SZTOR v Minister for Immigration and Border Protection

The merits of the proposed appeal 7 It is remains necessary to consider the merits of the proposed appeal. 8 The draft notice of appeal has gone through various iterations, culminating in a document entitled "Final proposed notice of appeal" (the notice of appeal). That document is prolix and does not comply with the requirement of r 36(2)(c) of the Rules that a notice of appeal state briefly, but specifically, the grounds relied on in support of the appeal. 9 The notice of appeal sets out six grounds. Only the first was arguably raised before the Federal Circuit Court. The applicants would require leave to raise the grounds not argued before the primary judge on any appeal. The merits of the proposed grounds are relevant to whether leave would be granted to rely upon those grounds: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [48]. 10 In determining an application for an extension of time, it is only necessary to consider the merits of the proposed grounds at a "reasonably impressionistic level", and it is inappropriate to conduct "a de-facto full hearing": MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at [21], [38]. I propose to approach consideration of the application in that manner.

The applicants' claims 11 The applicants are members of the same family. The first applicant is the mother, the second applicant is the father, and the third and fourth applicants are children. The first and second applicants made primary claims, while the claims of the third and fourth respondents were based upon their membership of the first and second applicants' family. 12 The applicants are citizens of Iran. The first applicant disclosed in her application that she had previously made a failed asylum claim based upon "university political claims" in the Netherlands in 2003. She claimed that she became familiar with Christianity while in the Netherlands and that, after she returned to Iran, she started attending Christian meetings in 2011. She alleged that she was arrested at a Christian meeting, but her husband was able to secure her release through the payment of a bribe. After her release, they travelled to the Netherlands and Turkey. Upon their return to Iran in 2012, the person who had taken their bribe demanded more money, which they paid. They then left Iran in May 2012. After arriving in Australia, the applicants started attending a church in Sydney. The applicants were baptised in Australia. The first applicant claimed that her life would be in danger if she returned to Iran because she has converted to Christianity. 13 The second applicant claimed to fear harm because of his wife's "persistent religious activities".

The Tribunal's decision 14 The first applicant attended a hearing before the Tribunal on 21 October 2013 and gave evidence at the hearing. The applicants were represented by a migration agent. The second applicant did not attend the hearing because he had to look after a sick child, but did not seek any adjournment to allow him to give evidence. The first applicant said that the second applicant had no claim separate to hers. 15 The Tribunal gave detailed reasons dated 8 November 2013, finding that the first applicant's evidence lacked credibility. The Tribunal found that many of her claims were vague, inconsistent or implausible. The applicants called a witness who gave corroborative evidence, but the Tribunal found that her evidence suggested a degree of collusion. 16 Significantly, for the purposes of this application, the Tribunal found: 30. Asked what steps she had taken in Australia to explore other religions or other branches of Christianity, she claimed that she did not need to look for anything else as she had found what she wanted. She knew she had been baptised into the Pentecostal Protestant branch. Asked why she chose this branch, she said differences were minor and the atmosphere was very welcoming in this church. It was put to her that she had been constrained previously and yet had come to Australia and explored no other branches and just fallen into one church. She was aware there were differences between Protestant and Catholic but she didn't care about the different paths and didn't have the time for research as she was a mother. … 56. Her actions once in Australia are also not indicative of someone who has undertaken any significant spiritual examination. She had not explored any other religions or other branches of Christianity, and didn't display any significant knowledge of the other branches of Christianity. While the Tribunal acknowledges that there is no specific test as to what is a sufficient degree of research, the complete absence of any suggests a deliberate and targeted approach. She had gone to a single church on the recommendation her friend [name removed], but was vague on the differences between the different Christian denominations saying that she didn't care about the different paths and that she didn't have time for research as she was a mother. 17 It should be emphasised, that these passages do not represent the sole basis upon which the Tribunal found that the first applicant's evidence was not credible. 18 The Tribunal found that the first and second applicants' claimed conversion was not genuine. It found that their Church attendance in Australia was done with the sole purpose of strengthening their refugee claims. The Tribunal was not satisfied that there were any substantial grounds for believing that there was a real risk that the applicants would suffer harm in Iran. It also found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Iran, there was a real risk that they would suffer significant harm. 19 For these reasons, the Tribunal found that the first and second applicants did not satisfy the criteria in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). The Tribunal also found that the third and fourth applicants were not owed protection obligations as members of the first and second applicants' family unit under ss 36(2)(b) or (c) of the Act.

