SZSHT v Minister for Immigration - [2013] FCCA 577

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHT v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 577

Catchwords:
MIGRATION – Review of conduct leading to recommendation of Independent Protection Assessor – whether recommendation made according to law – whether the Assessor afforded the applicant procedural fairness – whether the Assessor considered all claims made by the applicant – whether the Assessor took on the role of arbiter of religious doctrine in considering if the applicant was a Christian – no jurisdictional error – application dismissed.

Legislation:
Constitution, s.75
Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7

Cases Cited:
SZQMT v Minister for Immigration and Citizenship& Anor [2012] FCA 840; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152;
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576;
SZILQ v Minister for Immigration and Citizenship [2007] FCA 942;
WALT v Minister for Immigration [2007] FCAFC 2;
Minister for Immigration and Citizenship v SZSLP (2010) 187 FCR 362;
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599;
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437;
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559;
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155;
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347;
Abebe v Commonwealth of Australia (1999) 197 CLR 510;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259;
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51;
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389;
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364;
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263;
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairjasingham (2000) 168 ALR 407

Applicant:

SZSHT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

TROY BARTY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number:

SYG 2799 of 2012

Judgment of:

Judge Emmett

Hearing date:

6 June 2013

Date of Last Submission:

6 June 2013

Delivered at:

Sydney

Delivered on:

21 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Nick Gangemi

Solicitors for the Applicant:

Holding Redlich

Counsel for the Respondents:

Patrick Knowles

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2799 of 2012

SZSHT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

TROY BARTY IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an independent protection assessor (“the Assessor”), dated 16 August 2012 and handed down on 21 August 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Iran and of Christian faith.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.

Background

On 1 November 2011, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 18 November 2011, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 19 December 2011, the applicant made a request for a Protection Obligations Evaluation (“POE”).
On 20 February 2012, an officer of the Department of Immigration and Citizenship (“the Department”) found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 21 February 2012, the POE request was automatically referred for an Independent Protection Assessment (“IPA”).
On 16 August 2012, the Assessor recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 30 November 2012, the applicant filed an application in this Court seeking judicial review of the Assessor’s recommendation.

Legislative framework

The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in submissions of the solicitor for the first respondent, Mr Markus, from the Australian Government Solicitor, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a)     entered Australia at an excised offshore place after the excision time for that offshore place; and
(b)     became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a)     the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a)     for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1]     See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1)     An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)     The power under subsection (2) may only be exercised by the Minister personally.
…
(7)     The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1)     This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)     If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)     In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)     The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)     The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3]     Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4]     M61 (2010) 243 CLR 319 at [70].
[5]     M61 (2010) 243 CLR 319 at [66].
[6]     M61 (2010) 243 CLR 319 at [67].
[7]     M61 (2010) 243 CLR 319 at [73].
[8]     M61 (2010) 243 CLR 319 at [76].
[9]     M61 (2010) 243 CLR 319 at [89].
[10]    M61 (2010) 243 CLR 319 at [78].
[11]    M61 (2010) 243 CLR 319 at [73].
[12]    M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14]    M61 (2010) 243 CLR 319 at [99]-[100]
[15]    Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16]    M61 (2010) 243 CLR 319 at 360-361 [101]-[104].

