DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

IAA findings concerning appellant's religious beliefs 5 The IAA accepted that the appellant no longer practised Islam, but reached the following conclusions concerning the appellant's professed conversion to Christianity: The applicant's varied narrative concerning his disenchantment with Islam and how he came to be interested in Christianity, his inconsistency as to whether he ceased praying, the implausibility of him unknowingly attending a Pentecostal Church for 18 months after having been baptized Anglican, and his responses to questioning about his Christian beliefs does not support a conclusion that he hold(s) a sincere Christian conviction. I do not accept that the applicant is a genuine follower of Christianity. 6 The appellant does not contest the IAA's finding that he gave inconsistent accounts as to whether he ceased praying or that this was a matter that did not support a conclusion that the appellant held a "sincere Christian conviction". 7 Nor does the appellant contest the IAA's finding that it was implausible that the appellant unknowingly attended a Pentecostal Church for 18 months after having been baptised Anglican, or that this was also a matter that did not support a conclusion that the appellant held a "sincere Christian conviction".

IAA's findings 8 The IAA's finding that the appellant's narrative concerning his disenchantment with Islam and how he came to be interested in Christianity had varied was based on the following matters, set out at [14]-[16] of the IAA's decision record: [14] I have concerns regarding the applicant's evidence on his disenchantment with Islam and the commencement of his interest in Christianity. The applicant submitted a lengthy and detailed statement of claim with his visa application that was prepared with the assistance of a legal representative. He did not mention in this statement that he had an obsessive compulsive disorder and that this was exacerbated by repeating prayers, ablutions and other rituals as a part of his practise of Islam. His evidence at the interview with the delegate was that he became obsessive and fussy about his religious practices while in Iran and this led to his becoming disinterested in Islam. He claimed that due to obsessive behaviours driven by a fixation of perfecting religious practices his mother took him to a psychologist. He claimed that a psychologist prescribed medication and advised him not to practise his religion for a few months until his obsessive behaviour had subsided. No medical evidence was submitted in support of the claimed diagnosis or treatment plan. [15] The applicant's evidence at interview indicates that this obsessive behaviour was a significant contributor to his disinterest in Islam. He described his obsessive disorder as 'the first catalyst' in turning away from Islam. I consider the total omission in his statement of any reference to the applicant suffering from this condition or the impact of his religious practices on his wellbeing in this regard to be significant. [16] There is a tension in the applicant's assertion that he moved away from Islam and commenced following Christianity to avoid the rituals and repetitive practices of Islam. Christianity also has what could be regarded as repetitive rituals. As the delegate noted, the applicant's evidence was that following his conversion he was praying only one less time per day, twice as opposed to three times. The applicant's responses to this line of questioning did not account for how he reconciled or managed his obsessive compulsive disorder with the precepts and rites of his new religion, or if this presented any difficulties for him in undertaking his Christian worship.

FCCA judge's reasons 9 Before the FCCA, the appellant contended that the IAA had committed jurisdictional error in its reliance on the appellant's so-called "varied narrative" because it had overlooked the appellant's express statement in the "statement of claims" to the effect that it was not an exhaustive statement of his claims for protection and the IAA's reasoning process was relevantly legally unreasonable. 10 The FCCA judge addressed this contention succinctly, saying (at [42]-[44] of his Honour's reasons): [42] In relation to Ground 2, I agree with the first respondent that Ground 2 is, essentially, an impermissible attempt to press the Court to engage in merits review. The weighing of evidence and the evaluation of it, is for the decision-maker. There is nothing, in my view, in the reasoning process engaged by the Authority that amounted to a jurisdictional error. [43] The Authority relied upon four grounds to conclude that the applicant was not a genuine follower of Christianity. Two of those grounds were unchallenged. The claim that the applicant should be excused, given his legal representative did not include material about his compulsive obsessive disorder, in relation to his religious practice in Iran in his statutory declaration, again refers back to the competency of the applicant's legal representative. [44] The Authority was entitled to rely upon any inconsistencies, given it is the responsibility of the applicant to raise all particulars of the claim, pursuant to s.5AAA(2) of the Act. I do not see the issue of being so fundamental or significant to the applicant's claims that the error is one that, as asserted, amounts to jurisdictional error. In any event, a wrong factual finding does, of itself, not amount to jurisdictional error.

