ATS17 v Minister for Immigration, Citizenship, Migrant Services and... [2021] FCA 226 | Case summary

Federal Court of Australia|2021-03-16|Before: Lee J

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A INTRODUCTION AND BACKGROUND 1 The appellant appeals against the primary judge's dismissal of an application for judicial review of a decision of the second respondent (Tribunal): ATS17 v Minister for Immigration & Anor [2020] FCCA 1926 (J). The Tribunal had earlier affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Protection visa. 2 The appellant is an Iranian who arrived in Australia in 2013 and validly applied for the visa. The relevant factual background is not in contest and is set out in detail in the primary judge's reasons (at J[2]-[49]) and does not require repetition. It suffices to note that because of experiences in Iran, the appellant alleged he became disillusioned with Islam and became curious about the Armenian Church near his home and Christianity more generally. He contended that given he had left Iran illegally, gone to a Western country and shown an interest in Christianity, if he was to return to Iran he feared he would be perceived to be anti-Islam. 3 He now said he professed the Christian faith. During his interviews with a delegate of the Minister in late 2014, he said that he attended the Liberty Baptist Church in North Rocks, Sydney, and that he claimed to have discussed Christianity with his parents in Iran. At a second interview, the appellant provided the delegate with a letter of support from his pastor, the Rev Keith Piper. 4 The delegate concluded that the appellant was not owed protection under the 1951 Refugees Convention (as amended by the 1976 Refugees Protocol) or the complementary protection provisions of the Migration Act 1958 (Cth) (Act). In 2015, the appellant applied for merits review of the delegate's decision and in mid-2016 appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Persian and English languages. The Tribunal also took evidence from Pastor Piper. Part of the evidence from Pastor Piper (ultimately recorded at [164] of the Tribunal reasons and extracted below) was that knowledge or understanding of Christianity was not required before baptism in the Liberty Baptist Church; Pastor Piper also gave evidence that this approach was consistent with Christian teaching (Piper Relevant Oral Evidence). 5 In any event, in January 2017, the Tribunal set aside the delegate's decision to refuse to grant the appellant a Protection (Class XA) visa but substituted a decision to refuse to grant him a Temporary Protection (Class XD) visa. 6 Importantly for present purposes, the Tribunal did not accept that the appellant had formed a genuine intention to convert to Christianity in Iran; nor did it accept that the appellant was now a genuine convert to Christianity. The Tribunal also did not accept that the appellant had attended the Liberty Baptist Church otherwise than for the purpose of strengthening his claims for protection and therefore found that it was required to disregard that conduct under the then s 91R(3) of the Act. 7 The critical part of the Tribunal's reasoning was set out at [163]-[170]. Despite its length, for reasons that will become evident, it is worth setting out in full: 163. The Liberty Baptist Church was founded by Pastor Keith Piper in North Rocks, Sydney. Pastor Piper conducts Sunday services and a range of other religious activities. He is the author of the STOP Tract (in over 30 languages); and Life of Christ in Pictures.11 Pastor Keith Piper has a particular interest in Muslims converting to Christianity, having given an address on 'How to help Muslims to become Christians' to the Successful Australian Christian Nation Association Annual Conference in 2009 run by the Christian Democratic Party (The Fred Nile Group) due to his success in 'helping a number of Muslims in Sydney to become Christians'.12 The website of the Liberty Baptist Church also provides some resources aimed at Muslims or which Christians can give to Muslims, titled '4 Questions for Muslims', 'Compare Jehovah with Allah (in Farsi text)', '7 Bible Truths Disproving Islam', and 'What is wrong with the Quran?'.13 [Footnotes extracted (at [8]) below]. 