The applicant’s request for Independent Protection Assessment

The applicant provided a statement in support of her POE request in which she stated the following:
a)The applicant is a 43 year old divorced woman with no children.
b)The applicant was born a Shi’a Muslim and developed an interest in Christianity during middle school.
c)The applicant found a church in Vanak where the priest talked about Jesus Christ and she attended the church four times. She was unable to attend the church regularly as the church was a long distance from her home.
d)The applicant married a Muslim man and divorced from him in 2007. During her marriage she was unable to pursue her interest in Christianity.
e)The applicant then cared for her father until his death in 2010. Before his death, the applicant told her parents that she wished to travel to a Christian country in order to educate herself about Christian beliefs.
f)Following the death of her father in 2010, the applicant cited an occasion on which she attended a book shop in Tehran and inquired about books on Christianity. The shopkeeper appeared offended and the applicant left. When the applicant later returned to the shop, the shopkeeper appeared not to want to sell her any books and followed her when she left. Because the applicant claimed to be from a Sayad family, she was scared that the bookseller would report her (the Sayad family members are said to be direct descendants of the Prophet Mohammad).
g)After the incident in the book shop, the applicant commenced making arrangements to leave Iran, which she did in October 2011.
h)On a separate occasion in Iran, the applicant was a passenger in a taxi with one other female passenger, a male passenger and the driver. The applicant was having a discussion about the differences between Islam and Christianity with the female passenger. The driver of the taxi indicated to the applicant that she should be quiet, before the male passenger, a devout Muslim, began yelling at the applicant. The applicant was then forced to get out of the taxi.
i)On a further separate occasion, a taxi driver deliberately injured the applicant, by driving off while the applicant was exiting the taxi and dragging her across the street. The applicant attributed the driver’s actions as intentional and as a result of the applicant expressing her views about Christianity while in the taxi.
j)The applicant has attended church since her arrival in Australia, and was to be baptised on 6 January 2012. She has been studying books on Christianity written in Farsi, but suffers from headaches as a result of losing her reading glasses while in transit to Australia and lacking a suitable replacement.
k)The applicant fears serious harm, and possibly death, from the Iranian Authorities (including the Etaalat and the Basij) in the event that she was to return to Iran, as a result of her Christian faith. The applicant further fears that the authorities will not protect her upon her return, as she is considered an apostate and as a Christian convert will face the same form of persecution in any part of Iran.
On 4 January 2012, the applicant’s migration agent provided a submission to the Department claiming asylum on the basis that the applicant fears persecution in Iran because of political opinion (her opposition to the government in Iran and her seeking asylum in Australia); her religion (she no longer follows Islam); and, her membership of a particular social group comprising asylum seekers. The submission included various country information extracts.

On 20 February 2012, an officer of the Department found that the applicant did not meet the criteria for being a refugee basically because of its comprehensive adverse credibility findings.

Independent Protection Assessment and conduct leading to recommendation

Following the determination by the officer of the Department, the applicant’s request for a POE was automatically referred for an IPA.
On 23 May 2012 the applicant was interviewed by the Assessor.
The Assessor noted the Department’s file and other materials available from a range of sources.
The decision of the Assessor is accurately summarised by counsel for the first respondent in his written submissions as follows:
“ THE ASSESSOR’S RECOMMENDATION
5. In relation to the Applicant’s claim to fear harm on account of her religion (the only claims relevant to these proceedings) the Assessor held that the Applicant’s claims “contained inconsistencies and many aspects of it were implausible and unconvincing” (CB 181 at [98]). In particular, the Assessor found:
(a) In her interview with the Assessor the Applicant did not mention her religion as a reason for leaving Iran until prompted by the Assessor (CB 180 at [94]);
(b) Her evidence as to when and where she attended Church services in Iran was inconsistent at different stages of the assessment process (CB 181 at [95]-[96]);
(c) There was no evidence of any repercussions following from the incident involving the bookseller (CB 182 at [100]); and
(d) The Applicant’s status as a Sayed would not, alone or in combination with her other characteristics, cause her any adverse consequences (CB 183 at [104]); and
(e) The Applicant’s claim to have been involved in arguments, including her experiences involving taxis, did not amount to persecution (CB 184 at [108]).
6. The Assessor concluded:
I accept that [the Applicant] may have an interest in Christianity but I do not accept that she is a Christian in any practical, committed or sincere way. I accept that she is not a practicing [sic] Muslim and note the country information that although Islam is the state religion, many people in Iran are not practicing [sic] Muslims. I conclude that the level of her commitment to Islam and Christianity respectively has not significantly changed and that her claims in relation to apostasy and Christianity, including her baptism have been developed or undertaken for the purpose of strengthening her refugee claim. On the basis of her evidence, I am satisfied that her practice [sic] and study of Christianity has been extremely limited and inconsistent and that this level of commitment reflects the level of the claimant’s interest in Christianity, and that it is not the result of fear of persecution or harm. Given the low level of her interest in Christianity I am satisfied that if returned to the Iran, as in the past, her religious attitudes (as a Christian or apostate) or her baptism would not come to the knowledge of authorities or others such that it would cause her any difficulties (CB 181 at [98]) (emphasis added).”