Appellant's argument on appeal 11 The appellant did not submit that the IAA was not entitled to find that his narrative concerning his disenchantment with Islam and how he came to be interested in Christianity had varied, as between the "statement of claims" and the appellant's evidence at interview. 12 Rather, the appellant submitted that his "statement of claims" was directed to the questions that he was required to answer by the protection visa application form. The specific questions were: (1) "Why did you leave that country?"; (2) "What do you think will happen to you if you return to that country?"'; (3) "Did you experience harm in that country?"; (4) "Did you seek help within the country after the harm?"; (5) "Did you move … to another part of the country to seek safety?"; (6) "Do you think you will be harmed or mistreated if you return to that country?"; (7) "Do you think the authorities of that country can and will protect you if you go back?" and; (8) "Do you think you would be able to relocate within that country?". 13 In that context, the appellant argued, it was not necessary for the appellant to explain non-essential background events in Iran and the appellant's failure to do so in the "statement of claims" could not logically or rationally be regarded as "significant": cf. DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30]; Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 (Singh) at [61]. 14 As to the reasons of the FCCA judge, the appellant submitted that a decision-maker must consider any inconsistency in context to determine its significance, if any. Thus, in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 226 FCR 83 at [28] the Full Court stated: [E]even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it … Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight.

Consideration 15 I do not detect any error in the reasons of the FCCA judge on this issue. It was open to the IAA to find that the omission of any reference to the appellant's obsessive disorder in the "statement of claims" was significant notwithstanding the particular questions that the appellant was then addressing because of the following features of the "statement of claims": (1) The description of the appellant's relationship with Islam including his practise of Islam as a child. Where the appellant volunteered that description, it was logical for the IAA to reason that the failure to mention the obsessive disorder was a significant omission because it could rationally be considered to be a matter that would form part of an account of the appellant's practise of Islam as a child, particularly if the disorder was a catalyst to his move away from Islam. (2) The circumstances in which the appellant ceased to practise Islam. Having volunteered an explanation that involved the appellant ceasing to pray about a year after his arrival in Australia having arrived as a practising Muslim, it was logical for the IAA to reason that it was significant that the appellant did not mention that his movement away from Islam had been affected by an earlier obsessive disorder. 16 I accept the Minister's (first respondent's) submission that the rationality of the IAA's evaluation of the relevant evidence is further supported by the facts that the appellant was not limited as to the scope, length or the contents to be included in the "statement of claims"; the instructions on the protection visa application stated that the appellant "must provide all the details about why you are seeking protection" and that he "may not be given another opportunity to present these claims. Therefore it is important that you include all details relevant to your case". Furthermore, the appellant was obliged by s 5AAA of the Migration Act 1958 (Cth) "to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim". 17 Ultimately, it was a matter for the IAA to weigh and evaluate the significance of the appellant's evidence concerning his obsessive disorder in the context of the matters that were volunteered in the "statement of claims". That was not a matter about which only one conclusion is open: cf. Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] (Crennan and Bell JJ).

IAA's findings 18 The IAA stated at [21]-[22] of its decision record: [21] The applicant demonstrated he has some knowledge of Christianity when questioned by the delegate. However when probed for particular details the applicant provided generalised, longwinded responses which often dodged the crux of the delegate's questions … Overall, his evidence did not, in my view, reflect a sincere personal religious conviction. [22] The applicant has submitted supporting statements attesting to his attendance at church services and bible study. I am prepared to accept that the applicant has attended these activities as claimed by the authors of those statements … However I note that engagement in religious rites is not of itself determinative of the sincerity of the participant's beliefs.

FCCA judge's reasons 19 So far as is relevant to this appeal, the appellant contended before the FCCA that, in finding that the evidence did not indicate a "sincere personal religious conviction" by the appellant, the IAA overlooked and failed to take into account the opinions of Mr Thebridge and Ms Alizadeh to the effect that the applicant was a genuine Christian. 20 The FCCA judge disposed of this contention as follows: [45] As to the second part of Ground 2, I am reasonably satisfied that the Authority was: a. Entitled to probe the applicant's knowledge of Christianity and assess the genuineness of the claim. b. Clearly took account of the Minister's [sic] statements in reaching its decision. [46] I am reasonably satisfied that the Authority was not required to uncritically accept the applicant's claims. There is no jurisdictional error in this regard.

