating to the woman of the alleged extortion occurred, or that that was the reason the applicant left Iran.
At paragraph 22 of its decision, the Authority finds the applicant’s evidence in relation to issues with the Basij unpersuasive as it was lacking in detail with regards the incident he recounted. At paragraph 26 of its decision, the Authority does not accept that the applicant was arrested as claimed, but was prepared to accept that the applicant engaged in behaviours which came to the attention of authorities, such as fraternising with women in public, or drinking alcohol, he may experience issues with the security authorities. The applicant may suffer low level harassment if he continues with these behaviours upon return. However, the Authority finds that the applicant was not of interest to Iranian authorities for any reason in 2013 when he departed the country.
Paragraphs 27 through to 40 of the Authority’s decision, deals with the applicant’s religious beliefs. At paragraph 27 of its decision, the Authority notes that the applicant claims that he converted to Christianity after arriving in Australia, and fears that he will be persecuted upon return to Iran as a result of his conversion.
At paragraph 28 of its decision, the Authority recounts the applicant’s evidence at his SHEV interview about being attracted to Christianity. The Authority noted that the applicant’s evidence had the quality of a rehearsed speech and was extremely general in nature. At paragraph 29, of its decision, the Authority noted the claims of the applicant, of being a regular attendee at the Liberty Baptist church and being baptised in May 2015. The Authority noted the claim that the applicant attends Bible study in the evenings on Tuesdays and Thursdays. The Authority noted that the applicant’s claims of attending the church since his release into the community contradicts his evidence at the SHEV interview.
At paragraph 30 of its decision, the Authority notes evidence given by the applicant as to his knowledge of Christianity. The applicant was unable to recite the Lord’s Prayer. At paragraph 31 of its decision, the Authority noted 2 letters provided by a Pastor P from the Liberty Baptist Church. The letters confirm that Pastor P has known the applicant since May 2015, the applicant was baptised in June 2015, his attendance at Sunday Bible study classes, Tuesday and Thursday bible study classes and the completion of 55 subjects.
At paragraph 34 of its decision, the Authority accepted that the applicant was baptised as claimed and that he has attended church services and Bible classes as claimed. The Authority noted that there was no information about attendance at any other church until May 2015 and that the applicant did not commence Bible studies until 2017, very shortly after receiving a letter from the Department inviting him to apply for a protection visa. The Authority considers the timing of the applicant’s attendance is more than merely coincidental and highly significant. The Authority was concerned that although the applicant may have attended Christian activities, his evidence was not reflective of an active or genuine engagement with Christianity.
At paragraph 35 of its decision, the Authority noted that despite claims of the applicant being active on Facebook about his Christian activities, no documentary evidence was submitted in support of this claim. At paragraph 36 of its decision, the Authority notes claims made by the applicant of having engaged in evangelical activities but does not accept that he has evangelised his family members. At paragraph 37 of its decision, the Authority did not accept that the applicant’s Christian activities would be known to Iranian authorities as he has not posted information about Christianity on social media.
At paragraph 38 of its decision, the Authority concluded that it was not satisfied that the applicant’s Christian activities have not been carried out for any reason other than to gain a favourable migration outcome. Rather, they were engaged in for the purposes of strengthening his claim to be a refugee. Accordingly, the Authority disregarded them under

s 5J(6) of the Act.
At paragraph 40 of its decision, the Authority concluded that the applicant had not experienced harm in Iran for religious reasons and that this would not occur if he returns. At paragraphs 40 through to 44 of its decision, the Authority discusses risks associated with the applicant’s return as a failed asylum seeker. The Authority concluded that the applicant does not face any risk of harm as he is of no interest to Iranian authorities.
Paragraphs 47 through to 52 of the Authority’s decision, deal with complimentary protection considerations. The Authority was satisfied that the applicant’s activities at the Liberty Baptist Church would not give rise to a real risk of harm if he returned to Iran, nor would the fact that he would return as a failed asylum seeker. As the Authority was not satisfied that the applicant had a genuine interest in Christianity, there was not a real risk that he would seek to pursue the faith or engage in other Christian activities if he returned. Accordingly, the Authority was not satisfied that the applicant faced a real risk of the arbitrary deprivation of his life, the death penalty, torture or cruel inhuman or degrading treatment or punishment. Accordingly, the Authority found that the applicant did not attract protection obligations under either s 36(2)(a) or (aa) of the Act and affirmed the decision of the delegate.