Counsel for the applicant also provided an accurate summary of the Assessor’s reasons in relation to the applicant’s claimed Christianity and apostasy. Those submissions are as follows:
“10. The Assessor’s reasons are provided a Statement of Reasons (CB 159-185). In relation to the question of the Applicant’s Christianity and apostasy, the Assessor found that the Applicant has an “interest in Christianity” but is “not a Christian in a practical, committed and sincere way” (CB 181, paragraph 97).
11. In this regard, the Assessor:
(a) accepted the baptism of the Applicant (CB 181 paragraph 97);
(b) accepted that the Applicant was no longer a practicing Muslim (CB 181 paragraph 98);
(c) accepted that the Applicant is a Sadat (CB 183 paragraph 104);
(d) considered that activities undertaken in Australia (of attending church) were done to strengthen the Applicant’s claim, but took these into account because they were not undertaken for this sole purpose (CB 181 paragraph 99);
(e) did not accept certain statements by the Applicant concerning her attendance at church and home church in Iran (CB 181 paragraphs 95-96);
(f) stated that the Applicant’s religious attitudes and baptism would not come to the knowledge of the authorities or others such that it would cause her any difficulties (CB 181 paragraph 98);
(g) stated that it considered a person who has converted to a new faith would generally be more eager to speak of their experiences and emphasize all aspects of their exploration and expression of their faith (CB 181 paragraph 96); and
(h) concluded that the Applicant’s study of religion had been “extremely limited and inconsistent” (CB 181 paragraph 98).

The proceeding before this Court

At the hearing before this Court, the applicant was represented by Mr Gangemi, of counsel.
Mr Gangemi confirmed that the applicant relied on the grounds contained in the amended application, filed on 21 March 2013, as follows:
“1. The Independent Protection Assessor (The Assessor) erred in law by failing to make applicant finding of whether the Applicant was of the Christian faith.
Particulars
a. It was necessary for the Assessor to make the finding, in order to determine if the Applicant would suffer persecution by reason of being applicant Christian.
b. In paragraph 97 of the Independent Protection Assessment (IPA) (CB 181), the Assessor accepted that the Applicant had been baptised.
c. In paragraph 98 of the IPA (CB 181), the Assessor accepted that the Applicant has an interest in Christianity, but then did not accept that she was applicant Christian “in any practical, committed and sincere way”. By making these findings, the Assessor avoided deciding whether or not the Applicant was actually Christian.
d. In paragraph 99 of the IPA (CB181), the Assessor accepted that the Applicant had engaged in conduct relating to Christianity in Australia because of her interest in Christianity and not solely to strengthen her application.
2. The Assessor erred in law by failing to afford the Applicant procedural fairness.
Particulars
a. In paragraph 95 of the IPA (CB 181), the Assessor stated that it did not accept her statement that she had attended church in Iran in 2011, as this was inconsistent with her other evidence. There is no evidence that the Assessor put this to the Applicant.
b. In paragraph 96 of the IPA (CB 181), the Assessor stated that it did not accept that the Applicant attended house church, and if she did whether it held much significance for her, because this was only raised in the interview. There is no evidence that the Assessor put this to the Applicant.
c. In paragraph 98 of the IPA (CB 181), the Assessor stated that it did not accept that she was applicant Christian in any practical, committed and sincere way. There is no evidence that the Assessor put this to the Applicant.
d. In paragraph 98 of the IPA (CB181), the Assessor stated that the Applicant’s claims in relation to apostasy and Christianity were developed or undertaken for the purpose of strengthening her refugee claim. There is no evidence that the Assessor put this to the Applicant.
e. In paragraph 99 of the IPA (CB 181), the Assessor stated that it was satisfied that the Applicant engaged in conduct relating to Christianity in Australia for the purpose of strengthening her claims but that this was not the sole purpose of her actions. There is no evidence that the Assessor put this to the Applicant.
3. The Assessor erred in law and failed to apply the correct legal test by considering that the Applicant would not be persecuted because her religion could be practised discreetly.
Particulars
a. In paragraph 98 of the IPA (CB 181), the Assessor stated that the Applicant’s religious attitudes and baptism would not come to the knowledge of the authorities or others such that it would not cause her any difficulties.
4. The Assessor erred in law by failing to consider an integer of the Applicant’s claim.
Particulars
a. The Applicant claimed that she had denounced and rejected the Islamic faith and therefore was an apostate, and that she would suffer serious harm, including execution, for reason of her being an apostate of Sadat descendancy.