Appellant's argument on appeal 21 The appellant contended that the IAA overlooked and failed to take into account or alternatively failed to give proper and genuine consideration to the opinions of Mr Thebridge and Ms Alizadeh concerning the appellant's Christian faith. 22 Specifically, these were: (1) Mr Thebridge's stated belief that the appellant expresses a genuine search for Christian faith; (2) Ms Alizadeh's opinion that the appellant is a Christian who loves Jesus and has found peace in his heart; and (3) Ms Alizadeh's opinion that the appellant's new faith had changed his life and that the appellant is now growing in his understanding of Christianity through Church and Christian fellowship. 23 The appellant contended that a person more suitable than others to opine on whether a person has "a sincere personal religious conviction" or "holds a sincere Christian conviction" or "is a genuine follower of Christianity" is a Christian minister or pastor who has spent time with the appellant. The appellant noted that Mr Thebridge is a member of the pastoral team at Voice to the Nations Church who spent time with the appellant. The appellant also noted that Ms Alizadeh is an Anglican minister who spent time with the appellant. Each of them has spent significantly more time with the appellant than either the delegate or the IAA member. 24 The appellant acknowledged that the IAA referred to the written statements of Mr Thebridge and Ms Alizadeh and accepted the evidence in those statements as to the appellant's attendance at church services and bible study. 25 However, the appellant relied upon the IAA's lack of reference to the evidence set out at [22] above. He contended that this evidence was probative of whether the appellant holds sincere Christian convictions and is a genuine follower of Christianity. The appellant submitted that it is open to the Court to conclude that the IAA overlooked and failed to have regard to the ministers' (that is, Mr Thebridge and Ms Alizadeh) opinions and this failure to have regard to probative evidence was a jurisdictional error. Alternatively, the appellant submitted that the IAA failed to give proper and genuine consideration to the ministers' opinions. 26 The appellant contended that the FCCA judge erred in finding that the IAA took account of the "Minister's statements" (being the evidence set out at [22] above).

Consideration 27 An administrative decision maker will fall into administrative error if it ignores relevant material, which is so fundamental that it goes to jurisdiction: WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21]. Whether the IAA was obliged to consider evidence will depend on the circumstances of the case and the nature of the evidence: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]. 28 The requirement that a decision-maker give proper, genuine and realistic consideration to matters that he or she is required to consider does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Singh at [36]. In Singh, the Full Court further explained (at [36]-[37]): [36] However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter. [37] In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant: (1) First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed. (2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement: (a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]; (b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and (c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48]. 29 As the appellant acknowledged, it is plain from the face of the IAA's decision record that it had regard to the statements made by Mr Thebridge and Ms Alizadeh. 30 It was a matter for the IAA to determine what, if any weight, to attribute to the ministers' opinions. In the case of Mr Thebridge, he does not clearly express a view that would support a finding either that the appellant holds "sincere Christian convictions" or that he is "a genuine follower of Christianity". In the case of Ms Alizadeh, her opinion is not accompanied by a clear statement of the reasons for her opinion, or facts concerning her relationship with the appellant that would enable an evaluation of the weight of that evidence. Neither opinion could be characterised as a "critical" piece of evidence and it was open to the IAA to accord them little weight. 31 In those circumstances, I do not accept that the IAA's failure to refer to those opinions warrants an inference that they were not considered by the IAA, or that the IAA failed to give proper, genuine and realistic consideration to the appellant's claim that he had converted to Christianity. 32 As to the finding of the FCCA judge that the IAA "[c]learly took account of" the statements of Mr Thebridge and Ms Alizadeh, that finding is amply supported by the reference to "supporting statements attesting to [the appellant's] attendance at church services and bible study". 33 Accordingly, I am satisfied that there was no relevant error on the part of the FCCA judge.

Conclusion 34 The appeal fails. Costs should follow the event. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.