The judgment of the Federal Circuit Court 20 The applicants then applied for review of the Tribunal's decision to the Federal Circuit Court. The grounds of the application were: (1) The Tribunal failed to comply with s 424A of the Act by failing to provide the second applicant with clear particulars of adverse information, namely that the Tribunal did not accept that he was a genuine convert to Christianity and did not accept that he was a genuine convert because of his non-attendance at the hearing. (2) The Tribunal exhibited apprehended bias. (3) The Tribunal failed to have proper regard to, or failed to consider, the first applicant's claims and evidence. 21 The primary judge rejected the submission that the Tribunal was required under s 424A of the Act to identify its view that it did not believe the second applicant and rejected his claim to be a genuine convert to Christianity because he had not attended the hearing. His Honour found that the first of these matters was not "information" within s 424A. His Honour also found that the Tribunal had not said that the second applicant's absence from the hearing was a factual matter that weighed in the balance, but simply noted that as he had not attended the hearing he had not given evidence, with the consequence that the evidence before the Tribunal was insufficient to satisfy the Tribunal that he had genuinely converted to Christianity. 22 The primary judge rejected the ground of apprehended bias. His Honour agreed with the Minister's submission that in circumstances where the first applicant's claims for protection raised a claim of religious conversion, a fair-minded lay observer might expect the Tribunal to explore with her the basis for her conversion and the steps she had taken leading to such conversion. His Honour held that there was nothing in the circumstances of the case that might give rise to any apprehension of bias. 23 As to the third ground, the primary judge was not persuaded that the Tribunal's paraphrasing and abbreviation of the first applicant's evidence bespoke a misunderstanding of it. His Honour considered that it was a reasonable, if shorthand, reflection of what the first applicant said. Further, the applicants did not seek to identify in what way any misunderstanding of the sort they sought to identify might bear on the outcome of the review. 24 The primary judge held that jurisdictional error had not been demonstrated. His Honour dismissed the application with costs.

Consideration of the merits 25 The notice of appeal describes the grounds of appeal as follows: (1) There was an insufficient logical or evidentiary basis for the Tribunal to impugn the credibility of the first applicant regarding her knowledge of the Christian denominations or her reasons for preferring the Protestant Pentecostal branch of Christianity. (2) Failure to consider the claims of the third and fourth applicants. (3) There was an insufficient logical or evidentiary basis for the Tribunal to find that the applicants were not "genuine" Christians after finding that the applicants were baptised, attend Bible classes and church services. (4) Misapplication of law or failure to ask the correct question regarding the applicants' conversion from Islam to Christianity under s 91R(3) of the Act and the refugee criterion. (5) Misapplication of law or failure to ask the correct question regarding the applicants' conversion from Islam to Christianity under the complementary criterion. (6) Jurisdictional error concerning the certificate notification regarding the non-disclosure of information under s 438 of the Act. 26 The notice of appeal is a lengthy document that sets out a great deal of evidence and argument, but the extracts set out above serve to describe the substance of the grounds. 27 In support of the first ground, the applicants rely upon Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, where Kenny and Rares JJ observed at [39] that: Where the Tribunal rejects an applicant's claim based on perceived deficiencies and 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 reasonably be expected to know. 28 The applicants contend that the primary judge erred by finding: …I am not persuaded that the Tribunal's paraphrasing and abbreviation of the first applicant's evidence bespoke a misunderstanding of it. It seems to me to be a reasonable, if shorthand, reflection of what she said. In any event, the applicants did not seek to identify in what way any misunderstanding of the sort they sought to identify might have had a bearing on the outcome of the review. 29 The applicants refer to the Tribunal's findings at [30] and [56] of its decision record. They also refer to passages from the transcript of the hearing before the Tribunal which they say: …clearly demonstrates that the Tribunal misinterpreted, misconstrued or misunderstood the testimony of the first applicant as summarised at [30] of the decision record and therefore wrongly concluded at [56] that the first appellant "had not explored any other religions" or did not display any significant knowledge of the other branches of Christianity. 30 After setting out passages from the transcript, the applicants merely assert that the primary judge "therefore" erred by finding that the Tribunal did not fail to have proper regard to, or did not fail to consider, the first applicant's claims and evidence after misunderstanding her testimony. The applicants' submissions do not explain precisely what misunderstanding the Tribunal had of the first applicant's testimony, or why such misunderstanding would amount to jurisdictional error. 