SZSWO v Minister for Immigration - [2014] FCCA 2492

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWO v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2492

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether Tribunal failed to consider an integer of the applicant’s claim – whether Tribunal’s finding was unreasonable – whether Tribunal made an error of law by holding that relevant evidence was irrelevant – whether Tribunal failed to take into account a relevant consideration – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 91R, 420, 476

Evidence Act1995 (Cth)

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 64
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
SZOYU v Minister for Immigration & Anor [2012] FMCA 316
Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; [2009] HCA 40
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164

Applicant:

SZSWO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1138 of 2013

Judgment of:

Judge Nicholls

Hearing date:

18 March 2014

Date of Last Submission:

18 March 2014

Delivered at:

Sydney

Delivered on:

31 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr D Hughes

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 24 May 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1138 of 2013

SZSWO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 May 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 April 2013 which affirmed the decision of the delegate of the Minister to refuse a protection visa to the applicant.

Application Before the Court

The grounds of the application are in the following terms:
“1. In determining whether the applicant had a well founded fear of persecution for reasons of political opinion, the Tribunal committed a jurisdictional error in that it failed to consider an integer of the applicant’s claim, further or alternatively its decision was unreasonable.
Particulars
(a) The applicant claimed that he had been expelled from university in Iran for at least two reasons:
(i) his membership of the political group ‘Freedom Front’; and
(ii) because of an essay that he wrote (the claim was made during the Tribunal hearing, and can be heard at approx. 5.50 on Disk 3 of the recording).
(b) The Tribunal did not accept the applicant’s claim to have been expelled from university because it found that this would be significant punishment for someone who was simply a member of Freedom Front and therefore inconsistent with that level of involvement (at [23]).
(c) The Tribunal did not consider the applicant’s claim that he was expelled because of the essay.
(d) In the premises, the Tribunal did not consider an integer of the applicant’s claim.
(e) Further, the Tribunal’s finding at [23] was unreasonable because, in determining that expulsion from university would be inconsistent with the applicant’s level of involvement in Freedom Front, the Tribunal did not rely on any evidence for this conclusion or give any reasons for it.
2. In determining whether conduct engaged in by the applicant in Australia was for the sole purpose of strengthening his claim to be a refugee, the Tribunal committed a jurisdictional error in that it made an error of law by holding that relevant evidence was irrelevant, further or alternatively it failed to take into account a relevant consideration.
Particulars
(a) The applicant claimed to fear persecution in Iran on the ground that he was a Muslim who had converted to Christianity, and so would be persecuted as an apostate.
(b) The applicant gave evidence to the Tribunal that in Australia he practised as a Christian and attended Gordon Baptist Church, where he had been baptised.
(c) Reverend John Merchant, the pastor of Gordon Baptist, provided the Tribunal with letters in support of the applicant’s claims, and gave oral evidence to the Tribunal. Reverend Merchant gave evidence (starting at 1.13.40 on Disk 2 of the Tribunal recording):
(i) that he had experience in distinguishing between genuine Christians and non-genuine Christians; and
(ii) that his observations of the applicant led him to believe that the applicant was a genuine Christian, including because:
A. the applicant would attend Church even if it meant that he would miss out on opportunities to work. This was significant because the applicant has little money;
B. he observed that the applicant’s relationships with other members of the Church bespeaks a genuine conversion;
C. he observed that the applicant is living his life in a way that shows that he is grappling with what it means to be Christian; and
D. he observed that it is clear that Christianity is at the core of the applicant’s identity.
(d) The Tribunal treated Reverend Merchant’s evidence as irrelevant to the question of the applicant’s purpose for attending church (at [28]).
(e) In fact, Rev Merchant’s evidence was highly relevant to the question of the applicant’s purpose. It is a

well recognised principle of law that evidence of one person’s observation of another can rationally affect the assessment of the other person’s motives or purposes.
(f) The Tribunal’s decision further miscarried because it ignored or failed to consider Rev Merchant’s experience in distinguishing between genuine and non-genuine converts.
(g) In the premises, the Tribunal’s decision at [28] involved an error of law because it mischaracterised relevant evidence as irrelevant.
(h) Further, or alternatively, the Tribunal failed to properly take into account a relevant consideration, being the evidence of Rev Merchant.”
[Errors in the original.]

Before the Court

At the final hearing, Mr D Hughes of counsel appeared for the applicant. Mr J Smith of counsel appeared for the Minister.
In evidence before the Court was a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister and tendered by the applicant, and the affidavit of Kerry Murphy, solicitor, made on 12 July 2013 annexing a transcript (“T”) of the Tribunal hearing before the Tribunal (no objection by the Minister).