b. In paragraph 98 of the IPA (CB 181) the Assessor accepted that the Applicant was no longer applicant practising Muslim.
c. In paragraph 104 of the IPA (CB 183) the Assessor accepted that the Applicant was of Sadat descendancy.
d. The Assessor failed to give proper and genuine consideration to whether the Applicant by reason of her being an apostate from applicant Sadat family, would suffer serious harm.

5. The Applicant erred in law by taking on the role of arbiter of doctrine with respect to doctrine which is contrary to law.
Particulars
a. The Assessor in the IPA interview conducted applicant line of questioning to establish the Applicant’s knowledge and understanding of the Christian faith.
b. In paragraph 96 of the IPA (CB 181), the Assessor stated that she considered applicant person who has converted to applicant new faith would generally be more eager to speak of their experiences and emphasise all aspects of their exploration and expression of their faith.
c.In paragraph 98 of the IPA (CB 181), the Assessor concluded that the Applicant is not applicant Christian in any practical, committed and sincere way.
d. In paragraph 98 of the IPA (CB 181), the Assessor concluded that the Applicant’s practise and study of Christianity has been limited and inconsistent, and that this level of commitment reflects the claimant’s interest in Christianity.
e. In reaching these conclusions, the Assessor imposed applicant level of doctrinal knowledge that would be required for the Assessor to be satisfied that the Applicant was applicant Christian.

6. The Assessor erred in law by failing to take into account applicant relevant consideration.
Particulars
a. In paragraph 98 of the IPA (CB 181), the Assessor made applicant finding that the Applicant had an interest in Christianity and is not applicant practising Muslim.
b. In paragraph 98 of the IPA (CB 181), the Assessor made applicant finding that the Applicant would not suffer serious harm because of findings in respect of her level of commitment and interest in Christianity.
c. The Assessor failed to consider whether the Applicant would be persecuted by reason of applicant perceived or imputed conversion to Christianity, or applicant perceived or imputed denouncement or rejection of Islam.