Remaining Grounds of Judicial Review

The remaining grounds of judicial review requiring determination are as follows, but numbered by reference to the amended grounds of review attached to the applicants affidavit filed on 28 September 2020:
Ground Three
The IAA failed to consider the real risk of harm faced by the applicant as an apostate under Iran law and therefore constructively failed to review the applicant’s claims under the refugee and complimentary criterion.
Ground Four
There was an insufficient logical or evidentiary basis for the IAA to find that the applicant was not a “genuine” Christian after finding the applicant was baptised, attended Bible classes and church services.
Ground Five
There was is an insufficient logical or evidentiary basis for the IAA to conclude that the applicant was ignorant of the elements an adherent to the religion might reasonably know regarding the refugee criterion.
Ground Six
The IAA misapplied s 5J(6) of the Migration Act 1958 (Cth) by finding the applicant’s political and social media activities in Australia was for the purpose of strengthening his claims under the refugee criterion or alternatively, failed to consider the claims under the complimentary criterion.
Ground Seven
The IAA misapplied s 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant should modify his behaviour so as to avoid a real chance of persecution.
Ground Eight
The IAA erred by failing to distinguish the applicant’s claims as non-practising Muslims and apostates under refugee criterion from the complimentary criterion pursuant to s 5J(6) of the Migration Act 1958 (Cth).

Consideration

Just prior to the commencement of the hearing on 2 December 2020, Counsel for the applicant provided to the Court a document entitled “The Applicant’s Oral Submissions”. A copy was provided to Counsel for the first respondent at 9.48 am. This document runs to some 12 pages and is in excess of the usual 10 page limit on written submissions. This document is in addition to written submissions filed by the applicant on 12 May 2020. Neither the Court nor Counsel for the first Respondent had time to digest this document and at the commencement of the hearing, were unaware if the document sought to raise additional arguments other than those contained within the applicant’s written submissions.
The Court considers this tactic to be inappropriate and not in keeping with the Courts usual processes of written submissions being provided by the applicant 14 days prior to the hearing and the first respondent providing written submissions 7 days prior to the hearing. Accordingly, leave was granted to Counsel for the first respondent to file additional written submissions dealing with any fresh arguments not exceeding 3 pages within 7 days and Counsel for the applicant to file any further submissions in reply within 14 days. The result however, is that any judgement is unlikely to be finalised before the years end. This is unsatisfactory to the Court and the parties and has resulted in yet a further delay to the finalisation of the matter.
The use of this tactic is to be discouraged. It seeks to subvert the Court’s well established case management process. It creates additional work for the Court and the first respondent’s legal representatives. If its use were to result in an adjournment of a matter, then issues as to responsibility for any costs thrown away would need to be considered, including consideration of personal costs orders against Counsel. It may also result in the receipt of any such document and any fresh matters raised therein being rejected.
While further written submissions were received from the first respondent, no further submissions were received from the applicant. In these submissions, Counsel for the first respondent contended that any reliance on DVG16 v Minister for Immigration and Border Protection [2018] FCCA 1461 was misplaced. The Authority found that the applicant was a ‘non-practicing Muslim’ not a convert to Christianity at paragraphs 37 to 38 and 40 of its decision. The Authority deals with the non-practising claim by finding based on country information he was not at risk. The Court is satisfied for the reasons set out below that the Authority dealt with the applicant’s claim of being an apostate due to his conversion to Christianity, and rejected it.
Given the nature of the claims of jurisdictional error made in this Court on behalf of the applicant, it is appropriate to initially set out a number of general propositions.