Background

The applicant is a citizen of Iran (CB 2), who arrived in Australia on 3 May 2012 as the holder of a visitor visa (CB 135). He applied for a protection visa on 17 May 2012 (CB 1 to CB 52). He was assisted by a registered migration agent (CB 29).
His claims to protection were initially set out in a Statutory Declaration made on 17 May 2012 (CB 53 to CB 58). The applicant’s written submissions extract those parts of the claims said to be relevant to the grounds of the application ([3] of the applicant’s written submissions):
“(a) he was expelled from university in Iran in 2001 because of his political activities as a support of an organisation known, in English, as Freedom Movement of Iran or ‘Freedom Front’. As a result of his expulsion he was penalised to serve an additional three months of military service. He stopped his affiliation with the movement because of their increasing Islamic religious tendencies ([8], [9]);
(b) in 1999, his photograph was printed on the front page of a reformist paper ([10]);
(c) his mother has been a practising Christian for 15 years ([23]);
(d) he has not regarded himself a Muslim since his late teens, and [his] mother and his maternal aunt inspired in him an interest in Christianity ([25]m [29]);
(e) he has become a Christian ([34]); and
(f) he fears persecution in Iran primarily on the basis of his religious belief as a former Muslim in Iran who has converted to Christianity. He also holds political views against the Islamic regime arising from having been denied his right to exercise his personal, political and religious freedoms. He fears being questioned, detained, beaten up and punished upon his arrival in Iran because of his religious beliefs and practices, as well as his political views and activities. He fears being charged and prosecuted for apostasy and being an enemy of God, both of which carry heavy sentences under Islamic law ([45] – [47]).”
[Paragraph references are to the paragraphs in the Statutory Declaration of 17 May 2012.]
In another Statutory Declaration made on 24 July 2012 (CB 88 to CB 93) he gave further details as to his claims. Relevantly, he stated that he had “been closely associated with the Gordon Baptist Church” ([36] at CB 92) in Australia.
In essence, his claims to fear harm if he were to return to Iran were said to arise from his political activity in Iran and his Christian religion, as it had emerged in Australia.
The applicant provided a number of documents in support of his claim of his conversion to Christianity and that it was a “genuine” conversion:
1)A letter dated 15 July 2012 signed by the Secretary of the “Gordon Baptist Church” in Sydney (CB 74 to CB 75). In an attachment the applicant’s name appears on a list of members of the church eligible for nomination as deacons of the church (CB 76).
2)A “Certificate of Baptism” bearing the applicant’s name (CB 94).
3)A letter dated 7 August 2012 on a “Gordon Baptist Church” letterhead and signed by “Rev. John Merchant” (CB 97 to CB 98).
The delegate refused the application on 9 August 2012 (CB 127 to CB 155). The applicant applied for review to the Tribunal on 13 August 2012 (CB 156 to CB 162). He was again assisted by a registered migration agent (CB 156 to CB 159). On 26 September 2012 the applicant appointed a different migration agent to represent him (CB 183). The representative was also a solicitor (CB 193).
The applicant was invited to attend a hearing before the Tribunal scheduled for 12 March 2013 (CB 191). On 1 March 2013 his representative made, in writing, what were described as “legal submissions” (CB 193.6). Also enclosed were various documents in support of the applicant’s claims and a further Statutory Declaration by the applicant dated 26 February 2013.
It is of relevance that in these submissions the applicant’s representative identified three Refugees Convention grounds as relevant to the applicant’s claims. These were “religion” (“the applicant is a Christian”), “imputed political opinion” (that he would be perceived as anti-regime and pro-western “by virtue of his Christian religion”) and that he was “member of a particular social group”, being Muslims who have converted to Christianity (CB 196). This latter claim was articulated in this way for the first time.
In yet another Statutory Declaration made by the applicant, he provided, amongst other matters, further information about his religious conversion (CB 216 to CB 222). Also enclosed were various references to what can be described as “country information” concerning Christians in Iran (CB 200 to CB 206).
A further letter from Reverend John Merchant, on a Gordon Baptist Church letterhead, dated 4 March 2013, was also provided to the Tribunal on that date (CB 236 to CB 237).
The applicant attended the hearing before the Tribunal on 12 March 2013. His representative was present at the hearing. The Reverend Merchant gave evidence in support of the applicant (CB 239).
Following the hearing, the applicant’s representative made further submissions on 25 March 2013 (CB 243 to CB 247), 12 April 2013 (CB 266 to CB 267) and 13 April 2013 (CB 268 to CB 269). Another letter from the Reverend Merchant dated 24 April 2013 was also submitted.
The Tribunal affirmed the delegate’s decision on 24 May 2013 (CB 276 to CB 287 and CB 292). The reason for its decision was, essentially, expressed as ([14] at CB 278):
“I have found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.”
The Tribunal comprehensively rejected the applicant’s factual account of claimed events in Iran ([15] at CB 278 to [20] CB 279 and [22] at CB 279). It placed “no weight” on certain “e-mails” which the applicant had provided in support of his claims ([21] at CB 279). It rejected his claims to have “interacted” with various Christian clergy outside Iran ([26] at CB 280 to [27] at CB 281). Further, it gave “little weight” to “two letters” of support from Reverend Merchant ([28] at CB 280 to CB 281). It disregarded the applicant’s Christian related activities in Australia, pursuant to s.91R(3) of the Act, for the purposes of the criterion at s.36(2)(a) of the Act ([29] at CB 281).
The Tribunal found that the applicant did not have a well-founded fear of persecution on Refugees Convention grounds ([32] at CB 281). Given its comprehensive rejection of claimed events in Iran and his claimed “genuine” religious conversion, it also found that there were not substantial grounds for believing he would suffer “significant harm” on return to Iran ([33] – [34] at CB 281).

Consideration

Ground One

The first ground of the application asserts legal error in that the Tribunal failed to consider an integer of the applicant’s claim in relation to “political opinion”. The ground pleads further, or in the alternative, that the Tribunal’s decision was unreasonable.
The particulars to the ground direct attention to what is said to be the applicant’s claim before the Tribunal, that he was expelled from university in Iran because of his membership of a political group (the “Freedom Front”) and because he had written a particular essay (“the essay”).
The applicant directs attention to the Tribunal’s findings in relation to the claimed expulsion from University ([23] at CB 280):
“I do not accept that the applicant was a member of the Freedom Front at university and was expelled from university in his final year, made to serve an additional three months in the military and was barred from public sector employment because of his political activities. This is a significant punishment for someone who was simply a member, was never arrested by the authorities for any political activities and who resigned from the organisation after 12-18 months. He also claimed that his expulsion was based on verbal direction, but when asked to produce a copy of his university results that could have supported such a claim he claimed that he did not have a copy of the results and his mother could not access them as she was ill. The inconsistency between the punishment he claimed to have received with his actions and level of involvement in the organisation as well as the absence of any documentary evidence such as a university transcript or results to support his claim strengthens the Tribunal’s finding.”
The second element of the attack in ground one is that in finding that his claimed expulsion from the university would be inconsistent with the applicant’s level of involvement in the Freedom Front, the Tribunal’s finding was unreasonable because it did not rely on any evidence for this conclusion, or give reasons for it.
The applicant’s argument in relation to the first element of ground one was that the applicant claimed to have been expelled from university for two reasons. One, the association with a particular political group, and two, the writing of a particular essay. The Tribunal dealt with the first, but did not consider the second.
A failure to deal with a claim expressly made or clearly arising in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No 2)”), and if sufficient to show that the claim or an aspect of the claim was overlooked, is revelatory of jurisdictional error (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”) and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”)). The Tribunal must deal with each of the claims and aspects of the claims expressly made to it or on that which can be said to be clearly arising on what is presented to it.
The applicant directed attention to a part of the transcript of the Tribunal hearing annexed to the affidavit of Mr Murphy (T25.5 to T26.2): [I note that while the transcript is paginated, it unhelpfully omits any line references as is usual in transcripts of this type.]
“[Tribunal]: One other question I need to ask you was you mentioned earlier on in your initial statement that you had some political affiliations at university, is that correct?
[Applicant]: Yes when I was in university
[Tribunal]: What made you join that organisation
[Applicant]: We have in Iran two organisations by the name of ‘Nehsat Azadi, freedom front, and also national front, they are two different organisations. And my activities was in support of the freedom front organisation, ‘Nehsat Azadi’, but then I left them because of the tenet of their their organisation was belief in Islam. They had three principles in their organisation and one of them was that you had to be an Iranian the other was to believe in Islam and the other one to believe not to believe but to be a follower of the what was left from ‘Mosadar’ and I had difficulty with that principle about that you had to believe in Islam.
[Tribunal]: Ok and when did you leave?
[Applicant]: I don’t remember exactly the year but when I started co-operating with them, my co-operation with them last for about a year, a year and a half.
[Tribunal]: You haven’t run into any problems as a result of that membership?
[Applicant]: Yes I faced difficulty both for my co-operation affiliation with them as well as for the essay that I prepared for university and the title of the essay was ‘Three personalities who were influential in the past three years past hundred years of the history of Iran’
[Tribunal]: And what happened to you as a result?
[Applicant]: Expulsion from university on my last year of studies”
[Emphasis added.]

