BTP16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-04-30|Before: Mr P, Griffiths J

The appeal be dismissed.
The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 This appeal is from a judgment of the Federal Circuit Court of Australia (FCCA), which is reported as BTP16 v Minister for Immigration and Border Protection [2017] FCCA 1681. The appellant was represented by senior counsel (Mr S D Ower SC) in the FCCA. Initially he represented himself in the appeal with the assistance of a McKenzie friend, Mrs Lesley Walker. When the matter came on for hearing on 28 February 2018 the appellant applied for an adjournment so that he could obtain legal advice. That application was granted and further directions were made for the future conduct of the appeal and with a view to it being heard on 27 April 2018 by video link to Sydney. Subsequently, Mr Ower SC and Camatta Lempens Pty Ltd Lawyers agreed to represent the appellant on a pro bono basis in the appeal. 2 For the following reasons, the appeal will be dismissed, with costs.

The FCCA's reasons for judgment summarised 10 The three grounds of judicial review raised and pressed below may be summarised as follows: (a) The AAT committed jurisdictional error by failing to ask itself the correct question when considering the appellant's claim of past harm or well-founded fear of future harm on the basis of his religion. The appellant claimed that the AAT had failed to take into account the extent to which his anti-Islam views had crystallised while he was in the West, as well as his resolution to speak out against Islam on behalf of Muslims and non-Muslims. (b) The AAT committed jurisdictional error by asking itself the wrong question in taking the view that the appellant's claimed fear of future persecution on religious grounds was determined by the past conduct of Iranian authorities. (c) The AAT fell into jurisdictional error in failing to ask itself the question of whether the appellant had a well-founded fear of persecution based on his actual or imputed political beliefs in Iran. 11 The primary judge gave detailed reasons for rejecting each of these three grounds of judicial review. Those reasons may be summarised as follows. As to the first ground of review summarised above, the primary judge found that, by reference to the AAT's reasons for decision, it had given consideration to the appellant's claims of past and future harm based on religious grounds, and concluded that he did not have a well-founded fear of persecution based on his actual or imputed religious beliefs. The primary judge held that the AAT relied on country information in arriving at its findings, which were not unreasonable in the relevant legal sense, nor irrational or illogical. The primary judge also held that the appellant was not denied natural justice by reason of an alleged failure of the AAT to consider his actual claims, because those claims were in fact considered. 12 The primary judge dealt with the next two grounds of judicial review together. At [23], the primary judge described these grounds as raising an error of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (S395). The primary judge found, however, that the AAT did not simply focus on how the appellant could avoid persecution. Rather, his Honour concluded that the AAT had made a positive finding that the appellant did not have a well-founded fear of persecution based on his actual or imputed political beliefs, matters which themselves were the subject of specific findings by the AAT regarding the appellant's past behaviour and by reference to the country information referred to above. Thus the primary judge concluded that, having regard to the AAT's findings as to how the appellant had lived in Iran in the past and his "lack of avowed intentions to live differently in the future" if returned to Iran, he would live there as he had done previously. 13 As to the appellant's complaint that the AAT had failed to ask itself whether he had a well-founded fear of persecution based on his actual or imputed political beliefs in Iran, the primary judge observed at [24] that if the appellant regarded his lack of religious belief as an actual political opinion, he had to bring this to the AAT's attention. On the question of whether the appellant's lack of religious belief was an imputed political opinion, the primary judge found at [24] that the AAT considered and rejected this claim by reference to country information. 14 Accordingly the judicial review challenge was dismissed.

The appeal 15 The appellant relied on an amended notice of appeal dated 9 April 2018. It contained the following single ground of appeal (without alteration): 1. The learned primary judge erred in not holding that the decision of the second respondent (the Tribunal) was affected by jurisdictional error, in that, whether taken separately or cumulatively: 1.1 His Honour erred in finding that the Tribunal had considered and addressed the appellant's claim to be apostate, when His Honour ought to have found that the Tribunal had erroneously categorised the appellant as simply non-observant. 1.2 His Honour erred in finding that the Tribunal had asked the right question, namely what the appellant would do in the event that he returned to Iran, when His Honour ought to have found that the Tribunal had, in effect, asked what the appellant may do to avoid persecution. 1.3 His Honour erred in finding that, in any event: 1.3.1 the Tribunal had not erred in failing to ask why the appellant may act in a certain manner when he returns to Iran; and 1 .3 .2 the Tribunal had not erred in considering whether in light of the severity and nature of the penalty for being an apostate, there was any prospect of the appellant being found to be an apostate, irrespective of his conduct.

