MZZJO v Minister for Immigration

[2014] FCCA 186

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 186

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – whether Tribunal dealt properly with applicant’s claims in respect of agnosticism and apostasy – Tribunal’s decision to be read fairly and as a whole – criticisms not made out – application dismissed.

Legislation:  
Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577

Applicant: MZZJO

FirstRespondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 508 of 2013

Judgment of: Judge Burchardt

Hearing date: 27 November 2013

Date of Last Submission: 27 November 2013

Delivered at: Melbourne

Delivered on: 20 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Forrester

Solicitors for the Applicant: Holding Redlich

Counsel for the First Respondent: Mr McDermott

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 508 of 2013

MZZJO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an amended application filed 29 October 2013, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 March 2013.  By that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. There are three grounds in the amended application, the particulars of which, as the first respondent submits, to an extent overlap.  All three grounds relate to the way in which the Tribunal dealt with the applicant’s claims to be agnostic.  For the reasons that follow, I think that when read fairly and as a whole, the criticism of the Tribunal’s decision advanced by the applicant cannot be made out, and it follows that the application will be dismissed. 

The Materials before the Tribunal

1. When, as is the case in this instance, the applicant advances detailed and skilled criticism of the Tribunal’s reasoning process based upon alleged failures to deal with various aspects of the applicant’s claim, it is appropriate to look at what materials were before the Tribunal, and the way in which they arose. 

2. The applicant’s Irregular Maritime Arrival Entry Interview is at Court Book (“CB”) 7-22.  The only matters relevant to this application are set at paragraphs 17 and 18 (CB21) where in response to the question “Why did you choose Australia as your destination?”, the applicant answered “We needed to go somewhere where a government could protect us.  We came here for freedom.”  And in further response to the question “What do you think will happen to you if you return to your country of nationality (residence)?”, he answered “It will be bad.  If I wanted to stay in Iran I wouldn’t have risked my life to come here.  I have changed my religion so I will be punished.”   

3. The first articulation of the applicant’s claims in any detail is in his Statutory Declaration set out at CB85-91.  Relevantly, the applicant confirmed that he was born a Shia Muslim, but in his teenage years he started to question Islam. 

4. At university the applicant was forced to undertake Islamic studies.  In his first semester at university he was caught drinking alcohol, and threatened that if he was caught drinking again he would be removed from the campus.  He also had difficulties with the university Herasat because on occasions he was talking to members of the opposite sex.  The harassment by the Herasat increased the applicant’s resentment towards Islam, and as he became more confident in his abandonment of Islam, he began to discuss his views with other students he trusted. 

5. At the start of the second semester, the applicant was told that he was expelled from university, but following intervention by his mother, she was told that the applicant would be permitted to re-enter the university after he had attended compulsory military service and learnt some discipline to the principles of Islam. 

6. Shortly thereafter the applicant began his military service and religious observance was even more marked.  The applicant avoided attending prayers and fasting where possible, and was punished for this, eventually serving an additional three months as a result of his punishment. 

7. The applicant further deposed that he had issues with the Basij who had caught him having consumed alcohol and also being caught in public with his girlfriend (a woman other than his wife).  The applicant said “I was stopped by the Basij and taken to the Basij base (which doubles as a mosque).  On both occasions, I was made sign an undertaking and was released after my mother and brother attended the mosque” (CB87). 

8. The applicant continued by describing a meeting in about September 2011 when he was discussing his views against Islam with a friend Mr A.  Mr A told the applicant to come and join a meeting of persons with similar views, and he did so.  They subsequently attended other such gatherings. 

9. In or around February 2012, the applicant entered a weightlifting competition, and on the entry form was asked to indicate his religion.  He said (paragraphs 20-21 CB88):

   “Given that I had abandoned Islam some time ago I decided not to answer this question.  I did not understand how my religion would be a relevant consideration considering this was a sporting competition.  In protest, I refused to indicate that I was a Shia Muslim.  Instead, I left this question blank.

   … I came in second place.  However, when it came to the award ceremony, I was announced as coming in third place.”