In his pleadings and written submissions, the applicant characterised the failure to consider “the essay” as a failure to consider an aspect of the applicant’s claim. In oral submissions the argument took a subtle change in emphasis. The applicant’s submission was that the Tribunal “gave no consideration to this evidence”.
The applicant relied on Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”). In that case, the relevant Tribunal had not mentioned in its decision record what was said to be an important piece of evidence that showed that the applicant’s family in that case had been baptised (see SZSRS at [3] and [11]).
The Full Court considered the Minister’s submission in that case to the effect that the Tribunal need not refer in its decision record to every piece of evidence before it (with reference to WAEE and Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254) and that the onus fell to the applicant to establish that the evidence was not considered (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”)).
In short, the Minister’s argument in that case was that there was a clear distinction between claims and evidence. The Full Court referred to recent Federal Court authority (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (“SZRKT”)), which the Minister did not directly challenge in SZSRS, and stated (SZSRS at [29]):
“The relevance of the distinction between claims and evidence and the authorities relied on by the Minister are considered later in this judgment. It is sufficient to note at this stage that the Minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), which was cited with approval by the Court in MZYTS at [68]-[70]. The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”
On the question relevant to the applicant’s case in the current proceedings, as to the consequence of the Tribunal not mentioning a particular piece of evidence in its decision record, the Full Court said (SZSRS at [34]):
“The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].”
In light of this, the applicant’s argument was that in the current case the Tribunal should have considered the evidence about “the essay” and its connection to the expulsion from university. It did not. It should have done so in circumstances where it otherwise found that the applicant was not a member of the Freedom Front because it reasoned that expulsion was a “significant punishment for someone who was simply a member” of this organisation ([23] at CB 280). The argument was that the close link between being expelled, and the reason advanced by the applicant for that expulsion, meant, in relation to “the essay”, that the Tribunal should also have referred to it. This is because it was significant and could have made a difference to the outcome. The evidence was said to be important and relevant, in the sense identified in SZSRS.
The applicant further submitted that it should not be inferred that the Tribunal did consider this evidence, and that any such inference arises from the manner of the Tribunal’s reasoning and analysis.
The applicant also relied on SZRKT. In this case the Court found that the Tribunal fell into legal error by ignoring evidence corroborative of part of an applicant’s claim to fear harm on return to Iran. The evidence that was overlooked was found to be central to the Tribunal’s adverse credibility finding in relation to the applicant in that case (SZRKT at [119]). The Court ultimately concluded that the overlooking of the corroborative evidence (a relevant academic transcript) in the circumstances did lead to jurisdictional error.
The applicant relied on SZRKT, in part, to draw an analogy with the circumstances in the present case. That is, the Tribunal in the current case failed to conduct a proper review of the delegate’s decision because it overlooked and did not consider an important matter that could have affected the decision. The applicant then sought to link this to the proposition, emerging from such cases as Htun and NABE (No 2), that a failure to consider a claim expressly made or clearly arising is revelatory of jurisdictional error.
The Minister’s position was that the assertion that the applicant wrote a particular essay, and that this was one of the reasons he was expelled from university, was not a substantial and clearly articulated matter, such as to give rise to an obligation on the Tribunal to consider, separately, the matter of “the essay”. The Minister explained the emphasis on the word “separately” as being that the matter of “the essay” fell generally under both of the “headings” dealt with by the Tribunal. Namely, “political opinion” and “expulsion from the university”. In that light, as both were dealt with by the Tribunal, all the “claims” made by the applicant were dealt with.
The Minister’s proposition (at [36] above) was said to arise from the various documents submitted by the applicant. These were the three Statutory Declarations submitted by the applicant at various stages of the processing of his application for the visa, the review conducted by the Tribunal, and written submissions made by the applicant’s representatives before the Tribunal. The Minister’s submission was that the only reference to “the essay” was in one line of the transcript of the hearing before the Tribunal. Further, that much of the other material was inconsistent with the claim that he was expelled from the university because of “the essay”.
The “first” Statutory Declaration on 17 May 2012 is at CB 53