It is for the applicant to satisfy the Authority that they meet the criteria for being a refugee: see Abebe v Commonwealth of Australia (1999) 197 CLR 501 at [187]. It is well established that the Authority is not required to accept uncritically any and all claims made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]. Further, it is acceptable for the Authority to have regard to prior findings in considering whether an applicant meets the complimentary protection criterion: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [245]-[246].
Unreasonableness is where a decision maker has come to a decision that no reasonable decision maker could come to, or where the decision lacks an ‘evident and intelligible justification’: see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [76]. The test for unreasonableness is stringent and will only arise in rare cases: see Li at [30] and [113]. If different minds might reach different conclusions on a jurisdictional fact then this is insufficient for a conclusion to be illogical or irrational: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131].
Lastly, the inference that the Authority has failed to consider an issue may be drawn from a failure to expressly deal with the issue in its reasons. That inference however, should not be too readily drawn. It may be unnecessary to make a finding on a particular point if it is subsumed in findings of greater generality: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].
Ground 3 alleges that the Authority failed to consider the risk of harm to the applicant as an apostate under Iranian law, and therefore constructively failed to review the applicant’s claims under both the refugee and complementary protection criterion.
Counsel for the applicant submitted that as a result of the applicant being baptised, he became an apostate under Iranian law and faced a real risk of the death penalty upon his return. It was submitted that this was a clearly articulated claim and that the Authority had failed in its statutory task by not dealing with that claim: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. Department of Foreign Affairs and Trade (“DFAT”) Country Information Reports on Iran dated 21 April 2016 and 7 June 2018 were tendered to the Court. At paragraph 39 of its decision, the Authority referred to the 2016 report which assessed that it was highly unlikely that the government monitored religious observances by Iranians. It was submitted that the Authority did not have a reference to the 2018 DFAT report at page 25, paragraph 3.44 which states as follows:
Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld a decision of a criminal Court in Araq to sentence a 21-year-old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release he did if he did so. The death sentence had not been carried out as of March 2018...
Counsel for the first respondent submitted that the Authority gave extensive consideration to the applicant’s claim to fear serious or significant harm on account of his religious beliefs at paragraph 17 to 40 of its decision. The Authority considered all of the evidence, including the applicant’s attendance at church, his baptism, and his attendance at Bible reading classes. The Authority noted that the applicant was able to recite no more than a brief portion of the Lord’s prayer. The Authority was not satisfied that the applicant posted information on social media about Christianity and that he did not evangelise his family members.
At paragraph 37 of its decision, the Authority was not satisfied that the applicant was a genuine follower of the Christian faith or that he had informed his family or friends in Iran that he converted to Christianity. The Authority was not satisfied that the Iranian authorities would be aware of the applicant’s activities in Australia or that he would come to their attention.
The Authority concluded that it was not satisfied that the applicant had genuinely converted to Christianity nor that he would do so in the reasonably foreseeable future. The Authority was also not satisfied that the applicant would seek to practice Christianity in Iran if he were to return. The Authority was satisfied that the activities engaged in by the applicant in Australia were for the purposes of strengthening his claim to be a refugee.
Contrary to the applicant’s submissions, the first respondent submits that the Authority did not fail to have regard to the 2018 report. The Authority referred to that report in various parts of its reasons. It is submitted that even if the Authority did fail to take into account the 2018 DFAT report, (which is not admitted), it was immaterial to and was not relied upon, in support of its findings of fact. The Authority was not satisfied that the applicant would continue Christian activities in Iran if he returned and that the applicant had not abandoned Islam, but merely did not participate in Islamic activities.
It should be noted that the last three dot points in paragraph 12 of the Authority’s decision, set out the applicant’s claims regarding his conversion to Christianity, including his church attendances, his baptism and his sharing of Christian values on social media. The last dot point states that the applicant fears being persecuted if he returns to Iran. The Authority then goes on to instruct itself at paragraphs 13 and 14 of its decision, as to the meaning of persecution under s 5J of the Act and at paragraph 47 of its decision, as to the meaning of a real risk of significant harm under s 36(2A) of the Act as it applies to the complimentary protection criterion. This includes a risk of the death penalty being carried out.