164. The Tribunal accepts the evidence that the applicant has attended the Liberty Baptist Church from October 2013 to the date of the hearing. He did not attend church for about 7 months from about August 2014 and claimed this was due to a medical condition and recovery from surgery. The Tribunal considers that the applicant had little knowledge or understanding of Christianity at the time he was baptised. Pastor Piper gave evidence that such knowledge or understanding is not required before baptism in the Liberty Baptist Church and the Tribunal accepts that Pastor Piper is willing to baptise persons notwithstanding that they have little knowledge or experience of the church's beliefs or practices. It also considers he does not scrutinise the motivation of attendees of the Liberty Baptist church and accepts them at face value. The Tribunal does not make this finding as a criticism of Pastor Piper's approach but considers it weakens any weight to be assigned to his evidence. 165. Notwithstanding the applicant's attendance at Farsi language services and classes the Tribunal found the applicant's evidence as to his motivation for conversion and Christian beliefs to be unsatisfactory. Despite claiming to attend Bible study classes regularly he could not satisfactorily explain the topic of the most recent Bible class. His discussion of his Christian beliefs revolved around a comparison of Islam and Christianity. The Tribunal considers this reflects the intense focus that Pastor Piper appears to have on comparing the Koran and the Bible as well as Christianity and Islam in the materials he produces (tracts) and in evidence he has given to the Tribunal. 166. Further the applicant continually referred to his handwritten notes before answering questions about his knowledge and about his Christian activities. He kept returning to comparisons of Islam and Christianity. The Tribunal accepts he may have been anxious about answering questions on his Christian knowledge given the delegate's findings that his knowledge was rudimentary, however, he did not appear to be able to speak with any conviction or religious commitment. 167. The Tribunal considers that the applicant's knowledge of Christianity and his commitment to religion is fairly superficial. The knowledge displayed when he was interviewed by the delegate in December 2014 (as referred to in copy of the decision record provided by the applicant with his application for review) was limited. When the applicant gave evidence to the Tribunal he continually referred to his notes but did not appear to have a personal engagement with his claimed faith. His evidence appeared to be formulaic. 168. The Tribunal finds that his evidence as to how he first became interested in Christianity and then how he found the Liberty Baptist Church in Sydney indicates that he had decided to embark on a course of action to convert to Christianity to support his claims for protection and for no other reason. 169. The Tribunal considers that his decision to be baptised about one week after joining the church group in North Rocks suggests that he had already decided to go through a conversion to Christianity before he had any real opportunity to understand the nature of the religious beliefs of the church he was attending or to reflect on the consequences of his conversion. The applicant stated that the decision to convert was not momentous or critical one [sic] because he had rejected Islam but the Tribunal does not accept that evidence. The decision to convert from Islam to Christianity where the applicant's family were described as devout Muslims in a country where conversion was severely discouraged would, if it had been genuine, have been a very significant decision with serious ramifications for the applicant, at least in terms of his family relationships. If however, the decision to convert was not a genuine expression of religious faith such a decision would only in his mind be a means to an end as the applicant could easily abandon his position once he obtained a permanent migration outcome. 170. The Tribunal considers that his decision to attend and join the Liberty Baptist Church is motivated by an intention to seek a permanent migration outcome in Australia. It finds that since his arrival in Australia he has followed a considered strategy to take steps to join a Christian group, to go through a conversion process and to make claims of Christian conversion to support his application for protection. 8 The footnoted material referenced at [163] of the Tribunal's reasons (Website Material) was as follows: 11 Liberty Baptist Church n.d., Meet Our Pastor