to CB 58. The applicant plainly declares the following ([8], [10] at CB 53 and [11] at CB 54):
“[8] I was expelled from university in 2001 because of my political activities as a support of Nehzat-e Azadi-ye (Freedom Movement of Iran) as a result penalized to serve an additional three months of military service.
…
[10] My photograph was printed on the front page of Sobh-e Emrooz reformist newspaper as my camera was being pulled from my hand by an information officer in civilian clothes. This happened in Spring of 1999.
[11] When I was verbally notified of my expulsion, the Information Ministry officer (at the Herasat office of Northern Tehran Azad University), I was also told by the same officer words to the effect that I must abandon any hope of securing any public sector employment because of my record of anti-regime activities.”
In the same document the applicant also explained ([34] – [35] at CB 56 and [43] at CB 57):
“[34] My fear of persecution is primarily based on my religious belief as a Muslim born Iranian subject who has voluntarily renounced Islam and has taken an active and meaningful interest in my chosen faith of Christianity.
[35] I also hold some political views against the Islamic regime arising from having been denied to freely express my political and religious belief without fear or prejudice as well as the entitlement to exercise my personal, political and religious freedoms that I believe are integral parts of my human rights.
…
[43] I fear being questioned, detained, beaten up and punished upon arrival in Iran because my religious belief and practices as well as my political views and activities.”
[There is no mention of “the essay”.]
The “second” Statutory Declaration made on 27 July 2012 is at CB 88 to CB 93. The Minister submitted that again there was no reference to any “essay”. The focus in the document was on being questioned at the airport in Iran in 2012 about his frequent travel and church attendance, and having in his possession a “hard drive” with photographs and a DVD with “video clips” of street protests in 2009.
The representative’s submissions to the Tribunal are at CB 193 to CB 213. In particular, the Minister drew attention to the representative’s submissions as follows:
1)At [2] at CB 194:
“2. Well-founded fear
The applicant’s claims are expressed in his statutory declaration. The main facts are:
- He is a citizen of Iran
- He developed an interest in Christianity over two years ago
- Since entering Australia, he has attended Gordon Baptist Church”
2)At [4] at CB 195 to CB 196:
“4. Nexus to the Convention
The applicant claims a nexus to three limbs of the Convention:
(i) religion
(ii) political opinion
(iii) particular social group
…
Imputed Political Opinion
The state of Iran is an Islamic State and Christians are viewed as opponents and traitors of the Islamic State. The applicant has the imputed political opinion that he is anti-regime and pro-western by virtue of his Christian religion.
The applicant posted clips of the 2009 Iranian street protests on YouTube, and this makes him vulnerable to persecution on account of his political opinion.
The applicant has helped Iranian Christians by obtaining visas for them to travel to Europe so that they can apply for asylum. This imputes the applicant with anti-regime views and he was asked about such matters by people he believes were involved with the Intelligence or Security forces.”
[There is no reference to “the essay”.]
The applicant provided a third Statutory Declaration to the Tribunal dated 26 February 2013 just prior to the Tribunal hearing on 12 March 2013 (CB 216 to CB 222). The Minister submitted that there is no reference in this document concerning his expulsion from university, let alone any essay as being a part of the reason for any expulsion.
The Minister’s position was that, as at a time just prior to the hearing, and noting the time that the applicant’s case had been before the delegate and the Tribunal, the applicant’s explanation as to why he feared to return to Iran was as found in that final Statutory Declaration ([44] at CB 222):
“I believe I am at serious risk in Iran because of several reasons. Firstly because of my conversion to Christianity. Secondly because of political reasons as I previously explained. I am afraid of Etelaat and the security services and I fear they will persecute me because of political reasons and because of my religious conversion.”
The matter of conversion to Christianity was the focus of this Statutory Declaration. The reference at [44] (at CB 222) to political reasons “as I previously explained”, was left without any specific reference as to where that explanation may have been given.
The Minister’s emphasis was that nowhere in any of this documentation is there any reference to “the essay”, nor its relationship to his claimed expulsion from university. Up to the hearing before the Tribunal, the only reason advanced for that expulsion was his political opinion and his involvement with the Freedom Front.
The Minister also sought to draw support for his argument from other larger parts of the transcript of the hearing, to that relied on by the applicant now. The Minister directed attention to T3 to T8, and T14 to T25, to make the point that in the bulk of the hearing when explaining his fear of returning to Iran, the applicant relied on the 2012 airport “incident” and its consequences, and his connection with Christianity.
The Minister sought to explain the relevant context within which that part of the transcript relied on now by the applicant, with the reference to the “essay” (at T25), should be understood. That context was said to involve a proper understanding of the applicant’s evidence in relation to the “essay”, the context of his evidence as a whole, and the claims for consideration that can be said to expressly or clearly arise from the circumstances presented in that evidence.
The Minister also invited specific focus on that part of the transcript relied on by the applicant (from T25.5 to T26). The applicant’s reference to “the essay” was made in context of the Tribunal’s specific question about the applicant’s earlier claims (in his “initial” Statutory Declaration) that he had some political affiliations at the university.
Here, the applicant gave evidence before the Tribunal that he engaged in “activities” in support of one of two political organisations at the university, the Freedom Front. The applicant explained that he left that organisation because the basic tenet of the organisation was a belief in Islam. The applicant explained he had difficulty in remaining in the organisation given the central requirement that members believe in Islam.
The Tribunal then asked the applicant whether he had any difficulties “as a result of that membership…” (T25.8). The applicant’s reference to “the essay” is in response to that question (T25.8 to T26.2):
“[Tribunal]: You haven’t run into any problems as a result of that membership?
[Applicant]: Yes I faced difficulty both for my co-operation affiliation with them as well as for the essay that I prepared for university and the title of the essay was ‘Three personalities who were influential in the past three years past hundred years of the history of Iran’
[Tribunal]: And what happened to you as a result?
[Applicant]: Expulsion from university on my last year of studies.”
The Minister submitted that, with legal representation, over the lengthy course of making his claims to fear harm on return to Iran, the applicant initially referred to the expulsion from university because of his relationship with the Freedom Front for a brief period. There was no reference to “the essay”.
Further, that this matter had generally “dropped into the background” during the course of subsequent written material submitted to the Tribunal (the representative’s written submissions and the applicant’s subsequent Statutory Declarations). What was subsequently pressed was his fear arising from political opinion, in relation to the other events, and the matter of his religious activities.
The matter of “the essay”, therefore, was raised only in response to one question by the Tribunal at the hearing. It was left unexplained by the applicant. That is, the Minister submitted, there was no description or explanation as to how “the essay” was connected to his political beliefs or religious affinity, such as to bring it within the ambit of the claims that he made as to why he feared harm on return to Iran. Claims which he otherwise explained over a number of occasions.
In this sense, the Minister’s position was that in all the circumstances “the essay” was not of sufficient significance, arising from all of what was put before the Tribunal, such that the failure to refer to “the essay” in the decision record can be said to be revelatory of jurisdictional error.
It is important to be reminded that the Federal Court authorities which provide immediate direction to this Court in the resolution of the applicant’s ground (SZRKT, MZYTS, SZSRS) do not, in my respectful view, stand for the proposition that there is no distinction between the notions of “claims” and “evidence”. Rather, in acknowledging that distinction, as the Full Court said in SZSRS at [29], the distinction “might be a useful tool of analysis”, however, it is the case that the distinction itself is not “the fundamental question” to which this Court should direct itself.
It is also important to note, given the actual pleading made by the applicant in ground one (noting the different argument advanced during oral submissions), that not every statement made by an applicant during the application for a protection visa, the processing of that application, and during the conduct of the review by the Tribunal, raises an issue, or even can be seen to be a part of an issue, that can be seen as a claim or an integer of a claim, such that the Tribunal is obliged to consider it and to deal with it (SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 64 at [18]).
In this sense, given the isolated and unexplained (in the sense of why it would lead to a fear of harm) reference to “the essay”, it cannot be said that, in the totality of the claims and circumstances presented by the applicant, that the mere reference to “the essay”, was a claim or an integer of a claim such that the Tribunal was obliged to consider it (NABE (No 2)).
In any event, the focus of the current consideration, the “fundamental question” to be answered, is the significance or importance of the applicant’s reference to “the essay” at the Tribunal hearing as to the exercise of the Tribunal’s task in reviewing the delegate’s decision.
Here the Minister posed two answers to the applicant’s contention (as explained before the Court) that the Tribunal did not consider the applicant’s reference, in his evidence, to “the essay”.
First, the Minister submitted that the applicant asserted that the reference to “the essay” by the applicant was “a part of” his political activities that led to his expulsion from university.
In that light, the Minister submitted that the Tribunal dealt with that claim. The Minister relied on the Tribunal’s analysis at [23] (at CB 280). There, the Tribunal found that the applicant had not been a member of the Freedom Front and had not been expelled from university. The Minister’s argument was that the reason the Tribunal came to this conclusion was that it saw expulsion as a “significant”, and in context, a greatly disproportionate punishment for someone who was simply a member of the Freedom Front at the university.
Additional reasons for these findings (that he had not been a member of the Freedom Front and had not been expelled) were that he had never been arrested by the authorities for any political activities, and, on his own claim, had resigned from the organisation after a relatively short period of time as a member. That is, what arose from his claim as to when he resigned meant he had only been a member for a short time. This weighed against his claim to have come to the adverse attention of the authorities for reason of political opinion (see also [70] below). The Tribunal also noted the applicant’s inability to produce documents that could have supported his claim to have been expelled (such as his university transcript).
It is of note to add here, that what the Tribunal found would have been a “significant punishment” ([23] at CB 280) was not said to arise only because he was expelled from the university for his political opinion or beliefs, but also because he said he had been made “to serve an additional three months in the military and was barred from public sector employment…”([23] at CB 280).