Ground 1

In support of Ground 1, Mr Gangemi contended that the Assessor erred in failing to make a finding of whether the applicant was a Christian. Certainly, the applicant claimed to be a Christian and to have been persecuted in the past for that reason and to fear persecution in the future if returned to Iran for that reason.
Mr Gangemi submitted that the Assessor “side stepped” the issue of whether or not the applicant was a Christian by accepting that the applicant may have an interest in Christianity, but not accepting that the applicant is a Christian “in any practical, committed or sincere way.”
Mr Gangemi referred to SZQMT v Minister for Immigration and Citizenship& Anor [2012] FCA 840 (“SZQMT”) as supporting his submission that “side stepping” the determination of an issue can be jurisdictional error.
In SZQMT, Flick J found that in considering a claim by an applicant to be a lesbian, a finding that the appellant did not engage in sexual relationships with the same sex was not sufficient to have disposed of the determination of whether the applicant was in fact a lesbian. However, Flick J acknowledged at [26] that it may have been possible for the tribunal to consider the claim and leave it unresolved where it explained why the claim remained unresolved. That was not the approach of the Assessor in the case before this Court.
The Assessor accepted that the applicant had an interest in Christianity. That is not a finding that the Applicant is a Christian. It is readily possible to have an interest in Christianity without being a Christian. The Assessor made a positive finding that the applicant is not a practicing Christian, nor committed or sincere about being a Christian. Those findings were made in the light of the Assessor’s finding that the applicant did not raise her religious beliefs at interview until prompted by the Assessor. Even then the Assessor found that her responses were “equivocal, sometimes vague and not convincing”. The Assessor also found that her practice and study of Christianity had been “extremely limited and inconsistent” and was not because of a fear of persecution. The Assessor found her present interest in Christianity to be of a “low level” and her interest in Christianity in the past in Iran to be “very limited”. The Assessor concluded that she would not come to the attention of authorities in Iran or others such that it would cause the applicant difficulties. Consequently, the Assessor found that there was not a real chance that the applicant would be subjected to serious harm by reason of her interest in Christianity now or in the foreseeable future if she returned to Iran.
Those findings by the Assessor are a clear rejection of the applicant’s claim to be a Christian. I do not accept the applicant’s submission that the Assessor “side stepped” the determination of the applicant’s claim to be a Christian as was found to have occurred in SZQMT.
The Assessor was required to decide was whether the applicant had a well founded fear of persecution by reason of her religion. The applicant claimed to have converted to Christianity and be an apostate and to fear harm for those reasons. Further, the applicant claimed to be a Sadat, being a female descendent of Mohammad, and therefore at greater risk, having renounced Islam.
A fair reading of the Assessor’s decision record makes clear that the Assessor understood the applicant’s claims and considered them. The Assessor concluded that given the low level of the applicant’s interest in Christianity, the Assessor was satisfied that if the applicant returned to Iran, none of her religious attitudes as a Christian or apostate or her baptism would come the knowledge of the authorities or others such that it would cause her any difficulties. The Assessor found that the applicant’s commitment to Islam and Christianity respectively has not significantly changed and that her claims in relation to apostasy and Christianity, including her baptism, were undertaken for the purposes of strengthening her refugee claims.
The Assessor did not accept that any past harm experienced by the applicant amounted to persecution for the purposes of the Convention. The Assessor concluded that her status as a Sadat would not, alone or in combination with her other characteristics, cause her any adverse consequences.
In the circumstances, the Assessor made findings that were open to it on the evidence and material before it and for the reasons it gave in relation to the applicant’s claim to fear persecution by reason of her religion.
Accordingly Ground 1 is not made out.
In light of the Courts findings on Ground 1, Counsel for the Applicant conceded that Ground 3 and Ground 6 could not succeed and in such circumstances would not be pressed.

Ground 2

Counsel for the applicant submitted that the Assessor erred in failing to afford the applicant procedural fairness by failing to put to the applicant that her credibility was in issue in relation to her claim to have converted to Christianity.
In support, Mr Gangemi read, without objection, the affidavit of Christopher Scott Neilsen, sworn 20 March 2013, annexing a transcript of recordings of interviews with the applicant on 23 May 2012, 21 December 2011 and 18 November 2011.
Relevantly, the transcript makes clear that the Assessor put its concern to the applicant about her claim to have converted to Christianity and the applicant’s responses indicated she understood the nature of those concerns. The relevant part of the transcript is as follows:
Interviewer: Some people when they come to Australia, they convert to Christianity just to advance their claims for refugee status.
Interpreter: I certainly did not do this because of this reason. I would have got baptised in Iran if I was able to but I was not able to get baptised in Iran.
Interviewer: But you only went to church a few times. I know you said you had an interest in Christianity, but that doesn’t sound to me like someone who wants to become a Christian.
Interpreter: Sorry I didn’t understand what you mean, she said.
Interviewer: Well I need to give you an opportunity to comment on concerns I have about your case and one of the concerns I have is that you say you didn’t convert to Christianity just to advance your claims for refugee status in Australia, but what you described to me about going to church a few times in Iran doesn’t sound like someone who is genuinely wants to become a Christian.
Interpreter: I just have to respond or have to say that in Iran things are different…
It is clear from this exchange that the applicant was given an opportunity to address the specific concerns of the Assessor in relation to her conversion to Christianity. Further in the transcript, the Assessor explored with the applicant what Christianity meant to her and asked various open ended questions such as “Tell me what it means to you to be a Christian”; “Why did you chose to go to the Baptist church and not the Anglican church?”; “Tell me some of your favourite parts of the bible or some of your favourite Christian stories”. I reject the submission of counsel for the applicant that those questions in some way suggested a preconceived idea on the part of the Assessor as to what the applicant must know in order to demonstrate that she is a Christian convert.
In relation to the particulars referred to in Ground 2, none demonstrate procedural unfairness on the part of the Assessor.

