DBS18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed a decision of the Federal Circuit Court of Australia ("FCC") which dismissed the appellant's application for judicial review of a decision of the second respondent, ("IAA"). The IAA affirmed the decision of a delegate of the first respondent ("the Minister") not to grant the appellant a Safe Haven Enterprise (Subclass 790) visa ("SHEV"). 2 The appellant is a citizen of Iran who arrived in Australia in April 2013 as an unauthorised maritime arrival. In May 2016 the appellant was invited to apply for a SHEV, which he did with the assistance of a registered migration agent in November 2016. He did not complete the question which asked him to nominate his religion and his protection claims made no reference to his religious conversion from Shia Islam to Christianity. 3 During his protection visa interview in July 2017, a delegate of the Minister raised the appellant's apparent conversion to Christianity with him, noting that the appellant appeared to have maintained a Facebook page in his nickname which had "shared" or "liked" a number of overtly pro-Christian posts. At first the appellant said that the Facebook account was old and he no longer maintained it, but his response was contradicted by evidence showing the appellant had posted a number of pro-Christian messages in the month immediately prior to his protection visa interview. The appellant ultimately acknowledged to the delegate that he still maintained the Facebook account. The appellant and his representative told the delegate during the protection visa interview that the appellant's conversion, whilst genuine, was not the subject of any claim for protection, though the appellant's representative did assert that the appellant may face harm because of the Facebook posts. 4 The appellant was questioned by the delegate about his knowledge of the Christian faith and the delegate considered the appellant's claim to have converted to Christianity as part of his assessment of the appellant's visa application. The delegate concluded he was not satisfied that the appellant had "genuinely and sincerely" converted to Christianity. In reaching that view, the delegate had regard to documents showing the appellant had been baptised two days prior to the interview and attended Bible studies classes. The delegate also took into account the apparent lack of knowledge about the Christian faith shown by the appellant in response to the delegate's questions. 5 On review by the IAA, the appellant submitted a letter written by a pastor in May 2018 to the effect that the appellant had continued to engage in a range of Christian activities since the delegate's decision, including regular church attendances and Bible classes. The author of the letter considered the appellant to be a genuine convert. The IAA noted it was not clear as to why that letter was submitted, given the appellant's submission before the delegate that he did not put forward a claim based on his conversion to Christianity to the Department, and no such claim was expressly put forward to the IAA. The IAA inferred that the appellant was now seeking to make a claim based on his conversion and the letter was offered as further evidence in support of that claim that his conversion was genuine. The IAA was satisfied there were exceptional circumstances to justify considering the letter as new information as the letter purported to corroborate the appellant's claim that his conversion to Christianity was genuine by reference to events that were personal to the appellant and which post-dated the decision of the delegate. 6 The IAA did not accept the appellant's claim that he had genuinely converted to Christianity. The IAA placed little weight on the documents showing the appellant's baptism and attendance at Bible classes as evidence of the genuineness of his conversion to Christianity, stating that he had only been baptised two days before his interview and had only completed five Bible classes out of a possible 183 classes, all on a single day. The IAA also had regard to the delegate's questioning of the appellant, and found the appellant's knowledge of Christianity "to be extremely superficial and his explanations unconvincing". The IAA reasoned at [45]: During the interview, the delegate asked the applicant a number of questions about his conversion to Christianity, including what attracted him to his new faith, when he commenced worshiping, what were the key elements of Christianity, and the major differences to Islam. In my view, the applicant was unable to answer any of these questions satisfactorily. He openly admitted he did not know any of the basic tenets of the Christian faith; he could not outline the significance of Jesus to Christianity. Whilst I do not wish to impose an artificial or arbitrary standard on the applicant about the level of doctrinal knowledge required or expected of a convert, I found [his] knowledge of Christianity to be extremely superficial and his explanation unconvincing. He claimed to have converted because his Pastor convinced him of the errors of Islam, in a single session, on the date of his baptism. At the end of the interview, the applicant's representative argued that the applicant was a new convert, that as he was illiterate, and as he did not speak English his understanding of Christianity was poor because he couldn't understand the preaching. … 7 At [46] and [50]-[51], the IAA further reasoned: Overall, having considered all of the applicant's evidence about his conversion to Christianity, I find him to be very unconvincing. I accept that [the] applicant has engaged in a range of Christian activities since he submitted his SHEV application in November 2016 including attending church services and bible classes and being baptised and that he continues to attend regular church services and other Christian activities, and I have carefully considered the pastor's letter in support of the applicant, including his opinion that the applicant is genuine. However, looking at the overall history of this matter, I am not satisfied that the applicant's activities reflect a genuine conversion to Christianity. Rather I