(a) The appellant's submissions summarised 16 The appellant contended that the primary judge erred in not holding that the AAT's decision was affected by jurisdictional error. It was submitted that the error could be described either as a failure to consider a claim or a failure to ask the right question in the light of S395. It was submitted that the Tribunal failed to consider claims that were expressly or squarely raised on the material before it, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58]-[61]. The error was said to relate to the appellant's claims of evidence that he no longer adhered to the Islamic faith. This claim was made in the statutory declaration dated 29 July 2013 which supported the appellant's visa application, in which he said that he did not follow any religion. He said that he had left Iran for religious reasons after he had begun to distance himself from Islam when he was 20 years old. He said that while he was working with Mazda, he did not undertake religious activities and "spoke to colleagues about my views". 17 The appellant drew attention to the fact that the delegate did not ask him any questions about his religious beliefs. 18 The appellant also pointed out that his migration agent had included in his written submission to the AAT a claim that "as a man who does not practice any religion", the appellant was "at risk from the authorities because of his desertion of the true faith". The appellant was described in the submission as an "apostate". The submission stated that the delegate had ignored all of the appellant's claims concerning religion and made no mention of the fact that the appellant said that he was a non-believer in Islam and did not participate in religious observances. 19 The appellant acknowledged that the AAT addressed his claims relating to his religion, although its primary focus was on the appellant's claims relating to the alleged adulterous relationship. The appellant described the AAT's consideration of his claims regarding religion as having been conducted in a "somewhat derisory fashion". 20 Although the appellant acknowledged that the primary judge found that the AAT had appeared to accept the position as to the appellant's past religious faith as "considerably more than one of mere observance" (at [20] of the reasons for judgment), he complained that there was nothing in the AAT's reasons to suggest that it recognised the distinction between the position of a believer who simply does not attend, as opposed to a person who actively does not believe in the faith. The appellant also noted that the primary judge may have gone a step further and found that, in any event, that distinction was not significant. 21 The appellant submitted that the AAT's failure properly to characterise his claim led to the AAT not asking the correct question as to what he would do if he were returned to Iran. He submitted that the AAT was obliged to make a finding as to his particular circumstances and whether they meant that he had a well-founded fear of persecution. Consistently with S395 at [40]-[43], the appellant said that the AAT must not ask itself whether he could avoid persecution, but rather it had to consider that he would, in fact, be persecuted. 22 The appellant submitted that the primary judge erred in not finding that the AAT had acted inconsistently with S395. This was because the AAT's reasons did not amount to a finding as to what the appellant would do if he were returned to Iran. This was partly because of the AAT's incorrect conflation of non-observance of religion with apostasy. 23 Finally, the appellant submitted that even if the primary judge correctly characterised the AAT's findings, it was wrong not to find jurisdictional error in any event. This was because it was neither sufficient, nor correct, merely to ask what a person would do upon his return to his country of origin. Rather, it is necessary to ask why the person would act in a particular manner upon return and whether they would do so because of their fear of persecution, citing S395.

(b) The Minister's submissions summarised 24 In summary, the Minister's submissions in respect of the amended notice of appeal were that the AAT: (a) correctly identified, and considered, the appellant's claim based on religion; (b) did not fall into the kind of error identified in S395; and (c) otherwise dealt with the appellant's claims in an orthodox manner and within jurisdiction. 25 The Minister emphasised that the appellant did not claim to have converted from Islam to another religion. Rather, he merely claimed to be a "non-believer in Islam and [did] not participate in any religious observances". In this respect, the Minister submitted that the appellant's representative erroneously described the appellant as an "apostate". 26 Further, the Minister submitted that the appellant's claims were not misapprehended by the AAT. Rather, the AAT considered the appellant's claims as advanced before the AAT.

Analysis and disposition of the appeal 27 As presented, the appellant's sole ground of appeal appears to have two aspects. The first is that the FCCA erred in not finding that the AAT did not consider and deal with an integer of his claim to protection, namely that he was an apostate and the AAT addressed the matter on the basis that the appellant was "simply non-observant" of the Islamic faith. 28 The second aspect involves a claim that the primary judge erred in not finding that the AAT acted inconsistently with the principles in S395. 29 It is convenient to deal with these two limbs in turn.