Particular 2(a)

In relation to particular 2(a), the applicant submits that an inconsistency was not put to her by the Assessor.
However, there is no obligation on the part of the Assessor to put to the applicant an inconsistency that the Assessor finds to exist in her evidence in the course of the Assessor’s evaluation of the applicant’s evidence.
It is well established that the Assessor is not required to give the applicant a running commentary on the Assessor’s view on the applicant’s evidence (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [48]). Further, no breach of procedural fairness is demonstrated, simply because some aspects of the applicants claims were not accepted (See Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592).

Particular 2(b)

Particular 2(b) asserts that the Assessor did not accept that the applicant attended a house church; and that, if she did, it did not hold much significance for her because it was only raised at the interview.
Counsel for the applicant submitted that that matter should have been put to the applicant for comment.
However, the transcript makes clear that the Assessor put to the applicant that it had some difficulty with that claim given that it was made only at the interview and during the exploration of the applicant’s evidence by the Assessor.

Particular 2(c)

In particular 2(c), counsel for the applicant submitted that the Assessor stated that it did not accept that the applicant was Christian in any practical, committed or sincere way and that this was not put to the applicant.

However, the transcript discloses that the Assessor explored the applicant’s asserted practice of her Christianity both in Iran and in Australia. Further, as the extract from the transcript above makes clear, the genuineness of the applicant’s Christian conversion was put to the applicant in terms.

Particular 2(d)

Particular 2(d) asserts that the Assessor failed to put to the applicant that her claims in relation to apostasy and Christianity were developed or undertaken for the purpose of strengthening her refugee claim.

However, again, the extract quoted above demonstrates that the Assessor put to the applicant that some people when they come to Australia convert to Christianity just to advance their claims for refugee status. The applicant’s response that she “certainly did not do this”, makes clear that she understood that this was a matter that she needed to address with the Assessor.

Particular 2(e)

In particular 2(e), it is submitted that the Assessor stated that it was satisfied that the applicant engaged in conduct relating to Christianity in Australia for the purpose of strengthening her claims but that this was not the sole purpose of her actions and that this was not put to the applicant.
In light of the applicant’s claims of relevant conduct in Australia, s.91(3) of the Act obliged the Assessor to consider whether such conduct occurred and the purpose for the conduct. In the event that the Assessor concluded that the conduct was engaged in solely for the purpose of enhancing the applicant’s refugee claims, then the Assessor was bound not to have further regard to that conduct.
Ultimately, the Assessor did accept that the applicant had engaged in the relevant conduct in Australia and that it was undertaken for the purposes of strengthening her claims for protection. However, the Assessor was not satisfied that the sole purpose of her activities was for the purpose of strengthening her claims for protection in circumstances where the Assessor accepted that the applicant had an interest in Christianity.
The Assessor was not required to explain the operation of s.91R(3) of the Act to the applicant ( see SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 [24] per Buchanan J).
Otherwise, the Assessor’s findings in relation to the applicant’s relevant conduct in Australia were open to it on the evidence and material before it and for the reasons given. Further, there was no error in the Assessor’s application of s.91R(3) of the Act and none is alleged.
Accordingly Ground 2 is not made out.

Ground 3

As stated above, in light of the Court’s findings in relation to Ground 1, Ground 3 is withdrawn and no longer pressed.