conclude that he has engaged in these activities solely for the purpose of enhancing his claims for protection in Australia. Likewise, I conclude that his Facebook activity, which he tried to hide from the delegate at interview and which contained images of him consuming alcohol and pro-Christian messages, was published with the sole purpose of strengthening his claims for protection. I find these Facebook posts were not genuine indications of the applicant's feelings but were part of his fabricated attempts to prove he was Christian. … I have not accepted that the applicant's conversion to Christianity was genuine but rather, have concluded that his conduct relating to this was conducted with a view to advancing his claims for protection. I am not satisfied that the applicant has engaged in any Christian activities, including his church attendance, bible classes, baptism and all of his Facebook posts insofar as they relate to Christianity and alcohol consumption, otherwise than for the purpose of strengthening his claim to be a refugee. As a consequence, I am required to disregard all of this conduct under s.5J(6) of the Act. On the evidence before me, which I am permitted to consider, I am not satisfied that the applicant has a well-founded fear of being persecuted for reasons of religion. 8 The IAA separately considered whether the appellant satisfied the complementary protection requirements under s 36(2)(aa) of the Act. The IAA found that he did not, relevantly reasoning at paragraphs [67]-[69] and [73] as follows: I have found the applicant's Christian conversion, and his other ostensibly Christian activities were not genuine. Despite the considerable time and effort he has put into overt demonstrations of his Christianity, I conclude that the applicant remains a Muslim and that if returned to Iran, he would return to the Islamic faith he formerly practised in that country and when he first arrived in Australia. Nevertheless, I note that as part of his efforts to demonstrate his Christian bona fides, the applicant has posted some overtly pro-Christian material and images of himself consuming alcohol on Facebook. The applicant and his representative suggest that these posts may give rise to a risk of harm if he was returned to Iran as the posts may come to the notice of the Iranian authorities. Social media usage in Iran is common, and in high demand. Whilst the three is monitoring in Iran, Facebook is blocked in Iran. None of the country information before me indicates that the Iranian government is monitoring the social media activity of persons overseas. The applicant has over 260 Facebook contacts, many of whom reside in Iran. His representative has argued that the applicant does not know many of these persons personally, as in Iran it is considered prestigious to have a high 'friend count' on social media networks and so the applicant's Facebook network could not be trusted to maintain the secret of his pro-Christian posts or his consumption of alcohol. I find this line of argument to be contrived, and unpersuasive. I give it little weight. I consider that it would be highly unlikely that applicants Facebook posts would become known to the authorities in Iran if he returned to that country. Given this finding, I am not satisfied that he would face a real risk of any harm arising from his pro-Christian Facebook posts. … I have found that if returned to Iran, the applicant would resume his previous practice of Islam. For the same reasons (and unlike the delegate), I do not consider that the applicant could genuinely be said to be a 'non-practicing Muslim' or an apostate and thus I do not consider that he would face a real risk of harm on either basis. (Footnotes omitted and errors in original.) 9 The appellant applied for judicial review on five grounds: 1. There was an insufficient logical or evidentiary basis for the IAA to find that the applicant was not a "genuine" Christian after finding the applicant was baptised, attended bible classes and church services. 2. The decision by the IAA was affected by jurisdictional error… as there was not a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant, are elements that an adherent to the religion might reasonably be expected to know. 3: The IAA misapplied of law regarding section 5J(6) of the Migration Act 1958 (Cth) under the refugee criterion. 4. The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant should modify his behaviour so as to avoid a real chance of persecution. 5. The IAA erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion. (Errors in original.) 10 The FCC rejected each of those grounds and dismissed the application for judicial review. On ground 1, the FCC did not accept that the IAA applied an arbitrary or erroneous arbiter of faith doctrine in determining whether the appellant was a genuine convert to Christianity. The FCC held it was open to the IAA to take into account the appellant's "extremely superficial" knowledge of Christianity and the IAA's finding that the appellant was not a genuine Christian was open on the evidence and could not be said to be irrational or illogical. On ground 2, the FCC held that it was relevant for the IAA to take into account the "extremely superficial" knowledge of the appellant and, given the appellant's history in relation to his claim of conversion, the adverse findings by the IAA were reasonable, logical and rational. On ground 3, the FCC held that the IAA correctly understood and applied s 5J of the Migration Act 1958 (Cth) ("the Act") and it was open to the IAA as a matter of logic and rationality to find that the conduct was engaged in for the sole purpose of strengthening the appellant's claims. On ground 4, the FCC held that the IAA found the appellant was not a genuine convert and remained a Muslim and, in the circumstances, there was no modification of behaviour by the appellant. On ground 5, the FCC held there was no conflation by the IAA of the appellant's claims or a misunderstanding of the appellant's claims as the IAA expressly addressed both the claim to fear harm on the grounds of Christianity and in relation to complementary protection made an express adverse finding in relation to the appellant's claim to fear harm on the grounds of apostasy. The FCC further stated that it was apparent on a fair reading of the IAA's reasons as a whole that the IAA took into account the activities of the appellant in relation to his purported conversion to Christianity in the adverse finding in respect of apostasy. 