The Court is satisfied that the Authority did turn its mind to the risks associated with the claim of apostasy. It did so by carefully analysing the evidence and forming a view that the applicant was not a genuine convert to Christianity. The Court is satisfied that its reasoning was not illogical, irrational or so unreasonable that no other reasonable decision-maker could come to that conclusion. The Court is satisfied that the claim of apostasy was dealt with in findings of a greater generality and that it was not necessary for it to be dealt with in detail, given that at the last dot point of paragraph 12 of its decision, the Authority recorded that the applicant feared being persecuted if he returns to Iran, and it is very likely someone may have reported him to the authorities in Iran. Ground three reveals no jurisdictional error.
Ground four asserts that “there was an insufficient logical or evidentiary basis for the IAA to find the applicant was not a “genuine” Christian after finding the applicant was baptised, attended Bible classes and church services”.
Counsel for the applicant asserts that the findings of the Authority that the applicant was not a genuine Christian are unreasonable: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. It was submitted that having found that the applicant was baptised, went to church and engaged in Bible studies that the finding that the applicant was not a genuine follower of the Christian faith was legally unreasonable. This applies to both the refugee criteria and the complimentary protection criteria.
Counsel for the first respondent submits that the applicant merely makes bald assertions of jurisdictional error without any analysis. The adverse findings and observations made by the Authority at paragraph 29 and paragraphs 33 to 36 of its reasons, supply the evident or intelligible justification for the conclusion that the applicant was not a genuine convert to Christianity. The applicant’s submissions entirely overlook those adverse findings and observations. The suggestion that the Authority did not deal entirely with the claim of apostasy under the complimentary protection criteria at paragraph 49 of its decision, is wrong. The Authority already found that the applicant was not a genuine convert to Christianity. The Authority found that the applicant would not face significant harm by Iranian authorities on account of any Christian related activities engaged in, while in Australia. Further, there was no real risk that the applicant would engage in such activities in Iran.
As indicated above, the Court is satisfied that the factual findings of the Authority that the applicant was not a genuine convert to Christianity, were not illogical, irrational or legally unreasonable. The Court is satisfied that there was an evident factual basis for the Authority to come to the conclusions that it did based on an analysis of the totality of the evidence before the Authority. Having satisfied itself that the applicant was not a genuine convert to Christianity, and that Iranian authorities would not be aware of his activities in Australia, it was reasonably open to the Authority to find that he did not face any real risk of significant harm. Further, as the applicant was not a genuine convert to Christianity he would not engage in evangelising or social media posts in support of Christianity upon his return. Ground four reveals no jurisdictional error. If anything, it is simply a disagreement with the findings of conclusions of the Authority and invites this Court to undertake merits review.
Ground five asserts that there was an insufficient logical or evidentiary basis, for the Authority to conclude that the applicant was ignorant of the elements of an adherent to the Christian religion might reasonably know, regarding the refugee criterion.
Counsel for the applicant submits that given the finding by the Authority at paragraph 30 of its decision, that the applicant “did demonstrate some knowledge of Christianity during the SHEV interview”, this was not a proper basis for the Authority to find that the elements of which the applicant was ignorant are elements that adherent to the Christian religion might reasonably be expected to know. Reliance is placed on Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [39]. In that case, it was stated that:
“…there must be a basis for concluding that the particular elements of doctrine in question, are elements that adherents to the religion in the applicants position might be reasonably expected to know.…”
Where the Authority has material in the applicant’s answers that differs in matters of expression, emphasis or detail however the issue becomes more complex. It was submitted that the findings at paragraph 30 of the Authority’s decision, did not form a sufficient basis for the Authority to conclude that the applicant was not a genuine adherent.