10. When the applicant asked why he had been demoted, he was told this was because he disrespected Islam. 

11. The applicant became annoyed and yelled at the officials in charge of the competition, and was escorted out of the centre by four members of the Herasat of the gymnasium.  One of them asked him if he had a problem with Islam which was terrifying for the applicant.  

12. In April 2012, Mr A and other members of the group gathered at an apartment.  A group of Basij members erupted into it several hours later and the applicant was only able to get away with difficulty.  His hand was injured in the process. 

13. The applicant deposed that he knew the Basij would interrogate the other gathering members and would probably get his details.  He forthwith contacted his brother for assistance and effectively left Iran straight away. 

14. The applicant deposed that if forced to return to Iran he feared arrests, detention and abuse.  He said at paragraph 30 (CB89):

    “… I fear I will be harmed / mistreated by the Iranian authorities, including the police and paramilitary groups such as the Basij.”

15. At paragraphs 31-33, CB90 he said:

    “31.  I fear I will be harmed / mistreated for reasons of my religion as an Agnostic and my un-Islamic views. 

    32.  I fear I will be harmed / mistreated for reasons of my membership to the following particular social groups:

    a.  failed asylum seeker; and

    b. apostasies. 

    33.  I fear I will be harmed / mistreated for reasons of my political opinion.  Having sought asylum in a Western country means I am perceived as being against the Iranian regime.  Further, my un-Islamic views position me against the current Iranian Islamic regime.”

16. The decision of the delegate is at CB108-124. 

17. It would appear (CB110) that the applicant was interviewed on 15 August 2012, and his claim for protection is summarised at CB110-111.  In my opinion it is fair to say that those matters summarised are entirely consistent with the applicant’s Statutory Declaration. 

18. I note that the country information set out by the delegate included at CB118, reference to the circumstances of a 400 member Church of Iran congregation in northern Iran, the Pastor of which faced possible execution as at the date of writing.  The report notes “In 2010 the judiciary had sentenced Nedarkhani to death for “apostasy from Islam” despite the fact that no such crime exists under Iran’s penal code.” 

19. I note that the delegate contrasted the difficulties faced by Iranians who engage in government-disapproved activities in public with those who do so in private.  And I further note that the delegate disbelieved the applicant’s account of the reasons for the applicant leaving when he did.  The delegate noted that the applicant had been contemplating leaving for some two years before he actually did so.  The delegate refused the applicant’s application. 

20. The applicant’s representative’s submissions filed in support of his application to the Tribunal set out at CB135-154 seem to me to be entirely consistent with the materials earlier filed.  At CB143-144 there is an account of matters that have occurred since the applicant arrived in Australia on 19 May 2012.  These included his family relocating to the outskirts of Tehran and selling the Family Restaurant “because of problems” (CB143) and that two persons who had attended the last gathering with Mr A were missing (CB144). 

21. At CB172-178, the respondent’s advisors responded to a letter from the Tribunal inviting comment about matters which might be the reason or part of the reason for affirming the delegate’s decision.  Given the terms of the Tribunal’s decision, it is not necessary to traverse those matters in any detail at this stage. 

The Tribunal’s Decision

1. The Tribunal set out the Application for Review under Relevant Law at CB181-183.  No criticism is advanced of that analysis of the law in this instance. 

2. The Tribunal stated at paragraph 22, CB183:

   “The applicant arrived in Australia on 19 May 2012.  He was interviewed by the Department on 27 May 2012.  A written account of the interview is on file. …”

3. It is not entirely clear to me whether the written account is the documents contained at CB7-22, which seem to me, in some respects, to contain less information than that recorded by the Tribunal.  I note that at paragraph 25 (CB184), the Tribunal noted:

   “The applicant stated that he was not involved in any political, social, or religious groups.  He stated that he was arrested and detained by the police a few times for “small matters”.  He was asked what matters he was referring to and he indicated that he was once detained for whistling and another time for having videos of TV shows.  The applicant stated that he was thinking of going to a European country but it was too expensive so he came to Australia.  He stated that he left Iran legally using his own passport and he was seeking freedom and protection by the government.  He stated that if he went back to Iran it would “be bad” for him as he had changed his religion and he will be punished.”