The Minister also submitted that in the applicant’s reference to “the essay”, he said it was about certain Iranian leaders. The drafting of “the essay” then did constitute a political activity and was therefore “subsumed” by the Tribunal’s reference to “political activities” at [25] (at CB 280).
It is important to note, again, the context in which the applicant’s evidence in relation to “the essay” was given to the Tribunal. The reference appears in a part of the transcript of the hearing where the Tribunal explored the applicant’s political affiliations at the university. This sequence of questioning begins (T25.5 and above at [26]):
“[Tribunal]: One other question I just need to ask you was you mentioned earlier on in your initial statement that you had some political affiliations at university, is that correct?”
The applicant agreed that his initial written statement made reference to his membership of the Freedom Front (T25.6). The applicant then proceeded to explain the nature of the central belief of this organisation and his difficulty with the principle that he believe in Islam (T25.7).
The Tribunal asked when he left the organisation and the applicant answered that his “cooperation” with the organisation lasted for about a year, or year and a half (T25.7).
The Tribunal’s next question to the applicant is important in the context of the dispute now before the Court. The Tribunal asked (T25.8):
“You haven’t run into any problems as a result of that membership?”
As stated above, the applicant’s answer in that part of the transcript is what is now relied on by the applicant. That is, the applicant said that he faced difficulties “both” for his affiliation with the group and the writing of “the essay”.
It is important to note that from the time of his first written statement, the applicant described his support for the Freedom Front as “my political activities” (see [8] at CB 53). In context, he claimed he was expelled from the university because of his political views. In short, the applicant’s evidence, both at this part of the transcript and generally elsewhere in his evidence, was that he had political views, these were expressed in connection with his membership of the Freedom Front and he was expelled from university because of this (and “the essay”).
At other parts of the presentation of his claims, the applicant claimed that he had some difficulties because of his religious views. This can be seen, albeit in general terms, in the applicant’s first Statutory Declaration when he states ([35] at CB 56):
“I also hold some political views against the Islamic regime arising from having been denied to freely express my political and religious belief without fear or prejudice as well as the entitlement to exercise my personal, political and religious freedoms that I believe are integral parts of my human rights.”
[Emphasis added.]
What appears to be the case is that before the Tribunal the applicant did not seek to distinguish, other than with reference to these terms, between what constituted “political” and “religious” views. That is, distinction between political opinion and religious beliefs. At [23] (at CB 280), the Tribunal dealt and referred to, as it said, the applicant’s “political activities”. At T25 to T26, which also needs to be understood in light of the applicant’s initial written claims (at CB 53), the applicant himself blurs the distinction between these two concepts. This is explained at CB 56 (see [71] above) where the applicant explains that he holds political views against the Iran regime because, in part, he was denied the right to express his religious (pro-Christian) beliefs “without fear or prejudice” ([35] at CB 56).
In context, it was reasonably open to the Tribunal, given the topic discussed at that part of the hearing (T25.5 and following), the specific question asked by the Tribunal (T25.9), and the applicants answer to it, to see the matter of “the essay” as being a part of the applicant’s claims, or evidence in support of his claims involving his “political activities” which led to his expulsion from university.
It is important to note and understand from the above, the exact character and nature of the applicant’s claims and evidence as ultimately put before the Tribunal. This is important because of the emphasis given by the applicant now to what he says he put, and what was before the Tribunal.
For ease of understanding of the subsequent analysis, it is necessary to repeat some of the applicant’s claims as already referred to above. This is particularly so given some of the unexplained contradictions in the applicant’s claims.
As set out above, the applicant claimed to have been a member of the Freedom Front, albeit not for a long period. He claimed that the Freedom Front had as one of its basic principles that a “follower” of the Freedom Front had to believe in Islam. His evidence was that he left the Freedom Front because of his difficulty with this requirement. This is also the evidence he gave to the Tribunal at the hearing (see T25.6).
Of immediate importance, however, is to see this evidence in light of the totality of the applicant’s claims and evidence. While the applicant and his representative emphasised a number of different claims at different parts of the process of the application for the protection visa, and during the conduct of the review, what emerged as a clear and central aspect of the applicant’s claim to fear harm on return to Iran was his claimed interest in Christianity, and his claimed Christian related activities, before coming to Australia and his Christian practice since arrival.
However, at that part of the transcript relied on by the applicant now, the focus of his evidence and the Tribunal’s questioning, was on a far narrower point. Having given evidence about the principles of the Freedom Front (as at T25.6), the Tribunal’s questions directed attention to when, and why the applicant left the Freedom Front, and whether he had encountered any problems as a result of his membership (T25.8).
The applicant’s evidence here was that the “problems” he faced at university were difficulties because of his “cooperation affiliation” with the Freedom Front and (mentioned for the first time) “the essay” (T25.9). His evidence was that the result of that difficulty was his expulsion from the university in the last year of his studies (T26.2).
It is important to note, given its finding that the applicant was not expelled from the university, that the Tribunal asked the applicant if he had documentary evidence to corroborate his claim of expulsion. Specifically, whether he could obtain a copy of his “university results” or a “letter advising of your expulsion” (T26.3). The applicant said he was unable to obtain any such evidence. He then stated, in this context (T26.3):
“…well in Iran they don’t issue really an expulsion letter, they just suspend you…”
In relation to this “specific” point in his claims and evidence of the matter of the expulsion, what is clear is that he said he was “expelled” (he also used the term “suspended”) because of his perceived political views (the membership of the Freedom Front) and “the essay”.
Against the background of the entirety of the applicant’s claims and evidence, there was nothing expressly stated by the applicant, or clearly arising from the circumstances he presented, to say that he specifically feared harm if he were to return to Iran because of the essay, or anything arising from his authorship of it. His fear was variously stated to be said to arise from his political views.
Noting again, in this context, that there is no mention of the essay anywhere else in the body of evidence and claims put forward by the applicant. There is nothing to say that the essay had any consequence for him beyond the claimed expulsion from university. The claim was explicitly stated and clearly arose from his evidence and submissions as to his membership of the Freedom Front which was perceived to be an expression of his political views.