(a) Alleged failure to consider the appellant's claim to be an apostate 30 This issue turns on the primary judge's consideration and findings in respect of how the appellant presented his case as it related to the issue of religion and whether or not that case in the AAT, as presented, was considered by the AAT. It is important to bear in mind that the AAT is under no obligation to put the appellant's case for him (see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [36] per Gray, Cooper and Selway JJ). 31 At the outset, it needs again to be emphasised that, on a judicial review, the AAT's reasons for decision need to be approached by reference to the well-established principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272. 32 It is evident from the AAT's reasons for decision that it understood the appellant's claims relating to religion. The AAT noted the appellant's argument that "because he does not follow his faith, he would be considered an infidel" and he did not claim to follow any religion (see at [155] of the reasons for decision). The AAT also made express reference to the written submission dated 12 December 2014 in [58] of its reasons for decision. That submission raised for the first time a claim by reference to the concepts of "apostasy" and "apostate". 33 The primary judge expressly stated in [17] that he was satisfied that the AAT had considered "the evolution of the applicant's relationship with Islam as demonstrated in the materials before it". His Honour's reasons for making that finding are set out in [17] to [22] of the reasons for judgment. The primary judge expressly noted at [19] that, while the AAT described the appellant as "non-observant" rather than using the term "apostate", it did use the word "infidel" at [155] of its reasons for decision. The primary judge gave detailed reasons why he was satisfied that the AAT was "alive" to the history of the appellant's relationship with Islam, by reference to what was said at the entry interview, the statutory declaration and what the appellant said during the course of the AAT hearing. In particular, the primary judge found at [20] that the AAT appeared to view the appellant's past as involving "considerably more than one of non-observance". 34 The appellant has failed to establish any appealable error in respect of the primary judge's analysis and findings concerning this aspect of the appellant's claim as advanced in the AAT concerning his religious faith. In my respectful view, his Honour was correct to consider the appellant's complaint in this respect by reference to the AAT's reasons for decision as a whole, as well as to how the appellant's claims concerning religion evolved. The AAT's reasoning is not confined to that which is set out in [157], where there is a reference to "non-observance" as there also is in [152], upon which the appellant placed heavy reliance. All of [149] to [158] need to be considered, as well as the AAT's summary of background matters, including the summary of the appellant's evidence in the AAT. It is notable, for example, that there is an express reference by the AAT in [155] of its reasons for decision to the appellant claiming that he would be considered an infidel and could be executed. 35 His Honour was correct to conclude that the AAT approached the question on a broader basis than merely that the appellant was a non-observer of the Islamic faith.

(b) Did the AAT act inconsistently with S395? 36 The essence of the majority judgments in S395 is that it is inconsistent with Australia's obligations under the Refugee Convention to require a person to be discreet or otherwise modify some attribute or characteristic to avoid harm. 37 The primary judge did not err in rejecting the appellant's claim that the AAT had acted inconsistently with the majority judgments in S395. That is because, as the primary judge found, the AAT did not simply focus on how the appellant could avoid persecution. Rather, as outlined in [12] above the primary judge reasoned that, having regard to the AAT's findings as to how the appellant had lived in Iran previously and taking into account his lack of avowed intentions to live differently if he were returned to Iran, the AAT was satisfied that the appellant would not have a profile which would attract attention to him from the authorities. The AAT did not approach the matter on the basis of asking whether it was possible for the appellant to live in Iran in such a way so as to avoid adverse consequences because of his lack of religious faith. Rather, it found that the appellant had not suffered past persecution on religious grounds and it was unlikely that that would change if the appellant returned to Iran and continued to live as he had in the past. This approach adequately conforms with the approach of the majority in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; 79 ALJR 1142 at [8]-[10] per Gleenson CJ and at [163] to [166] per Hayne and Heydon JJ. 38 For these reasons, the primary judge did not err in rejecting the appellant's claim that the AAT had acted inconsistently with S395. 39 The Court expresses its gratitude to Mr Ower SC, Ms Rutherford and Camatta Lempens Pty Ltd Lawyers, who acted for the appellant on a pro bono basis and provided helpful assistance to the Court.

Conclusion 40 The appeal should be dismissed and the appellant ordered to pay the first respondent's costs, as agreed or assessed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

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