4. The Tribunal then summarised at CB184-186 those matters that were contained in the applicant’s protection visa application and the interview with the delegate.  I note paragraph 34, CB185 that:

   “…  The Tribunal has listened to the interview.  The applicant stated he was an agnostic.  He stated that he did not follow a religion but he believed in god.”

5. The Tribunal summarised the matters that occurred at the Tribunal hearing from CB188-192.  At paragraph 50 and following, the following was recorded:

   “50.  … The applicant stated that he started to question religion and its requirements.  He stated that he rejected Shia Islam and he became agnostic.  He stated that he only believed in god.

   51.  The Tribunal asked the applicant how he expressed his belief in god.  He stated that he thanked him or her.  He was asked how he did that.  The applicant stated that every religion has its own method and with his religion there was no particular way to express it.  He stated that it was an inner relationship.  He was asked if he did anything to express his beliefs and views as an agnostic.  He stated that he did nothing to express his beliefs and views.  The Tribunal asked if he had any rituals or activities relating to his beliefs.  He stated that there were no activities in agnosticism.  The Tribunal commented that it was not referring to organised religion.  It commented that persons who identified as Moslems and Christians had their own unique way of expressing their beliefs even if they also participated in organised religion.  He was asked how he expressed his agnosticism.  He did not directly provide a reply.  The Tribunal commented that many citizens from Iran who come to Australia seeking asylum describe themselves as agnostics.  It commented that some provide complicated explanations to describe their beliefs while others appeared not to have thought about the issue or done anything to express their views on religion, god, or agnosticism.  The applicant was asked where he placed himself along that continuum.  He stated he was with the people who did nothing.  He stated that agnosticism does not require any particular activities.  He stated that religion caused misery and it diminished god.  The Tribunal commented that despite the applicant’s claim that he changed his religion, he appeared not to have a religion or do anything relating to religion.  The applicant stated that his god did not require him to do anything.  The Tribunal commented that it may find that the applicant did nothing to express his religion or beliefs because he had no religion or beliefs to express.

   52.  The Tribunal asked the applicant why he decided to be an agnostic.  It commented that he could have rejected religion entirely.  The applicant stated that it was not possible to reject the existence of god.  The Tribunal commented that many people do.  He was asked why he felt compelled to reject his religion but retain his belief in god.  The applicant stated that he believed in god.  He was asked what he thought would happen to his spirit or soul when he died.  The applicant stated that he understood what the member was talking about.  He stated that unlike atheists, agnostics believed that after death the soul still exists.  He was asked where it existed.  He stated that there was no particular place.  He stated that in his religion the soul existed in either this world or some other world.  The Tribunal asked the applicant if he had read any literature relating to the beliefs and views of other agnostics.  He stated that he read ‘The world after death’ by Paulo Coelho.  He was asked how that book influenced or informed his views on agnosticism.  He stated that he read it the year he decided to believe only in god.  He was asked what he learned from the book and how it assisted him to become an agnostic.  He stated that he learnt everything he had discussed with the Tribunal at the hearing. 

   53.  The Tribunal commented that the applicant’s responses relating to his views and beliefs were vague.  The Tribunal commented that he did not appear to have given a great deal of thought to religion.  The Tribunal commented that it may find that he had limited information to provide regarding his beliefs and views relating to religion because he had no real interest in religion.  It commented that it may find that he fabricated claims relating to religion in the belief that it would enhance his protection visa application.  The applicant replied by asking the Tribunal to explain its views on god.  The Tribunal indicated to the applicant that the hearing was undertaken to discuss the applicant’s claims rather than the Tribunal’s views on religion.  The Tribunal commented that it had attempted to discuss religion with the applicant but the applicant only provided superficial and simplistic information on the subject.  The Tribunal further commented that the applicant did not appear to be doing anything relating to religion which would be of interest to the authorities in Iran.”