12 The Christian Democratic Party (The Fred Nile Group) 2009, Successful Australian Christian Nation Association Annual Conference, 25 November

9 It will be necessary below to return in more detail to the Piper Relevant Oral Evidence and the Website Material.

B THE PROCEEDINGS BELOW 10 Before the primary judge, the appellant pressed only one ground of review (as set out by the primary judge at J[52]). This was that the Tribunal had failed to comply with ss 424A or 425 of the Act in respect of the oral evidence of Pastor Piper and the "materials he produces" (as referred to at [165] of the Tribunal's reasons). 11 The primary judge found no failure by the Tribunal to comply with s 424A of the Act: J[108]. In summary, the appellant had failed to point to any part of Pastor Piper's oral evidence or documentary materials that contained, in its terms, a rejection, denial or undermining of the appellant's claims to be a person to whom Australia owes protection obligations: J[77]-[104]; cf SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (at 1195 [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Furthermore, Pastor Piper's letters were given by the appellant either to the department or to the Tribunal, and thus excluded from the Tribunal's s 424A obligations by ss 424A(3)(ba) and (b) respectively: J[106]. The other documentary material in relation to Pastor Piper either did not constitute s 424A(1) material or was excluded by reason of s 424(3)(a) of the Act: J[107]. 12 The second part of the appellant's ground of review alleged a breach of s 425 of the Act. Her Honour dismissed this ground of review, finding that the appellant was on notice of the issues dispositive of the review from the delegate's decision (J[124]), and the Tribunal was not obliged to give the appellant a running commentary on its evaluation of his evidence: J[126]. Furthermore, the transcript of the Tribunal hearing revealed that it had put the appellant on notice of the issues arising in relation to the decision under review: J[127]-[131].

C THE APPEAL 13 The appeal is narrow and the grounds of appeal essentially reflect the two parts of the appellant's sole ground below. They are as follows: 1. Her Honour erred in finding that the oral evidence of [Pastor Piper] and the "materials he produces" were not "information" the [Tribunal] was required to "give" to the appellant under section 424A of the [Act] and ought to have found that the Tribunal committed jurisdictional error in failing to do so. 2. Further or in the alternative, her Honour erred in not finding and ought to have found that the [Tribunal] committed jurisdictional error by failing to "invite" the appellant under section 425 of the Act in relation to the oral evidence of his pastor and the "materials he produces". 14 The first of these grounds was refined somewhat during the course of the oral hearing as explained below, but it is convenient to deal with each ground separately.

D.1 The Alleged Relevant Information 15 Section 424A provides relevantly: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or … 16 When pressed for particularisation of the "information" which was said to have engaged the operation of s 424A, the appellant specified it as being: (a) the Piper Relevant Oral Evidence; or (b) the Website Material. Hence, it is necessary to consider both categories of information for the purposes of considering whether the primary judge was in error in not reaching the conclusion that the Tribunal failed to comply with the procedural requirements of s 424A.