Nor did the applicant give any detail of the essay such as to say a claim arose that the Tribunal was obliged to consider. The only reference in the applicant’s evidence was the title of the essay, “[t]hree personalities who were influential in the past three years part hundred years of the history of Iran” (T25.10). There is nothing in that title, itself, to say that a claim to fear (future) harm arose from the essay such that the Tribunal was obliged to consider it. Noting that no other details were provided by him about “the essay” other than the brief, general description of its subject matter. It was not clear whether “the essay” contained some “political” content offensive to the university authorities or that his “difficulty” in relation to “the essay” was for some other reason.
To engage the Tribunal’s obligation, what is required is a substantial, clearly articulated claim relying on established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”)). Before the Court, the applicant did not show how the mere reference to “the essay” before the Tribunal was a substantial, clearly articulated basis on which the applicant claimed to fear either serious or significant harm on return to Iran.
There are two possible views of the applicant’s evidence about “the essay”. First, while it was linked to the expulsion from university there was nothing to say that it was a clear or express claim to fear harm on political grounds because of it.
In this light, no claim of relevant substance, as explained by the authorities (NABE (No 2), Dranichnikov, WAEE and Htun), was made such as to say that the Tribunal’s failure to expressly refer to “the essay” in its decision record was an indication that it failed to deal with a claim made or clearly arising.
Second, even allowing at best for the applicant, given his apparent linking of his affiliation with the Freedom Front and “the essay” to the expulsion, that “the essay” in some unexplained way (by the applicant), was an expression of his political opinion which led, in part, to his expulsion from the university. The Tribunal’s rejection of his claim that he suffered harm through the expulsion from the university, and consequently for reason of his political activities, subsumes and addresses, to the extent necessary, the applicant’s reference to “the essay”.
What is set out above is sufficient to dispose of the applicant’s first ground (see also the matter of unreasonableness below). However, I should note that I also agree with the Minister’s second argument against the applicant’s complaint now before the Court.
The Minister also submitted that the matter of “the essay”, even if the Tribunal had overlooked it (which the Minister puts only in the alternative, and note the finding above), was not a matter of significance or importance to be seen as critical to the Tribunal’s decision, in the same way that the respective pieces of evidence were seen in the cases before the Federal Court (with particular reference to SZSRS and SZRKT, see above at [28] – [34]).
In the current case the matter of “the essay” did not relate to any adverse credibility finding in the sense of SZRKT. I agree with the Minister’s description that the current Tribunal’s approach to the question of the credibility of the applicant’s claims and factual account was far more “nuanced” than what was implicit in the applicant’s submissions.
The current case does not involve, as was the case in the authorities referred to above, a circumstance where a single document, or statement, was important, if not central, to the rejection of the applicant’s entire factual account and claims.
Some care must be taken with the Minister’s submission that the matter was only raised at the relatively “late” stage of the hearing. In my respectful view, as the applicant correctly submitted, the fact that a claim is made “late” is not a matter that can directly affect the consideration on judicial review. A claim made at any stage of the process of the application for a visa, or the conduct of the review before the Tribunal, if expressly made or clearing arising on the circumstances, must be considered by the Tribunal in the proper exercise of its jurisdiction.
However I did not understand the Minister’s submissions in this way. It must be remembered that what, in my respectful view, was emphasised in both SZSRS and SZRKT was the “importance” of the “material” to the exercise of the Tribunal’s jurisdiction. It is the “seriousness” of the “error” (the failure to deal with the material) that is at the heart of the Court’s consideration. In this, the position, or relationship, of the material to the centrality of the applicant’s case can be seen as an element in assessing the “seriousness” or “importance” of the material.
In this sense, the Minister’s submission takes on substance. The applicant was assisted by registered migration agents and lawyers throughout the visa application process and the conduct of the review. He made a number of detailed written statements and his representative submitted written submissions of some considerable volume on his behalf.
Yet, in putting forward his claims, including in Statutory Declarations, he made no reference to “the essay”. His first Statutory Declaration made specific reference to being expelled from university. He gave as the sole reason his “political activities as a supporter of” the Freedom Front. There was no mention of “the essay” as being a reason for his expulsion.
Of course, as the applicant submits, attention must be given to the reasoning of the Court in SZRKT. From that case, with respect, it is made clear that the Court must not engage in a fact finding exercise, which is the province of the Tribunal. However, consideration must be given to the Tribunal’s analysis, to ascertain the relationship between the applicant’s reference at the hearing to “the essay”, the matter to which it could be said it went to, and the consequence of that to the Tribunal’s conclusions.
In the current circumstances, an immediate difficulty is that the reference to “the essay” was mentioned only once by the applicant. It was a mere reference towards the conclusion of the hearing. In the circumstances, it is not entirely clear what the nature and extent of that evidence was, and how it was said to be relevant to the claim to fear harm in Iran.
The applicant’s statement at the hearing before the Tribunal was that he faced difficulty, in part, because of “the essay” he wrote. What was not explained by the applicant was the nature or extent of that “difficulty”, nor was it entirely clear who he had the “difficulty” with.
However, allowing that the applicant’s “difficulty” may be said to have been with the university authorities, the Tribunal’s reasoning reveals that it specifically addressed the matter of the applicant’s expulsion from the university. It gave reasons as to why it did not accept, as the applicant otherwise claimed, that he was expelled from university for “political opinion” reasons associated with his membership of the Freedom Front.
In the absence of sufficient connection with the applicant’s presentation of his claims of “the essay” to his claimed expulsion from the university, it cannot be said that that was “important material” to the matters the Tribunal was required to decide (see SZRKT at [12] and SZSRS at [29]). Ground one in this regard is not made out.
Ground one, in the alternative, asserts that the Tribunal’s decision was unreasonable. Particular (e) directs attention not to the outcome of the Tribunal’s consideration, but to [23] of the Tribunal’s decision record (at CB 280 and see above at [22]). The particular asserts that the “finding” by the Tribunal in this paragraph, that the applicant’s expulsion from university was inconsistent with the applicant’s level of involvement in the Freedom Front, did not rely on any evidence, nor did the Tribunal give reasons for this.
The question of “no evidence”, or illogicality or irrationality, was made, in my respectful view, clear by the plurality in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) per Crennan and Bell JJ at [130] and [131] (and in the “sympathetic” approach taken by Hayden J at [78]):
“[130] In the context of the Tribunal’s decision here, ‘illogically’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
Further, as was, in my respectful view, also made clear in the understanding of SZMDS provided in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [15] (see also SZOYU v Minister for Immigration & Anor [2012] FMCA 316, and Minister for Immigration & Citizenship v SZNPG (2010)

