The Appeal
13 The appellant submitted that the IAA had erred when it decided that his claim to fear persecution was not well-founded because he did not proselytise his apostasy. It had never turned its mind, it was said, to consider whether that fear had caused or contributed to the appellant's long-standing practice of keeping his religious beliefs private. There was evidence that a fear of persecution lay behind his reason for not promoting his apostasy. That evidence was his mother's advice, set out above, which, it was said, he acted upon.
14 The Minister submitted that the IAA had made no finding to the effect that the appellant would avoid persecution by acting discreetly. Rather, it was said, the IAA found that if he were returned to Iran, he would continue to adhere privately to his agnosticism for reasons other than a fear of persecution, in particular, because he had no interest in expressing his views publicly. Those other reasons were summarised by the Minister in his written submissions as follows:
Contrary to the appellant's submission that the IAA failed to consider the reason for his 'long standing tendency to keep his religion views private' in light of his evidence concerning his mother's wishes (at [22]), the IAA's decision clearly demonstrates that it did, in fact, consider why the appellant had not made his views with respect to his agnosticism publicly known. The IAA decision reveals the appellant's own evidence that he did not consider himself to be an advocate of any religion and saw no reason to propagate and promote what he believed in (AB2 186-187: [33]). The IAA considered this explanation, found it to be plausible and noted that the appellant had been able to incorporate his agnosticism into his daily life in Iran without coming to the attention of authorities and had intentionally kept his views about religion private (AB2 187: [34]-[35]). The appellant never claimed that he had acted discreetly with respect to his agnosticism so as to avoid persecution, nor that acting in this manner was of itself persecutory harm.
15 The Minister referred to a decision of Rangiah J. in SZVZL v. Minister for Immigration and Border Protection [2018] FCA 1299. In that case, the applicant claimed to fear harm if returned to Iran on the basis of, amongst other things, his real and imputed political opinions about a separate Kurdish state and his Kurdish ethnicity. The Tribunal rejected that applicant's claims because it was not satisfied that he had any political convictions and thus would not engage in political activities if returned to Iran. The decision in Appellant S395/2002 was distinguished by Rangiah J. At [19]-[20], his Honour said:
In the present case, the Tribunal's finding that it was not satisfied that the appellant faced any real chance of persecution in Iran was not based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups. Instead, the Tribunal was satisfied that the appellant "would not wish to continue to engage in such groups should he return to Iran". That finding was based upon the Tribunal's satisfaction that the appellant "lacks any real interest" in Kurdish political organisations and its lack of satisfaction that he had "any political (or other) convictions, that would give rise to a real chance of persecution in Iran". Those matters, in turn, reflected the Tribunal's earlier findings that the appellant's involvement in protests in Australia had been limited and that he had not been truthful in his claims to have been involved with the [Kurdish Democratic Party] in Iran.
The Tribunal did not suggest that the appellant was not at risk of harm because he could avoid persecution by being discreet in the expression of his political opinions. Rather, the Tribunal found that the appellant would voluntarily choose to not engage in political protests in Iran, not because of fear, but because he had no interest in doing so. The Tribunal considered what might happen to the appellant if he returned to Iran, as it was required to do, as part of its consideration of whether the appellant faced a well-founded fear of persecution. The primary judge was correct to hold that the Tribunal had made no error in its consideration and application of Appellant S395/2002.
16 In contrast, Mr Black of Counsel, who appeared for the appellant, referred to another decision of Rangiah J. In ESD17 v. Minister for Immigration and Border Protection [2018] FCA 1716, the applicant feared harm if returned to Iran because he had concealed the fact that he had in the past been sexually abused. Rangiah J. said at [34]:
In the present case, the Authority accepted that if the appellant's sexual abuse as a child were exposed, he would be at risk of serious harm in Iraq. It found, however, that the appellant would remain silent about his sexual abuse and, in that way, avoid harm. The Authority made the error of failing to ask whether the appellant would remain silent in order to avoid the risk of persecution. If that question had been asked, and the answer was that he would remain silent because he feared that he would be harmed if he revealed the sexual abuse, s 5J(1)(b) may have been satisfied, depending upon the Authority's findings concerning any "real chance" that the appellant would be "persecuted".
17 Mr Black submitted that the same, or at least an analogous, error of law had been made here.
18 Mr Psaltis of Counsel, who appeared before me for the Minister, submitted that Appellant S395/2002 was distinguishable. He submitted that the country information set out at [31] of the IAA's decision indicated that an apostate would only fear harm in Iran if she or he spoke out about their beliefs. Otherwise death sentences in apostasy and blasphemy cases "are now rare". The case cited in the country information concerned a man "arrested after making social media posts considered to be critical of Islam and the Koran". There was no evidence, it was said, that the appellant was going to do anything like this. In essence, the appellant, it was contended, was not religious. As such, there was no reason to expect him to promote something he had little interest in, whilst in Iran.