31 The Tribunal had the advantage of actually interviewing the first applicant, and I cannot conclude that the findings made by the Tribunal at [30] and [56] were not open to the Tribunal on the basis of its understanding of her testimony. Further, I cannot see that the Tribunal's findings at [30] and [56] involve any impugning of her credibility on the grounds that she was ignorant of elements of the faith that she professed. Instead, the Tribunal considered it implausible that the first applicant would immediately join the Pentecostal church without any exploration of the options open to her, and apparently considered her explanations for not exploring such options implausible. While minds may differ as to the significance of those matters, I cannot see that it was illogical for the Tribunal to rely upon them as providing a basis, along with other matters, for its conclusion that the first applicant's claims were not credible. For these reasons, I do not consider that the applicant's first ground has any reasonable prospect of success. 32 In support of their second ground, the applicants submit the Tribunal committed jurisdictional error by failing to examine and deal with the first applicant's claims, or an integer of those claims, with regard to the real risk of harm faced by her children, the third and fourth applicants, under the refugee or complementary protection criteria. They contend, alternatively, that the Tribunal erred by failing to consider the separate nature and basis of the claims of the third and fourth applicants. The applicants rely upon Dranichnokov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, where Gummow and Callinan JJ observed at [24]: To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnokov nature justice. 33 At the time of the Tribunal's decision, s 36 of the Act provided, relevantly: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa. 34 The first and second applicants completed their application forms for protection visas on the basis of their own claims for protection. In other words, their applications were made under s 36(2)(a) and (aa) of the Act. On the other hand, the children's applications were made on the basis of being members of the first and second applicants' family unit. Their claims were made under s 36(2)(b) and (c) of the Act. The success of their applications depended upon the success of the first and second applicants' applications. 35 In SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487, the Full Court considered a case where a father, mother and daughter applied for protection visas, but only the daughter claimed to be a refugee. The mother and father ticked the relevant questions in Part B of the application form to indicate that they did not have claims to be refugees, and applied as part of the daughter's family unit. At a later time, the mother and father completed Part C, which was required to be completed by people who wished to submit their own claims for protection, and sent it to the Tribunal. The issue before the Full Court was whether the mother (SZGME) had previously made an application for a protection visas, such that s 48A of the Act prevented her from making another application. 36 The plurality of the Full Court held, relevantly: 73. If there was a valid application for a protection visa by the mother as a family unit member, it was refused by the delegate. The refusal of this application was sought to be reviewed. In such circumstances, it is difficult to see why SZGME could not, before the Tribunal, change the basis for her claim to such a visa from being a member of a family unit to her own fears of persecution… … 87 If a valid application for a protection visa was made (as it was) and if a decision was made to refuse a protection visa (as it was), the process of review was engaged upon that decision. The expressed basis to supplant the decision with a favourable one under s 415 was made on new grounds (the separate claims). The decision under review should be not be confined to the original basis for the claimed protection visa. … 93 Having sought review in the Tribunal of a decision to refuse to grant a protection visa based on a valid (on this hypothesis) application, SZGME, through her agent, made it clear to the Tribunal that she wished to have the decision reviewed on the basis that she had her own claims. Within its remit of reviewing the decision not to grant a protection visa, the Tribunal had authority and an obligation to consider whether SZGME met the criteria for a grant of a protection visa. There was a valid application (on this hypothesis). Therefore, Li 103 FCR 486 did not require the conclusion that the Tribunal had no power to grant or refuse a visa, through the exercise of its power under s 415. 37 However, the Tribunal is not required to deal with claims that are not articulated or do not clearly arise from the materials before it: NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [60]. Further, it is not open for an applicant to reformulate his or her claims on an entirely different basis that may occur to the applicant or his or her lawyers at a later time: S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]; NABE at [58]; SDAQ v Minister for Immigration and Multicultural Affairs (2003) 129 FCR 137 at [19]. 