6. The Tribunal went on to record its discussions with the applicant about Mr A and the group to which he had introduced the applicant and their meetings.  The Tribunal commented that the applicant had failed to mention at his Irregular Maritime Entry Interview, in May 2012, the claim regarding Mr A’s group or the Basiji raid, or the related sequence of events that led him to flee to Australia.  The applicant responded (paragraph 57, CB191) that the person interviewing him had not permitted him to provide the information.  The Tribunal indicated that it had requested a copy of the interview to see if this was correct.  The Tribunal (paragraph 59) raised Country Information about the risks for failed asylum seekers. 

7. In paragraph 60 (CB191) the Tribunal recorded the fact that it gave the applicant’s adviser a copy of a research advice, and noted that the information available to the tribunal suggested that it was commonly outspoken citizens of Iran who expressed views on religion who were at risk of attracting adverse interests from the authorities. 

8. The Tribunal also raised with the applicant (paragraph 64, CB192) the fact that the applicant had said at his arrival interview that he planned to leave Iran two years before he departed.  The Tribunal commented that the applicant had stated that he had met the smuggler about five months before he departed Iran.  The applicant stated his coming to Australia was not planned, and that at the arrival interview, he was not given a proper opportunity to explain the circumstances in Iran, or to provide the reasons why he was compelled to leave the country. 

9. As recorded at paragraph 65 and following, the Tribunal obtained the interview record and listened to it.  The matters emerging from this listening are recorded at paragraphs 66-79, CB193-194. 

10. The Tribunal traversed the applicant’s agent’s post-hearing correspondence referred to earlier, and analysed that response at paragraphs 81-86, CB197.  The Tribunal noted that the applicant’s explanation about a failure to describe his involvement with the anti-government group arose because he was only required to state the “main points” in his claim.  The agent further stated that the applicant’s mentioning only two arrests in Iran was only a minor glitch, and that the fact that he subsequently remembered more matters before the delegate was not a major credit issue. 

11. The agent referred to the applicant’s later claim that two persons known to him from Mr A’s group had been arrested, and that the applicant had not considered it “important” to disclose information of the other two members in his neighbourhood, as he did not know them very well, apart from being from the same neighbourhood. 

12. The Tribunal further noted the agent’s reference to the applicant’s evidence at the arrival interview that he and his family had no involvement in political activities or groups.  The agent indicated that the applicant provided that evidence because he viewed his involvement with Mr A’s group as being an “anti-religious as opposed to political/anti-government activity”. 

The Tribunal’s conclusions

1. The Tribunal set out the applicant’s claims at paragraphs 88-91, CB198.  The primary claim was that the applicant had rejected Islam and become an agnostic.  The applicant claimed not to support the government of Iran and to have participated in activities to express his views, part of which was attending Mr A’s group, which led to him being forced to flee the country.  The applicant also claimed discrimination in the weightlifting competition already referred to, and referred to the various difficulties that the applicant had detailed with the authorities.  At paragraphs 90-91 (CB198), the Tribunal said:

   “90.  The applicant claims that he fears harm in Iran for reasons of religion, relating to his views against Islam, his rejection of Islam, and for being an agonistic; his membership of various particular social groups, with those groups possibly being ‘failed asylum seekers’, ‘apostates’, and ‘failed asylum seeker from the West’; and his political opinion, relating to his perceived views against the government of Iran as a person who sought asylum overseas and for his un-Islamic views against Islamic regime. 

   91.  The applicant claims that individually and cumulatively he faces persecution in Iran for the reasons provided.”

1. At paragraph 92, the Tribunal said:

   “The Tribunal accepts that the applicant was involved in the sport of powerlifting in Iran and that in one competition he was demoted from second to fifth place.  It accepts his claim that he had difficulty making a living in Iran.  It accepts his claim that he does not support the current government of Iran.  However, it is not satisfied that the applicant provided a credible account of his circumstances in Iran and it has formed the view that he contrived most of his major claims to obtain a protection visa.”