D.2 Relevant Legal principles 17 The relevant principles were, with respect, correctly set out by the primary judge: see J[73]. 18 It was common ground on appeal that s 424A(1) sets out a requirement that the Tribunal give clear particulars of "information" it considers would be the reason or part of the reason for affirming the decision that is under review and, inter alia, invite comment and response. By virtue of s 441A of the Act, the invitation must be in writing. Failure to comply with s 424A(1) can constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 (at 321-2 [77] per McHugh J, at 345-6 [173] per Kirby J, and at 354-5 [208] per Hayne J). 19 It was also common ground that "information" is only material that contains "in [its] terms a rejection, denial or undermining" of the appellant's claims to be a refugee: see SZBYR (at 1195 [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Put another way, the material fits the description of "information" if, as explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at 440 [28] per Bell, Gageler and Keane JJ), it was "knowledge of facts or circumstances relating to material or documentation of an evidentiary nature". 20 The relevant legal framework was set out comprehensively by Gleeson J in BVE16 v Minister for Immigration and Border Protection [2018] FCA 922; (2018) 261 FCR 148 (at 145-60 [25]-[44]). It would amount to surplusage for me to reproduce her Honour's comprehensive survey of the principles including the matters which led her Honour to reject the proposition that there is a line of authority to the effect that the Tribunal was required to comply with s 424A(1) in relation to information relevant only to credibility. 21 Despite the point being somewhat obscured in the written submissions between the parties, by the end of the oral argument on appeal, it was accepted that a determinative feature of the current appeal was whether either aspect of the particularised material was of a character which was relevant only to credibility or, as the appellant contended, was relevant to the factual assertion that the appellant had "genuinely converted to Christianity": T41.32-8. 22 Neither the Piper Relevant Oral Evidence nor the Website Material comprised a rejection, denial or undermining of the appellant's claims to be a person to whom Australia owed protection obligations. The relevant information was not, in itself, of dispositive relevance to the appellant's claims for protection, nor did that information, by itself, undermine his claims. Rather, to the extent it was relevant, the Piper Relevant Oral Evidence and the Website Material, when viewed against other statements made by the appellant, at best cast some doubt on the appellant's credibility to be a genuine convert. As Heerey J observed in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 (at 492 [29]): It can also be noted that the section speaks of information that "would" be the reason etc, not "could" or "might". This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims. 23 As the extract from the Tribunal's reasons makes plain, the Piper Relevant Oral Evidence and the Website Material, to the extent they were relevant, became material relevant only to credibility because the Tribunal relied upon them in reaching the conclusion that it was not persuaded as to the truth of the appellant's evidence before the Tribunal and that, in effect, he was not a truthful witness. 24 As is evident from both the transcript and the Tribunal's reasons, there were three aspects of the appellant's evidence as to his supposed conversion that evidently raised concerns: (a) its suddenness; (b) the appellant's apparent lack of understanding of Christian precepts; and (c) his inability to explain the reason for his conversion in a cogent way. 25 As to suddenness, as I explained in CMA17 v Minister for Immigration and Border Protection [2018] FCA 655 (at [1]), this, in and of itself, might be thought to be a less than compelling basis for thinking a conversion may not be genuine (see the Acts of the Apostles (Acts 9:1-19), which refers to St Paul's experience of seeing a blinding light, and his "road to Damascus" conversion). But as to his lack of understanding of Christianity and his perceived parroting of Pastor Piper's views on comparing the Koran and the Bible as well as Christianity and Islam, the Tribunal used this material only in a process of comparison with, and assessment of, the appellant's evidence. Indeed, on one view, an aspect of the Piper Relevant Oral Evidence was consistent with the notion that the appellant had undergone a genuine baptism notwithstanding it occurred quickly and without him having acquired a detailed prior knowledge of Christianity. But to the extent this and the Website Material displayed some inconsistency with the appellant's evidence being accepted as credible, such an inconsistency does not transmogrify this material into "information" for the purposes of s 424A(1): see SZBYR (at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 (at 133 [104] per Buchanan J, with whom Perram J agreed). 26 The appellant has identified nothing in the Piper Relevant Oral Evidence or the Website Material that contains, in its terms, a rejection, denial or undermining of the appellant's claims to be a person to whom Australia owes protection obligations. 27 There was no error in the approach of the primary judge and this ground of appeal should be rejected. 28 For completeness, I should note that I also perceive no error in her Honour's reasons at J[106]-[107] (concerning the exceptions under subss 424A(3)(a)-(ba) applying to the material).

E Ground two: Section 425 29 This ground was only faintly pressed. 30 It suffices to note that the Tribunal's appraisal of Pastor Piper's evidence was not an issue dispositive of the review in the sense identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. The Minister submits correctly that this ground amounts to, and amounted to below, an assertion that the Tribunal was required to give the appellant a running commentary on its evaluation of the evidence. 31 It is clear that the Tribunal was under no such obligation; nor was it obliged to identify the significance of its questions, including the observations it made that the appellant's response to questioning as to why he converted from Islam to Christianity "sounds like it comes from someone who might have Pastor Piper's approach". 32 The appellant was plainly on notice of the issues dispositive of the review, including by: (a) the delegate's rejection of the appellant's credibility and his claimed commitment to Christianity; and (b) the Tribunal's questioning of the appellant including as to matters centrally relevant to the question of the genuineness of his commitment to Christianity. 33 The Minister pointed to the observations in SZBEL (at 165 [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) where it was said that "there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue". I accept that this was such a case and the primary judge was correct to conclude: (a) that the delegate's decision put the appellant "on notice of the relevance of his motivation to convert, his attitude to Islam and Christianity, and his knowledge and practice of Christianity" (at J[124]); and (b) the transcript of the Tribunal's hearing revealed that it put the appellant on notice of the issues arising in relation to the decision under review (at J[127]-[131]). 34 No appealable error by the primary judge, or breach by the Tribunal of s 425, has been demonstrated.

F ORDERs 35 For these reasons, the appeal must be dismissed, with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Migration Act 1958(Cth)ss 441A, 424A

ATS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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