Ground 4

Ground 4 complains that the Assessor failed to give proper and genuine consideration to the applicant’s claim to be an apostate who is also a Sadat and would suffer serious harm by reason of those claims.
It is well accepted that apostasy may, but need not, involve conversion (see WALT v Minister for Immigration [2007] FCAFC 2 (“WALT”) at [40]). The Assessor’s decision record makes clear that the Assessor distinguished between apostasy and conversion.
The Assessor accepted that the applicant was no longer a practicing Muslim and was a Sadat, being the female member of the Sayad family who claim to be direct descendants of the Prophet Mohammed.
However, the applicant submitted that the Assessor did not consider whether the applicant would be persecuted for reason of being a Sadat who had denounced Islam.
In written submissions, counsel for the applicant submitted that the Assessor should have considered that if the applicant was not a practicing Muslim and has an interest in Christianity, does this make her an apostate. Counsel for the applicant submitted that if the answer to this question is, yes, then the Assessor should have considered would being an apostate Sadat mean that the applicant would suffer persecution.
The applicant claims that she rejected Islam and converted to Christianity. However, the Tribunal’s finding referred to above that the applicant had an interest in Christianity is not a finding that the applicant had in fact converted to Christianity.
Relevantly, the Assessor accepted and considered whether, as an apostate, the applicant was likely to come to the attention of authorities and to be at a risk of persecution. The Assessor concluded that she would not.
Further, a fair reading of the applicant’s claims in support of the protection visa application are that her apostasy arose because of her conversion to Christianity. I accept the first respondent’s written submission that by considering the risk of harm arising from the applicant’s conversion in the context of the applicant’s claims, the Assessor should be taken to have considered the risk of harm arising from apostasy (see WALT).
Counsel for the applicant in written submissions, submitted that WALT differs from the case before this Court because in WALT there was little evidence to support the applicant’s conversion to Christianity. Counsel for the applicant submitted that in the case before this Court, the applicant contended that she had rejected Islam and had converted to Christianity, both claims being independent of the other. However, as stated above, a fair reading of the transcript makes clear that the applicant’s claims to be an apostate are clearly centred on her claim to have converted to Christianity.
In any event, as stated above, the Assessor was aware of and considered the applicant’s claims to be an apostate and that she was not a practicing Muslim. The relevant issue for the Assessor was whether the applicant was at risk of persecution as an apostate, rather than an apostate who had converted to Christianity. As stated above, the Assessor did not accept that the applicant is a Christian convert. Further, the Assessor concluded that the applicant’s level of commitment to Islam and Christianity had not significantly changed and that her claims to apostasy and Christianity, including her baptism, were developed for the purpose of strengthening her refugee claim. The Assessor concluded:
“Given the low level of her interest in Christianity I am satisfied that if returned to Iran, as in the past, her religious attitudes (as a Christian or apostate) or her baptism would not come to the knowledge of authorities or others such that it would cause her any difficulties.”
As stated above, that finding was open to the Assessor on the evidence and material before it and for the reasons given. That finding must be seen in the context of the Assessor’s concerns about the late made claim by the applicant to fear persecution by reason of her religion, when prompted by the Assessor, and the Assessor’s findings that the applicant had not suffered serious harm in the past as claimed.
Further, the Assessor had regard to country information which referred to and considered on the issue of whether a Sadat would be subject to more severe treatment in Iran because of her conversion to Christianity.
In the circumstances, the Assessor considered all claims made by the applicant but was not satisfied that the applicant had a well founded fear of persecution in Iran by reason of those claims and that there was not a real chance in the foreseeable future that she would be subjected to serious harm as an alleged Christian and apostate.
Similarly, the Assessor considered the applicant’s status as a Sadat apostate and did not accept that she would experience particular harm for that reason. The Assessor accepted that the applicant was a Sadat but did not accept that this fact, of itself, or in combination with other characteristics of the applicant, would cause the applicant any adverse consequence. Again, a fair reading of that finding in the context of the Assessor’s reasons suggests that the characteristics of the applicant to which the Assessor was referring, were her interest in Christianity and that she was not a practicing Muslim.
As stated above, those findings were open to the Assessor on the evidence and material before it and for the reasons given.
Accordingly, Ground 4 is not made out.