2. At paragraphs 94-96 (CB199-200), the Tribunal said:

   “94.  The Tribunal has considered the applicant’s claim that he has rejected Islam and adopted agnosticism.  After discussing these claims with the applicant at the hearing, the Tribunal has formed the view that the applicant has limited interested in religion.  The applicant’s evidence regarding his religious beliefs and how he expresses those beliefs was vague.  He indicated that he did nothing to express his views on agnosticism.  The applicant provided contradictory information regarding his rejection of Islam and whether he expressed views about it.  He has claimed that he actively expressed views against Islam and he suffered the adverse interest of the authorities.  However, he has also claimed that he concealed his views on Islam to avoid the adverse interest of the authorities.  The Tribunal has formed the view, after considering the applicant’s vague and contradictory evidence regarding this matter, that he has little interest in religion, either accepting or rejecting it, and his claims relating to religion were contrived by him to enhance his protection visa application.  The Tribunal does not accept as credible the applicant’s claim that he has a genuine interest in religion, or that he expressed views relating to religion in Iran, or that he was mistreated by the authorities in Iran because of religion, or that he has a genuine interest in agnosticism.  The Tribunal finds that the applicant contrived all his claims relating to religion. 

   95.  The Tribunal has considered the applicant’s claim that he attended Mr A’s group in Iran to express views in Iran to express views against the government of Iran and Islam.  The applicant did not provide the claim consistently.  He neglected to mention it at his arrival interview while later he indicated that it was the main reason he departed Iran.  The applicant claims that he was not provided with the opportunity to raise the claim at his arrival interview.  The Tribunal has considered the inconsistent way in which the claim was presented, and the reasons he provided for not raising the claim at the arrival interview, and it is not satisfied that the claim is credible.  The Tribunal finds that the applicant did not refer to the claim when he first arrived in Australia because Mr A’s group did not exist and the applicant did not attend such a group.  The Tribunal finds that these claims were fabricated later, when the applicant lodged the protection visa application, to enhance the application.  The Tribunal does not accept as credible the applicant’s claim that he was involved with an anti-government or anti-Islam group.  It does not accept as credible his claim that he attracted the adverse attention of the authorities because he attended Mr A’s group or that he was forced to leave the country for this reason.  It finds that the existence of Mr A’s group and all the claims relating to this group were fabricated by the applicant. 

   96.  The Tribunal has considered the applicant’s claim that he was discriminated against and mistreated at his school, the university, the military, and by officials at a power-lifting competition, for expressing views against Islam.  The applicant did not raise these claims at the arrival interview.  He claims that he was not provided with the opportunity to present all his claims at that interview.  However, the Tribunal has listened to the arrival interview and it is satisfied that the applicant had sufficient time and opportunity to raise all his claims during the interview.  It has formed the view that the claims were not provided by the applicant at the arrival interview because he was not targeted or mistreated by the authorities in Iran for expressing views against Iran.  It does not accept as credible the applicant’s claim that he was discriminated against or harassed by officials at his school, the university, the military, or the officials at the power-lifting competition, because he expressed views against Islam.  It finds that all his claims were fabricated by the applicant to enhance his protection visa application.”

3. The Tribunal went on at paragraphs 97-98 to make similar findings dismissing the applicant’s claim of difficulties with the authorities in Iran and that his family was harassed by the authorities because of his involvement with Mr A’s group. 

4. The tribunal stated at paragraph 99, (CB200):

   “99.  The Tribunal has considered the applicant’s claim that he was forced to leave Iran because the Basijis were seeking to find him.  At his arrival interview he did not provide the claim and he indicated instead that he began planning his departure from Iran approximately two years before he left the country.  The Tribunal has already rejected the applicant’s claim that he was a person of interest to the authorities in Iran because he attended Mr A’s group.  In view of those earlier findings, and the inconsistent evidence provided by the applicant regarding the circumstances which led to his departure from Iran, leads the Tribunal to the finding that the applicant was not compelled to leave country because he was a person of interest to the authorities in Iran.  The Tribunal finds that the applicant’s claim that he was a person of interest to the Basij at the time of his departure from Iran, was contrived by him to enhance his protection visa application. …”

5. At paragraphs 100-101 (CB201), the Tribunal continued:

   “100.    The Tribunal has considered the applicant’s broad claim that he did not conform to cultural expectations of appropriate behaviour in Iran.  He has broadly claimed that his non-conformist behaviour attracted the adverse attention of the authorities and society in Iran.  The applicant provided little evidence to support this claim, other than the claims which have already been rejected by the Tribunal, and it is not satisfied that the applicant is indeed the non-conformist person he claims to be.  The Tribunal is not satisfied by the information it has regarding the applicant’s behaviour and circumstances in Iran that he was indeed a non-conformist or a person who attracted the adverse attention of the authorities and society in Iran because he did not conform to cultural expectations.  The Tribunal is not satisfied that the applicant was mistreated or targeted by the authorities or society in Iran because of his behaviour or for being a non-conformist.  The Tribunal finds that these claims were fabricated by the applicant to enhance his application.  