38 The questions in the present case are whether it was asserted before the Tribunal on behalf of the third and fourth applicants that they had changed the basis of their applications so as to make their own claims to be refugees, and whether any such assertion was made with sufficient clarity. The starting point is that no independent claims were made in the third and fourth applicants' applications for protection visas. The first applicant did, however, assert in her evidence that she intended to raise their children as Christians. There was also evidence that the children attended the Pentecostal church and had a commitment to Christianity. The first applicant asserted that she did not want to endanger the lives of the children in Iran. At several points in her evidence, the first applicant referred to her children being Christian and the possibility of them living in fear in Iran and their lives being in danger. 39 However, no amended application forms were submitted claiming that the third and fourth applicants were now making their own claims for protection (unlike in SZGME). It was not otherwise asserted before the Tribunal that the third and fourth applicants were making their own claims. Further, there was a lack of detail provided by the first applicant as to why they would be in danger as Christians in Iran. She claimed to fear harm as an apostate, but made no claim that the third and fourth applicants would also be regarded as apostates. The evidence that the first applicant feared that her children would be in danger does not convey any clear statement that separate claims were now being made on behalf of the children. Further, the applicants were represented by a migration agent before the Tribunal and his submissions did not suggest that the fundamental basis of the third and fourth applicants' claims had been changed. 40 The claims of the third and fourth applicants were considered by the Tribunal in accordance with their application forms, namely as members of the family unit of the first and second applicants. It was not articulated, nor did it clearly arise from the material before the Tribunal, that the third and fourth applicants were making claims for protection in their own right. The Tribunal was not required to consider the criteria for an application that was never made: see NABE at [62]. In my opinion, the applicants' second ground does not have sufficient prospects of success to warrant an extension of time to appeal. 41 The applicants' third ground contends that there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicants were not "genuine" Christians after finding that they were baptised and attend Bible classes and Church services. However, the Tribunal found that their claims to have converted to Christianity were not credible. The Tribunal did not accept that their activities within the Church demonstrated that their conversions were genuine. That was clearly a logical basis for the Tribunal to find that the applicants were not genuine Christians. There was also a sufficient evidentiary basis for that finding, being the Tribunal's findings that their evidence contained inconsistencies and implausibilities and upon their motivation for making claims they had converted. There is no substance in the applicants' third ground. 42 The applicants' fourth ground asserts that the Tribunal misapplied the law or failed to ask the correct question regarding the applicants' conversion from Islam to Christianity under s 91R(3) of the Act and the Refugee Criterion. Section 91R of the Migration Act (as in force at the time of the Tribunal's decision), provided, relevantly: In determining whether the person has a well-founded fear of being persecuted…disregard any conduct engaged by the person in Australia unless…that person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claims to be a refugee… 43 In Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, French CJ and Bell J observed at [9]: The legislative purpose of s 91R(3) as disclosed in the second reading speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). [See also Crennan and Kiefel JJ at [64].] 44 The applicants rely upon SZNCT & SZNCU v Minister for Immigration [2009] FMCA 233, where Nicholls FM said at [92] that s 91R(3) does not contemplate a situation that where children are sole applicants (not part of the parents' application), but are dependent entirely on the consequences of claims made by their parent or parents, such conduct should be treated as the conduct of the children. 45 The applicants point out that at [60] the Tribunal found that the: …applicants' actions regarding their church attendance, attendance at religious education and baptism have, as with the fabricated claims regarding prior interest in Christianity being done deliberately and with the sole purpose of strengthening their refugee claim. 46 The applicants submit that in this passage, the Tribunal misapplied s 91R(3) of the Act by conflating the conduct of the first and second applicants with the conduct of the third and fourth applicants and by finding that the conduct of the third and fourth applicants was for the sole purpose of strengthening their refugee claims. 47 In my opinion, the Tribunal's reference at [60] to "the applicants' actions" was intended to be a reference to the actions of the first and second applicants, not the third and fourth applicants. The decision read as a whole demonstrates that the Tribunal was concerned with questions of the first and second applicants' claims to fear harm in Iran, and recognised that the third and fourth applicants' claims were merely as family members of the first and second applicants. Accordingly, the Tribunal's reference to "the applicants" rather than to the "first and second applicants" was no more than a slip, and was not a finding concerning the conduct of the third and fourth applicants. I do not consider that the applicants' fourth ground has any reasonable prospects of success. 