115 ALD 303; [2010] FCAFC 51 at [20] per North and Lander JJ), any illogicality in reasoning will not automatically lead to jurisdictional error in every case. Such illogicality or irrationality must affect the decision.
It is not necessary to consider in this case whether the focus should be on the Tribunal’s decision as a whole or simply the impugned antecedent finding in one paragraph. That is because the applicant’s assertions are not made out on a fair reading of the Tribunal’s reasoning and relevant finding at [23] (at CB 280).
The applicant’s contention that the Tribunal did not give reasons for this finding, nor have evidence on which to base this finding, must be rejected. The Tribunal’s relevant reasoning was revealed in a sequence of findings.
It found, based on its evaluation of the applicant’s own evidence, that his claim was that he was “simply a member” of the Freedom Front. That is, that the applicant made no claim to having any higher profile in the Freedom Front.
The Tribunal found that this was inconsistent with other claims and evidence before it. The Tribunal, therefore, found that the applicant was not a member of the Freedom Front, and therefore was not expelled from the university, nor suffered other consequences as he claimed, as a result of any claimed membership.
The inconsistency was said to arise because the punishment of expulsion was a significant punishment for someone who was “simply a member”, as the applicant himself claimed. In addition to this the Tribunal found, on the applicant’s evidence, that he had never been arrested by the authorities for any political activities and, in any event, he had said that he had resigned from the Freedom Front