19 Mr Psaltis referred the Court to the decision of the High Court in Applicant NABD of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 where the majority upheld a decision of the then Refugee Review Tribunal that had found that the applicant in that case would not face persecution in Iran because his past practice had not been to broadcast his Christianity or conspicuously proselytise. Hayne and Heydon JJ. explained Appellant S395/2002 in the following terms at 582 [162]:
In Appellant S395/2002, the tribunal was held to have erred by dividing the genus of homosexual males in Bangladesh into two groups - discreet and non-discreet homosexual males. That led, in that case, to the Tribunal assigning the appellants to the former group, without it considering how the appellants wished or intended to behave if returned to Bangladesh. Moreover, the classification which was adopted was one which appeared to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. More fundamentally, however, the reasoning adopted by the Tribunal in that case revealed that it had not made the essentially individual and fact-specific inquiry which is necessary: does the applicant for a protection visa have a well-founded fear of persecution for a Convention reason?
(Footnote omitted.)
20 Their Honours concluded at 583-584 [166]-[168] as follows:
In the present case, the tribunal made findings about the way in which the appellant had hitherto practised his faith and about what he would choose to do in Iran. It accepted that he had discussed Christianity with other detainees but it did not accept that his activities since leaving Iran "constitute[d] active attempts to convert others through proselytism as distinct from quiet sharing of his faith". It concluded that he would not "choose to generally broadcast his practice of Christianity or conspicuously proselytize in Iran". It found that "any decision to avoid proselytizing in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices". And, as noted earlier, it found that he was not constrained in the practice of his faith "nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution".
The tribunal related its conclusions to the information it had about conditions in Iran. That information drew a distinction which, whatever its difficulties and imperfections, the Tribunal had to consider. It concluded that the appellant's conduct in Australia, if continued in Iran, was properly described as not being proselytizing or actively seeking attention. That is, the Tribunal concluded that the appellant's conduct would fall wholly within one of the descriptions of conduct given in the information it had about treatment of Christians in Iran.
At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.
21 Mr Psaltis submitted that the foregoing passages showed that evidence of an applicant's past discreet practice of Christianity in Iran could support a prediction that such an applicant could continue to practice his faith in that way if returned to that country.
22 I make two observations. First, the key to Appellant S395/2002 is that the Tribunal had not considered whether the reason why the applicants had lived discreetly was because they feared persecution. As Gummow and Hayne JJ. said at 503 [88]:
The Tribunal did not ask why the appellants would live "discreetly". It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.
23 Earlier, at 501 [82], Gummow and Hayne JJ. made it clear that the Tribunal had no power to direct how an applicant might live in another country. Their Honours said:
Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
24 Mr Black recognised that Appellant S395/2002 turned upon a failure by the Tribunal to ask whether the applicants in that case only lived discreetly because they feared persecution. He submitted that the IAA had made the same error here. That error could be seen in the last sentence of the reasons at [33]: it was not clear whether the additional reason for not making "comments on his views about religion in public" arose from fear of persecution or from respect for the wishes of the appellant's mother. It followed, it was said, that the IAA had failed to make a positive finding that the appellant had lived discreetly because of reasons other than fear of persecution. In other words, it expressly did not find that he had voluntarily lived inconspicuously.
25 Secondly, Appellant S395/2002 concerned the Act before the amendments made to it by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Those amendments included the introduction of s 5J(3) of the Act, as set out above. Here, it was not suggested that the IAA had relied upon s 5J(3) to determine that the appellant did not have a well-founded fear of persecution. The IAA did not decide that the appellant could modify his behaviour to avoid a real chance of persecution. Rather, the findings it made about the likelihood of persecution were based upon the appellant continuing to behave as he had in the past in Iran.
26 On balance, and with respect to Mr Black, in my view the IAA did not ask the wrong question for the purposes of s 5J of the Act. It did not seek to impose on the appellant a requirement that he should behave discreetly to avoid the risk of harm. Nor did it make an assumption that he would behave in that way. Rather, the IAA judged the risk of harm based upon its finding that the appellant would continue to behave as he had. The principal reason why the appellant had behaved discreetly was his own belief that religion acts a "control over people" and that he did not consider himself to be "an advocate of any religion and specifically not Islam". For him, God was "a source of internal energy" perceived "inside" a person as "interior conscience". The appellant is a "secular humanist" who believes "in liberty of expression of faith" but who sees no reason to "propagate and promote" his views. These are the primary reasons for explaining the appellant's discretion. They demonstrate that the appellant's behaviour in Iran was not the product of fear, but of his personal values. It was voluntary in nature. In that respect, the evidence did not show that the mother's advice had caused a modification of the appellant's way of life in Iran. It did not silence him. Rather, it was just another reason for the appellant's existing inconspicuous behaviour with respect to his agnosticism.
27 For these reasons the learned primary judge correctly distinguished Appellant S395/2002. This appeal should be dismissed with costs as agreed or as assessed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.