   101.    The Tribunal has accepted the applicant’s claim that he does not support the government of Iran.  It has considered whether the applicant’s views regarding the government of Iran will place him at risk of harm in Iran.  The applicant’s evidence regarding his circumstances in Iran, apart from the evidence which the Tribunal has already rejected, indicates to the Tribunal that the applicant was not implicated in any activities which placed him at risk of attracting the adverse interest of the authorities in Iran.  The applicant’s evidence at his arrival interview indicates that he had no involvement in political activities or any activities against the government of Iran.  The Tribunal has already rejected the applicant’s claim that he was previously, or at the time of his departure from Iran, a person of interest to the authorities in Iran.  The Tribunal finds that similar circumstances will continue for the applicant in the reasonably foreseeable future.  …”

6. The Tribunal went on to dismiss the applicant’s claims, including his claim of fear of harm as a returned asylum seeker.  

7. At CB203-204, the Tribunal addressed the complementary protection provisions but since those findings have not been the subject of any attack in this proceeding, it is not necessary to deal with that matter further. 

The Grounds of the Amended Application

Ground 1 - The Tribunal fell into error when it failed to consider the claim that the appellant had a well-founded fear of persecution on the basis of his agnosticism.

1. The particulars set out under this ground in the amended application are more in essence in the nature of submissions and indeed counsel’s very thorough submissions on the applicant’s behalf traversed exactly the sort of matters that are there set out.  Put globally, they amount to the proposition that the Tribunal simply failed to engage with the question of whether the applicant was agnostic or not and its likely sequelae in the event of his being returned to Iran.  In the written submissions of the applicant, adopted at the hearing before the Court, it is said at paragraph 15:

   “Where a tribunal rejects a claim to be a follower of a religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion is reasonably expected to know. …”

2. Relevant authority was set out including Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [37]-[40] per Bromberg J, and Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [8]-[10] per Jacobson J.

3. It goes without saying that of course I am obliged to follow the remarks of Jacobson J in the Full Court in SZOCT. His Honour recently set out four principles at [7]-[10]:

   “[7] First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the tribunal to explore the level of his or her knowledge and understanding of the religion

   [8] Second, if the tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion.

   [9] Third, where the tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know:

   [10] Fourth, where the tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error

   119 ALD 90 at 93

   if it reveals a sufficient lack of rational or logical connection between the tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.”

4. As with so many matters to do with religion, minds might differ about what agnosticism is.  According to the Oxford Shorter Dictionary, the primary meaning of “agnostic” is:

   “A person who believes that nothing is known, or can be known, of the existence or nature of God or of anything beyond material phenomena.”

5. And the second meaning is:

   “A person who is uncertain or non-committal about a certain thing.”

6. To describe either of those meanings as a religion is not entirely, at least to me, intuitive.  It is a belief system in which it is only believed that things cannot be known.  How would one ever be able to formulate questions giving rise to cogent dogma in such a field?

7. In this case, as indeed in almost every case, not only are the facts and particular circumstances involved unique, but it remains equally very important to remember that each case requires to be considered in the light of those individual and unique facts and circumstances. 

8. In my opinion, it remains a matter of looking at the decision fairly and as a whole to see whether the Tribunal properly engaged with those matters that were raised before it. 

9. It is quite clear that the applicant raised his agnosticism and the interrelated abandonment of Islam.  Indeed as indicated, the country information expressly referred to a Christian leader who as an act of State faced a possible death penalty. 