Counsel for the first respondent submits that the applicant relies on the Authority statement at paragraph 30 of its decision, that he “did demonstrate some knowledge of Christianity during his SHEV interview”. That statement cannot be read in isolation. The Authority also made comprehensive findings that undermine the applicant’s genuine interest to convert to Christianity at paragraphs 29 and 33 to 36 of its decision. These included findings that the applicant’s evidence was “extremely general” and “had the quality of a rehearsed speech”. The applicant’s responses gave the appearance of having been memorised, rather than expressions of genuine belief.
This was not a case of the Authority setting itself up as an arbiter of doctrine and applying some standardised or assumed level of knowledge: see MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [446]-[447]. Rather, the Authority reached a conclusion about the applicant’s engagement Christianity after taking into account the delegate’s exploration of the topic with him without any preconception as to what knowledge all believers will demonstrate: see Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (“SZLSP”) at [374]. Further, the Authority did not confine itself to an assessment of the applicant’s knowledge of Christianity. The Authority had regard to the lack of detail in Pastor P’s letters, the applicants baptism having taken place well after conversion (contrary to Christian teaching), the applicant not being a member of the “Ex-Muslim Council of Australia”, the applicant’s regular attendance at church having commenced after he was invited to make a protection visa application and the rejection of his evidence that he actively posted information about Christianity on social media and evangelised his family members. The Authority’s findings on factors other than the applicant’s knowledge of Christian tenants is “a strong indicator that [it] has conducted legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge”: see SZLSP at [375].
The Authority’s conclusion that the applicant was not a genuine adherent of Christianity was based on an overall assessment of his answers to the delegate at his SHEV interview along with other matters such as concerns as to the timing of his involvement in Christian activities relative to the invitation being given to him to apply for a protection visa. The Court is satisfied that the finding is not so unreasonable that no reasonable decision-maker could come to it. There is a detailed review and discussion of the applicant’s involvement with Christian activities and his knowledge of basic Christian tenants. The fact that the applicant was unable to recite even the opening sentences of the Lord’s Prayer, is a matter upon which the Authority was entitled to rely upon as an evidentiary basis that the applicant was not an adherent to the Christian religion. Ground five reveals no jurisdictional error.
Ground six asserts that the Authority misapplied s 5J(6) of the Act by finding that the applicant’s political social media activities in Australia was for the purpose of strengthening his claims under the refugee criterion or alternatively, failed to consider the claims under the complimentary criterion.
Submissions by Counsel for the applicant merely refer to Minister for Immigration and Citizenship v SZJGV and Anor (2009) 238 CLR 642 at [9] and [64]. It is submitted that the finding by the Authority at paragraph 38 of its decision, is incorrect, however no real basis for that submission is provided.
Counsel for the first respondent submitted that the Authority’s application of s 5J(6) of the Act is devoid of any error. That subsection requires the first respondent (and the Authority on review), to disregard any conduct engaged in by a visa applicant in Australia “unless the person satisfies the Authority that the person engage in conduct otherwise than for the purpose of strengthening the person’s claim to be refugee”. The onus is therefore on the applicant to persuade the Authority that he engaged in such conduct otherwise than for the purpose of strengthening the claim to be refugee. The Authority’s findings at paragraph 38 of its decision, make plain that the applicant failed to discharge the onus.
The contention that the Authority failed to take into account the applicants “political social media activities in Australia” in assessing whether he is owed complimentary protection is misconceived. The Authority found that the applicant had not posted information on social media about Christianity. That finding necessarily negated any claim that the applicant was owed complimentary protection on account of his social media activities. Contrary to the applicant’s submission, he never made any claim that he was owed complimentary protection on account of his “political” activities in Australia. So far as the applicant’s involvement in Christianity was concerned, the Authority dealt with that topic and rejected it.
The Court is satisfied that the Authority’s approach to this issue is entirely orthodox. The Authority considered the evidence and came to the view that the applicant was not a true convert to Christianity. It is therefore relatively unsurprising that the Authority then went on to find that it would disregard such conduct as required by s 5J(6) of the Act. This statement was the inevitable conclusion of the rejection of the applicant’s claims to have converted to Christianity. The Court is not satisfied that the finding is illogical, irrational or unreasonable.