48 The applicants' fifth ground is that the Tribunal misapplied the law and failed to ask the correct question regarding the applicants' conversion from Islam to Christianity under the complementary protection criterion. The applicants submit that the correct question was not whether their apparent conversion from Islam to Christianity was genuine or disingenuous, but whether they faced a real risk of harm, given that apostasy is punishable by death in Iran, irrespective of whether conversion was genuine or disingenuous. The Tribunal not only did not accept that the applicants had genuinely converted to Christianity, but found that they had not and would not seek to practice or promote Christianity in Iran, and that no one in Iran was aware, or likely to become aware, that they had expressed any interest in Christianity. The Tribunal focussed on the correct question, namely whether, as a necessary and foreseeable consequence of their removal from Australia to Iran, there was a real risk that the first and second applicants would suffer significant harm. I cannot see that there was any reasonably arguable error in the Tribunal's consideration of the complementary protection criterion. 49 The applicants' sixth ground concerns an allegation of jurisdictional error in respect of the non-disclosure of information the subject of certificates under s 438 of the Act. The Minister has filed an affidavit annexing two documents that were the subject of the certificates. I understand the Minister to concede that the certificates were invalidly issued as the preconditions for such certificates were not met. 50 The delivery of this judgment has been delayed while awaiting the judgment of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. In that case, the majority held at [37]-[38] that notification to the Tribunal from the Secretary of the Department of Immigration and Border Protection that s 438 of the Act applies in relation to a document triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. However, breach of that obligation only constitutes jurisdictional error if the breach is material: at [38]. The breach is material if it operates to deny the applicant an opportunity to give evidence and make arguments to the Tribunal and to deprive the applicant of a possibility of a successful outcome: at [38]. 51 Further, in SZMTA the majority accepted that an incorrect, and therefore invalid, notification by the Secretary that s 438 applies in relation to a document or information can give rise to jurisdictional error in the conduct of a review: at [41]. However, the breach must be material, and will only be material if compliance could realistically have resulted in a different decision: at [45]. The majority said that, absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court can be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision: at [47]. 52 The first of the two documents the subject of a s 438 certificate consists of an email from one Departmental officer to another asking for initiation of an "effective protection check" for the first applicant in respect of the Netherlands, and a response saying that the request had been forwarded to the Berlin post and noting that it had taken one to two months for such requests to be processed in the past. The first applicant had disclosed in her application for a protection visa that she had previously made an unsuccessful application for protection in the Netherlands. The email appears to ask for information about that application. 53 The second document seems to be a response provided by Dutch immigration authorities. It gives the first applicant's name, date of birth and nationality and similar details for her father, mother, sister, husband and daughters. It also indicates that the first applicant had applied for asylum and been rejected and had left the country. It states that the first applicant is not entitled to re-enter and reside in the Netherlands and is not a Dutch national. 54 The emails reveal no more relevant information than had already been provided by the first applicant in her application for a protection visa. In its decision record, the Tribunal observed that the first applicant had made an unsuccessful application for protection in the Netherlands, but that was not a matter suggested by the Tribunal to be adverse to her claims. The Tribunal made no reference in its decision-record to the emails that were the subject of the s 438 certificates, and I infer that they were considered by the Tribunal to be immaterial. As the documents were not material to the outcome, the issuing of the invalid certificates did not result in any jurisdictional error on the part of the Tribunal.

Conclusion 55 The question of whether an extension of time within which to file a notice of appeal should be granted is a function of factors including the length of the delay, the adequacy of the explanation for the delay, the public interest in the finality of litigation in a timely way, and the merits of the proposed grounds of appeal. The merits are also relevant to whether the applicants would be granted leave in any appeal to raise the five grounds that were not raised before the primary judge (giving the applicants the benefit of the doubt, I accept that the first ground was raised). Taking into account the length of the delay, the inadequacy of the explanation and the public interest factors, I consider that the applicants' prospects of success are inadequate to justify an extension of time. 56 The application for an extension of time will be dismissed. The applicant should pay the first respondent's costs of the application. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

SCHEDULE OF PARTIES NSD 915 of 2016 Applicants Fourth Applicant: SZTOU