10. However, in my opinion, the Tribunal’s process of engagement with the applicant’s professed faith was not an unreasonable one.  The Tribunal pointed out that Iranians had expressed a continuum of views as to what agnosticism meant to them and asked the applicant to place himself in a particular part of that continuum.  In the face of the applicant’s professed belief in some form of religious belief, it was not unreasonable, in my view, for the Tribunal to form a view that the applicant’s views were vague and contradictory. 

11. Although this puts the matter shortly, it is in my view apparent that the Tribunal properly appreciated what the applicant was claiming, both as to his agnosticism and as to his apostasy.  The Tribunal did not accept the applicant’s professed agnosticism, and although I think it is fair to say that the Tribunal did not in terms reject the claim of apostasy, the passages I have set out above of the Tribunal’s conclusions fairly reflect a conclusion that the applicant simply not only had not done anything in Iran likely to bring him to the attention of the authorities, but that he would continue not to do so. 

12. In these circumstances, in my view ground 1 is not made out. 

Ground 2 -The Tribunal fell into error when it applied a test to determine whether or not the appellant was agnostic and failed to disclose the criterion for the test.

1. This ground is in many ways closely interrelated with the first ground.  In my opinion the Tribunal, as I have already said, was doing its best to evaluate the applicant’s claims, and for the reasons set out already, in my view the Tribunal did not fall into jurisdictional error in this regard. 

Ground 3 - The Tribunal fell into error when determining that the appellant did not have a “genuine interest in agnosticism” in the absence of a logical connection between the evidence and the conclusions draw. 

1. The particulars appended to this ground are:

   “a.    The Tribunal made a general credit finding, adverse to the appellant, which infected every piece of evidence the appellant gave and the Tribunal has determined that the appellant contrived all of his claims.

   b.    There was no probative material from which it could logically or rationally be inferred that the respondent was not a witness of truth in relation to his agnosticism.

   c.    There is an absence of a logical connection between the evidence relating to the appellant’s alleged agnosticism and the conclusions drawn by the Tribunal about his agnosticism.

   d.    There is an absence of logical connection between the evidence relating to the appellant’s agnosticism and the conclusions drawn by the Tribunal about his well-founded fear of persecution.”

2. In my opinion, the difficulty faced by this ground is that the Tribunal made findings against the applicant based on his credibility, which it seems to me were well open to it.  The Tribunal expressly traversed the applicant’s explanations for his failure to mention some critical aspects of his claims at his original entry interview.  It rejected those explanations for reasons that, in my opinion, were at the very least open to it.  The reality is that the Tribunal did not accept the account given of the meetings with Mr A and his group.  These were very important and were simply not mentioned at the first arrival interview, although they could have been. 

3. Likewise, the Tribunal made finding that the applicant had embellished his difficulties with the authorities.  Once again, this finding was clearly open to the Tribunal on the materials. 

4. Similarly, the Tribunal’s finding that the applicant did not leave Iran because of the alleged incident with the Basij was wholly understandable, given the applicant’s original revelation that he had been contemplating leaving for approximately two years, and had been in contact with the people smugglers some five months before he actually left.

5. The applicant’s claims were, in a sense, part of a continuum.  What he was saying was that he had started off by having reservations about Islam and these had gradually increased over time to a point where he had become agnostic and apostate.  It was the applicant’s case that his involvement with like-minded persons had given rise to the pressing and urgent necessity to leave Iran. 

6. Given that the Tribunal, for reasons that do not appear to me to be open to effective challenge, concluded that all the critical latter events did not occur, there was nothing irrational or illogical in the Tribunal determining that earlier parts of the applicant’s recitation were likewise inventions.  The Tribunal rejected the applicant’s evidence in relation to his alleged agnosticism and apostasy in any event. 

7. Even if it had not been the case, in view of the inconsistencies that, in my view, are not open to challenge and in view of the fact that the applicant himself initially claimed to have no personal or political profile of interest to the authorities, the Tribunal’s decision would stand in any event. 

Conclusion

1. For the above reasons, in my opinion the criticisms advanced of the Tribunal’s decision are not made out, and I will order that the application be dismissed with costs.  

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  20 February 2014