Ground seven argues that the Authority misapplied s 5J(3)(i) of the Act by finding that the applicant “should modify his behaviour so as to avoid a real chance of persecution”. Counsel for the applicant submits that the Authority failed to consider whether the applicant would be forced to modify his religious beliefs as a non-practising Muslims or his political opinion or membership of a social group such as males in Iran so as to avoid persecution. Reference is made to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at [29]. That case determined that it was wrong for the Authority to expect that applicants take reasonable steps to avoid persecutory harm. It was submitted that the Authority was wrong by finding that the applicant had not converted to the Christian faith, nor was it satisfied that he would seek to practice Christianity in Iran if he were to return.
Counsel for the first respondent submitted that the argument proceeds from a false premise. The Authority made no finding that the applicant should or would have to modify his behaviour to avoid a real chance of persecution. In fact, the Authority found that the applicant was not a convert to Christianity and would not practice that religion in Iran. This is not a case that the Authority found the applicant would practice Christianity on his return to Iran but that he does not face a real chance of persecution because he may do so discreetly.
The Court accepts the submission of the first respondent. The Authority found that the applicant was not a genuine convert to Christianity and would not seek to practice Christianity upon his return. Accordingly, there was no behaviour that would be required to be modified. Accordingly, there was no risk to the applicant from the practice of Christianity upon return to Iran. Ground seven reveals no jurisdictional error.
Ground eight asserts that the Authority failed to distinguish the applicants claims as a non-practising Muslim and apostate under the refugee criterion from the complimentary protection pursuant to s 5J(6) of the Act.
Counsel for the applicant asserts that the Authority had misunderstood misconceived or misapplied DFAT country information, which found that in March 2017, the Supreme Court upheld a decision of a criminal Court in Iraq to sentence a 21-year-old man to death for apostasy. It was submitted that that was not enough for the Authority to simply dismiss the applicant’s claims for protection as an apostate under the complimentary protection criterion. The Authority failed to appreciate that the considerations under the refugee criterion are different to the kind of considerations under the complimentary protection criteria. It is asserted that the Authority erred by failing to examine entirely the applicant’s claims of apostasy under the complimentary protection criterion and therefore conflated the findings regarding applicant’s claims regarding apostasy under the refugee criterion with his claims under the complimentary criterion.
Counsel for the first respondent submitted that there was no conflation of the refugee and complimentary protection criteria. The Authority accurately summarised the statutory test at paragraphs 46 and 47 of its decision, and went on to determine whether the applicant was owed complimentary protection on account of his claim of conversion to or interest in Christianity or Christian activities and his not being a practising Muslim. In doing so, the Authority referred to its earlier findings made in the context of consideration of the applicant’s refugee claims. This approach does not ground jurisdictional error: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56].

The Court agrees with the submission of Counsel for the first respondent. The approach by the Authority was entirely orthodox. The Authority was not satisfied that the applicant was a genuine convert to Christianity. The Authority was not satisfied that authorities in Iran would be aware of the applicant’s Christian activities in Australia. The Authority was not satisfied that the applicant would continue to practice Christianity upon his return. The Authority was not satisfied, based on country information before it, that the applicant would face serious harm for failing to attend Muslim activities or services on religious occasions. This was in circumstances where the applicant had been, for some time, a non-practising Muslim prior to his departure. Based on the applicant’s claims, it was his affair and purported blackmail by a divorced woman that was the cause of him leaving Iran, not any fear from authorities in relation to his non-observance of religious activities. In those circumstances, the Authority was entitled to be reasonably satisfied that the applicant would not face the death penalty for apostasy upon his return, and therefore did not meet the complimentary protection criteria. Ground eight reveals no jurisdictional error.

Conclusion

Accordingly, the application is dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 22 January 2021

CORRECTION (27 January 2021)

The year of Citation was changed from 2020 to 2021
The Date of Delivery was changed from “22 January 2020” to “22 January 2021”