Ground 5

Ground 5 asserts that the Assessor erred in law by taking on the role of arbiter of doctrine with respect to considering the applicant’s claim to be a Christian.
In support, counsel for the applicant took the Court to various parts of the transcript which he submitted demonstrate that the Assessor’s questioning of the applicant exhibited a doctrinal approach to the applicant’s claims to be a Christian. I do not accept that submission.
It is well accepted that it is a jurisdictional error for a person in the position of the Assessor to become an arbiter of Religion (see Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599). However there was nothing on the face of the Assessor’s decision record or the transcript to suggest that this Assessor fell into any such error.
In Minister for Immigration and Citizenship v SZLSP [2010] FCAC 108 (“SZLSP”), Kenny J stated at [37]-[38], that:
37 These authorities indicate that the question whether applying an "arbitrary standard" of knowledge of religious doctrine constitutes jurisdictional error is a complex one. 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. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
38 Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run 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.
SZLSP related to a case where the only reason stated by the Tribunal for disbelieving a claim was because the Refugee Review Tribunal found that the applicant’s answers to its questions about the applicant’s claimed religion were not correct. The Refugee Review Tribunal’s reasons did not refer to any particular questions and answers, did not disclose the source of the Refugee Review Tribunal’s understanding of doctrine and did not reveal why the answers given by the applicant were deficient.
That is not this case. A fair reading of the transcript does not suggest that the Assessor imposed some arbitrary preconceived minimum level of religious knowledge upon the applicant in considering her claim to be a Christian convert. As stated in paragraph 38 above, the Assessor explored with the applicant what Christianity meant to her by asking open ended questions that did not suggest a preconceived idea on the part of the Assessor as to what the applicant must know in order to demonstrate that she is a Christian.
As stated above, the Assessor asked the applicant open ended questions such as “Tell me what it means to you to be a Christian”; “Why did you chose to go to the Baptist church and not the Anglican church?”; “Tell me some of your favourite parts of the bible or some of your favourite Christian stories”.
It is well accepted that a person in the role of the Assessor is entitled to test an applicant’s claims by questioning about their knowledge of Christianity (see SZSLP at [37] – [38] per Kenny J).
It is for the Assessor to evaluate the evidence before it. As stated above, the Assessor’s findings were open to it on the evidence and material before it and for the reasons given, including its adverse credibility findings. Credibility findings are a matter “par excellence” for the decision maker. (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairjasingham (2000) 168 ALR 407 at [67] per McHugh J).
It is well established that the Assessor is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Assessor have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Moreover, the Assessor‘s reasons for rejecting the applicant’s claims to have been a Christian were not reliant solely on the applicant’s answers to those questions. The Assessor had regard to the applicant’s conduct in relation to those claims both in Iran and Australia and put to the applicant concerns it had arising out of that conduct. The Assessor found much of the applicant’s evidence to be inconsistent, vague and unconvincing.
In the circumstances, the Assessor’s reliance on other factors besides its evaluation of the applicant’s religious knowledge is a strong indicator that this Assessor conducted a legitimate exploration of the applicant’s knowledge of her claimed religion and not simply made a determination by reference to a preconceived minimum standard of knowledge.
In the circumstances, Ground 5 does not identify any jurisdictional error on the part of the Assessor and appears more to be a disagreement with the findings and conclusions of the Assessor. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly Ground 5 is not made out.

Ground 6

As stated above, in light of the Court’s findings in relation to Ground 1, Ground 3 is withdrawn and no longer pressed.

Conclusion

A fair reading of the Assessor’s decision record makes clear that the Assessor understood the claims being made by the applicant; explored those claims with the applicant and her migration agent at a hearing; and, had regard to all material provided in support, including written submissions provided by the applicant’s migration agent. The Assessor put to the applicant matters of concern it had about her evidence and noted the applicant’s responses. The Assessor also put to the applicant independent country information before it and invited the applicant to comment upon it. The Assessor also identified with specificity independent country information to which it had regard. The Assessor then made findings based on the evidence and material before it. Those findings of fact were open to the Assessor on the evidence and material before it and for the reasons given. A fair reading of the Assessor’s decision record makes clear that the Assessor reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Assessor’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.

The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date: 21 June 2013