11 The amended notice of appeal to this Court essentially relies on the same grounds of appeal. 1. There was an insufficient logical or evidentiary basis for the IAA to find the appellant was not a "genuine" Christian after finding the appellant was baptised, attended Bible classes and church services. 2. There was an insufficient logical or evidentiary basis for the IAA to conclude that the appellant was ignorant of the elements an adherent to the religion might reasonably know regarding the refugee criterion. 3. The IAA misapplied of [sic] law regarding s 5J(6) of the Migration Act 1958 (Cth) under the refugee criterion. 4. The IAA misapplied s 5J(3)(i) of the Migration Act 1958 (Cth) by finding the appellant should modify his behaviour so as to avoid a real chance of persecution. 5. The IAA erred by failing to distinguish the application of s 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion. 12 As to ground 1, it was argued that the IAA was bound to find that the appellant had genuinely converted to Christianity from the fact that he was baptised and, having been baptised, there was no basis for the IAA to determine that his conversion was not genuine. It was also submitted there was no evidence that he had fabricated his claim. 13 It is well established that there is jurisdictional error if a decision lacks an evident and intelligible justification from which an appellate court may infer that in some way there has been a failure properly to exercise a statutory power: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ) ("Li"). A decision which lacks an evident and intelligible justification is one that is legally unreasonable: Li at [76]; Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 408; [2018] HCA 30 at [10] (Kiefel CJ) ("SZVFW"). The relevant test was stated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] ("SZMDS") as follows: A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. As Kiefel CJ emphasised in SZVFW at [11], the test for unreasonableness is necessarily stringent: see also [51]-[60] (Gageler J), [78]-[87] (Nettle and Gordon JJ), and [131]-[135] (Edelman J). It is also well established that to discern irrationality or illogicality in the IAA's reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [84]-[85] (McKerracher J), citing SZMDS at [135]. 14 I reject the appellant's contention that there was "an insufficient logical or evidentiary basis" for the IAA to find the appellant was not a "genuine" Christian after finding the appellant was baptised and attended Bible classes and church services. That contention disregards the reasoning of the IAA. The IAA was not bound to accept that the appellant was a genuine convert to Christianity just on the basis that he had been baptised. The IAA was entitled to give consideration to the other matters upon which it relied for its reasoning that it could not be satisfied that the appellant truly was a convert to Christianity and by reference to those other matters, the Tribunal rationally and logically, with an evident and intelligible justification, came to its decision that it was not satisfied that the appellant was a genuine convert to Christianity, namely: (a) the appellant had been baptised only two days prior to his interview with the Department; (b) although he claimed to have attended Bible classes, he had only attended a single day and completed five classes out of a possible 183 classes; (c) he claimed to have converted because his pastor convinced him of the error of Islam in a single session on the date of his baptism; (d) the appellant openly admitted that he did not know any of the basic tenets of Christian faith; (e) his knowledge of Christianity was considered to be "extremely superficial" having regard to his answers to the questions asked of him by the Minister's delegate; and (f) the view of the IAA that the appellant's Facebook posts of pro-Christian messages were published by him with a view to demonstrating his claim to have converted to Christianity and the finding that the posts were part of the appellant's "fabricated attempts" to prove he was a Christian. 15 These matters were all relevant matters for the IAA to consider and, having regard to those matters, the IAA's view that the appellant was not a genuine convert to Christianity was logically based and had an evidentiary basis. It cannot be said that the reasoning lacks a logical and evident justification for the view reached. Nor can it be said that only one conclusion was open. The conclusion that it reached was a conclusion that was open to it on the whole of the evidence. Accordingly ground 1 must fail. 16 As to ground 2, it was argued that the IAA committed jurisdictional error by applying an arbitrary standard in finding that the appellant's knowledge of Christianity was extremely superficial. Reliance was placed on Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108. In that case, Kenny J reviewed a number of authorities where the claim was that the decision maker fell into jurisdictional error by imposing an "arbitrary standard of knowledge". At [37], Kenny J noted that the authorities indicated that the question of whether applying an "arbitrary standard" of knowledge of religious doctrine constitutes jurisdictional error is a complex one. Her Honour accepted that a Tribunal which relies on the premise that "every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion" may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. Her Honour stated that there is, however, a difference between operating from the premise that all believers will have certain specific knowledge and concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant's lack of knowledge indicates that he or she is not a genuine adherent of a religion. Her Honour stated that if a Tribunal ultimately finds that an applicant's lack of particular