after 12-18 months.

The Tribunal also found that its view of the applicant’s evidence was strengthened by the absence of documentary evidence from the applicant, as to his university results. Further, when asked to produce such evidence, he said he could not produce such evidence because his mother was ill.
I did not understand the Tribunal’s reasoning to be that it could not find in the applicant’s favour because of the lack of corroborative evidence. Such a finding, of course, may lead to jurisdictional error in the manner explained in Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041.
Rather, that its finding, arising from the evaluation of the applicant’s own evidence, was that his claim to have been expelled for reason of his membership of the Freedom Front was inconsistent with his other evidence as to his claimed status, the claimed duration of his membership, and his evidence that he had never been arrested for any political activities.
The short answer to this part of ground one is that the Tribunal did base its finding on evidence before it. That is, the applicant’s own evidence. While minds may differ, its evaluation of this evidence, the view it took of it, was not unreasonable. In all, ground one is not made out.

Ground Two

Ground two asserts that the Tribunal fell into jurisdictional error because it treated evidence from a pastor of a church in Australia as either irrelevant, or it failed to properly take into account his evidence.
The background to this ground is as follows. As stated above, the applicant claimed to fear harm in Iran because of his past involvement with Christianity and as a convert to Christianity. Reverend Merchant of the Gordon Baptist Church in Sydney (“the Gordon Church”) provided a number of letters in support of the applicant’s claim. These letters are reproduced in the Court Book (see CB 97 to CB 98, CB 236 to CB 237 and CB 271 to CB 272).
Reverend Merchant also gave evidence at the hearing in support of the applicant (see T22.8 to T25.4).
The applicant’s complaint centres on [28] and [29] of the Tribunal’s decision record (CB 280 to CB 281):
“[28] The Reverend John Merchant of Gordon Baptist Church provided two letters of support and spoke on the applicant’s behalf, assessing that the applicant’s conversion was real. Although I accept the genuineness of his belief regarding the applicant and that he provided his support and baptised the applicant in good faith, I lend his evidence little weight as, while he can attest to his attendance and activities at the church, he cannot shed light on his motivations for doing so. I find that the applicant has approached the Gordon Baptist church, become baptised and participated in church activities in a calculated and deliberate manner in order to establish a refugee profile.
[29] As I advised the applicant during the hearing, s.91R(3) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim. Given that the applicant had no interest in Christianity when living in Iran, and for the reasons mentioned above I have disregarded his attendance and baptism at the Gordon Baptist church I do not believe that the claimant has any interest, nor would he be perceived to have any interest in Christianity if he were to return to Iran.”
The applicant referred the Court to s.91R(3) of the Act and the High Court’s relevant consideration in Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; [2009] HCA 40 (particularly at [13], [28] and [58] – [59]). Specific reference was made to [13] per French CJ and Bell J:
“As to what is necessary to satisfy the condition in par (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin.”
In light of this, the applicant submitted that in context of s.91R(3) of the Act, the relevant conduct in Australia was the applicant’s activities and engagement with the Gordon Church. The applicant drew on SZJGV to argue that he was required to satisfy the Tribunal that he engaged in this conduct “…otherwise than for the purpose of strengthening [his] claim to be a refugee” (with reference to s.91R(3)(b) of the Act). The applicant took the Court to various parts of the letters from Reverend Merchant and the evidence of Reverend Merchant at the hearing.
The applicant’s purpose was to put forward two propositions. First, that the material reveals that Reverend Merchant was engaged with the applicant to such an extent that he was able to speak of the applicant’s actual knowledge and beliefs relating to Christianity. That is, his knowledge went further than just the applicant’s claimed attendance and activities at the Gordon Church.
Second, that the Reverend Merchant’s opinion in the circumstances presented was such that it should be given weight. The applicant sought to draw an analogy with what may happen in a “courtroom” in similar circumstances. He submitted that Reverend Merchant’s evidence would be given weight as expert evidence under the Evidence Act1995 (Cth) (“the Evidence Act”). Further, the applicant submitted that given the nature and circumstances of what is contained in Reverend Merchant’s letters and evidence, he was capable of “shedding light” on the applicant’s motives, with reference to s.91R(3)(b) of the Act.
The attack on the Tribunal, therefore, was that the Tribunal did not understand the relevance of Reverend Merchant’s evidence and, therefore, failed to take into account a relevant consideration.
There is some difficulty with the applicant’s analogy with what would happen in “similar” circumstances in a courtroom, and the application of the Evidence Act.
It is trite to say that the Tribunal is not a Court. It does not operate in an adversarial fashion which would, amongst many other matters, allow for evidence to be tested in a particular way, including its admissibility under the Evidence Act. In any event, as the Act makes clear, the Tribunal “is not bound by the rules of evidence…” (s.420(2)(a) of the Act). The Tribunal operates in an “inquisitorial” fashion (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ). The Tribunal’s relevant statutory direction is to consider whether or not it can reach the requisite level of satisfaction to determine whether a protection visa should be granted to the applicant (ss.65 and 36(2) of the Act and SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
The focus of the applicant’s attack, as set out above, was essentially on [28] of the Tribunal’s decision record (at CB 280 to CB 281). Some attention, therefore, must be given to what the Tribunal said and reasoned there and, relevantly, in the entirety of its analysis.
The applicant now emphasised the evidence of Reverend Merchant. In this regard, the Minister submitted that one “suggestion” that arises from the applicant’s argument and submissions was that in determining the question raised at s.91R(3)(b) of the Act (as to the reason or reasons of why the applicant engaged in the church related conduct in Australia), the Tribunal only had regard to the applicant’s own evidence as to his relevant state of mind.
I understand this is said to arise from the applicant’s submissions in relation to the Tribunal’s reasoning, that Reverend Merchant could not “shed light on [the applicant’s] motivation” (at [28] at CB 280). By implication, therefore, the Tribunal seemed to be saying that only the applicant could shed such a light on his motivation. I agree with the Minister that this “suggestion” is not available to the applicant, at least on a fair reading of the Tribunal’s decision, not only at [28] (at CB 280) to [29] (at CB 281) but holistically.
The Tribunal’s reasons for disregarding the applicant’s religious conduct in Australia, pursuant to s.91R(3) of the Act, are “summarised” at [29] of its decision record (at CB 281, see above at [117]). It is plain, with reference to the entire body of its analysis (“…and for reasons mentioned above”), that the Tribunal did not solely rely on its view of the applicant’s own evidence as to his state of mind. It also had regard to the entirety of the evidence before it, beyond what was said to have happened at the Gordon Church that it was in the process of disregarding. For example, it had regard to the applicant’s own relevant conduct in Iran. This led the Tribunal to find he had no previous interest in Christianity in Iran. This was a finding which was reasonably open to the Tribunal to make on what was before it.
As stated above, a central part of the applicant’s argument before the Court derived from the Tribunal’s use of the words that Reverend Merchant “…cannot shed light on [the applicant’s] motivations…” (at [29] at CB 280). The applicant’s proposition was that the Tribunal, at least by this, demonstrated that his evidence was irrelevant to the question it was required to determine. The applicant’s position was that it was relevant. Therefore, the Tribunal fell into error by not taking into account relevant material.
It is well to be reminded that Tribunal decision records are to be read holistically and not over zealously with “an eye attuned for error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] ‑ [31]).
I agree with the Minister that the Tribunal did not disregard Reverend Merchant’s evidence. It made no finding that could be construed as saying that it was irrelevant in the sense pressed by the applicant now. Rather, it had regard to his evidence and accepted a great part of it. The Tribunal accepted, for example, his belief in the genuineness of the applicant’s religious beliefs, the applicant’s baptism in Australia, and that he provided support to the applicant in his church related activities.
What the Tribunal found was that the evidence could only be given “little weight” because Reverend Merchant was not able to “shed light” on the applicant’s motivation for his conduct. As the Minister submitted, a distinction can plainly be drawn between the assignment of “little weight” and “no weight”. The Tribunal did not say that it assigned “no weight” to Reverend Merchant’s evidence, such as may have provided some assistance to the applicant now (although see further below as to the assignment of weight). I agree with the Minister that the Tribunal was aware of this distinction, in that at two other parts of its decision record it assigned “no weight” to other evidence (see [21] at CB 279 and [26] at CB 280).
In my view, a fair reading of its assignation of “little weight” is properly understood with reference to the question to which the Tribunal’s particular inquiry was directed, and its assessment of the evidence in that light. That question was, at this part of it analysis, derived from s.91R(3)(b) of the Act. That is, whether the applicant’s conduct at the Gordon Church was engaged in by the applicant otherwise than for the purpose of strengthening his claim to be a refugee.
In my view, it cannot be said, on a fair reading, that the Tribunal approached this question from the starting position that Reverend Merchant, or anyone in his position, could never assist in the understanding of what was in this applicant’s, or even generally any applicant’s, mind in engaging in the impugned conduct.
Rather, the Tribunal’s analysis was that the applicant’s evidence, including his evidence relating to his religious activities and belief before coming to Australia, lacked credibility ([14] at CB 278). It gave reasons and made findings reasonably open to it to explain this conclusion (see [15] at CB 278 to [23] at CB 280). It found that the applicant had had no interest in Christianity in Iran. The applicant does not now attack this finding, nor say it was not reasonably open to the Tribunal to make. Further, the Tribunal found that he had “fabricated his interaction with… various clergy” in other countries ([27] at CB 280).
It is in this specific context that the Tribunal then turned to consider the evidence from Reverend Merchant. What clearly, and in part, informed the Tribunal’s analysis, in relation to Reverend Merchant’s evidence, was its finding in relation to the applicant’s own conduct in regards to Christianity in Iran and other countries, prior to his arrival and conduct in Australia.
In essence, while the Tribunal accepted Reverend Merchant’s evidence that the applicant had attended the Gordon Church and participated in certain activities, it could not give more than “little weight” to all his evidence, in light of the applicant’s propensity to fabricate claims, and put forward claims and evidence lacking credibility. In this light, a fair reading of the Tribunal’s analysis is that, in all the circumstances, Reverend Merchant could not “shed light” on the applicant’s motivations in the totality of the conduct claimed. This was claimed conduct that the Tribunal otherwise rejected for other reasons
The applicant’s “survey” before the Court of the detail of Reverend Merchant’s letters of support and evidence cannot now assist him. The Tribunal did not fail to consider the evidence or make any finding that it was irrelevant. As stated above, it simply gave it “little weight”. The assignment of weight is, as the parties agreed before the Court, for the Tribunal to assign in the proper exercise of its jurisdiction (Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason CJ and Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164). Ground two is not made out.

Conclusion

In all, the grounds of the application are not made out. The application should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 31 October 2014