knowledge is a reason to reject his or her claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on an a priori basis that the applicant was required to demonstrate that knowledge. At [39], in a passage relied on by the appellant, Kenny J stated: If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant's claim based on perceived deficiencies in the applicant's knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant's position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal's material and the applicant's answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal's material and the applicant's answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant's knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility. It was contended that there was not a sufficient or logical basis in the present case to hold that the appellant's lack of knowledge indicated that he was not a genuine convert to Christianity, given the submission by the appellant's representative that the appellant was a new convert, illiterate and, as he did not speak English, his understanding of Christianity was poor because he could not understand the preaching. It was submitted that in those circumstances it was unreasonable and unfair for the IAA to find at [45] the appellant's "knowledge of Christianity to be extremely superficial and his explanations unconvincing". I do not accept that submission. As the IAA reasoned at [45], the appellant openly admitted he did not know any of the basic tenets of Christian faith, he could not outline the significance of Jesus to Christianity, and he was unable to answer questions satisfactorily about his conversion to Christianity, including what attracted him to his new faith, when he commenced worshiping and what were the key elements of Christianity and its major differences to Islam. The appellant's claim to have converted because his pastor convinced him of the errors of Islam in a single session on the date of his baptism was also a matter which the IAA was entitled to take into account in finding that the appellant's explanations were unconvincing. That evaluation was not irrational but grounded on probative material and logical grounds. Accordingly ground 2 also fails. 17 As to ground 3, it was submitted that the IAA misapplied s 5J(6) of the Act by finding that the appellant's attendance at church and Bible classes and baptism were "solely for the purpose of enhancing his claims for protection" and that he posted his pro-Christian messages on his Facebook "with the sole purpose of strengthening his claims for protection". It was argued that it was simply not available for the IAA so to conclude, given that his protection claims made no reference to his religious conversion and he only converted shortly prior to his protection interview. I reject that submission also. Whilst the appellant had not made a claim for protection based on religion when he made his application, he did pursue that claim before the IAA by submitting further documentary evidence in support of his claimed conversion to Christianity and the submissions made on his behalf by his migration agent. For the reasons already given, the IAA's conclusion that it was not satisfied that the appellant was a genuine convert to Christianity had a rational and intelligible basis. Having rejected the appellant's claim to be a genuine convert to Christianity, it was open to the IAA to conclude that the claim was only put forward and the postings on Facebook were only done for the purpose of strengthening his claim for a protection visa. It followed from this that the IAA concluded that the conduct engaged in by the appellant in Australia was to be disregarded by reason of the application of s 5J(1) and (6) of the Act. Accordingly ground 3 also fails. 18 As to ground 4, it was submitted that the IAA misapplied s 5J(3)(i) of the Act by finding that the appellant can modify his behaviour regarding his religious beliefs, by concealing his true religious beliefs, or cease to be involved in the practice of his religion, so as to avoid a real chance of persecution. There is no substance in this ground either. The IAA did not find that the appellant does not have a well-founded fear of persecution because he could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Iran. The IAA found that the appellant did not have a well-founded fear of persecution for the purposes of s 5J of the Act based, amongst other things, on the conclusion reached that the appellant's conversion to Christianity was not genuine but rather done with a view to advancing his claims for protection. Accordingly ground 4 must fail. 19 As to ground 5, it was submitted that the IAA conflated the findings regarding the appellant's conversion to Christianity under the refugee criterion at [50] of the decision record with the appellant's claims of apostasy under the complementary protection criterion at [73] of the decision record. It was submitted that it was not enough for the IAA to address the claim of apostasy under its broader considerations of the appellant's conversion to Christianity but, rather, it was necessary for the IAA to consider whether the appellant would face serious harm if he is returned to Iran because he has been baptised into the Christian faith and is no longer a Muslim or because he may be considered to be an apostate. There is no force in the submission that the IAA conflated the findings. The IAA considered but did not accept that the appellant was genuinely a non-practising Muslim or an apostate and considered on the evidence that the appellant remained a Muslim and, if he returned to Iran, he would return to the Islamic faith he formerly practised in that country. It is also apparent that the Tribunal considered whether the appellant would face serious harm if he returned to Iran because he may be perceived to be an apostate because of his posts of pro-Christian material on Facebook but concluded by reference to country information that it would be highly unlikely that the posts may come to the notice of Iranian authorities. There was no error in the approach of the IAA. 20 Accordingly the appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.