FEDERAL COURT OF AUSTRALIA

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION AND SUMMARY

1        This is an appeal from a decision of the Federal Circuit Court dismissing the appellant’s application for review of a decision made by the Refugee Review Tribunal (the Tribunal) on 20 March 2013. The Tribunal affirmed the decision of the first respondent’s delegate that the appellant was not a person to whom Australia owed protection obligations and therefore could not be granted a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Migration Act).

2        The appellant’s grounds of review centre on the way the Tribunal dealt with his claim, put in several ways, that he was no longer a follower of Islam. He challenges the way the Tribunal questioned him about his claim to be agnostic, and contends that the Tribunal did not separately consider his claim that he would be seen as an apostate if returned to Iran. Finally, he contends the Tribunal failed to carry out any objective assessment of whether his fear of persecution in Iran for his anti-Islamic views was well founded. The Federal Circuit Court found that the Tribunal’s approach to the appellant’s claims was not affected by jurisdictional error. We agree with that conclusion. For the reasons we set out below, the appeal will be dismissed.

THE APPELLANT’S CLAIMS FOR PROTECTION

3        The appellant arrived in Australia on 19 May 2012, having left Iran on 20 April 2012 and come to Australia by boat from Indonesia. On 27 May 2012, an “entry interview” with him was conducted by an officer of the then Department of Immigration and Citizenship. The content of that entry interview assumes some importance in the Tribunal’s decision, in the application before the Federal Circuit Court and in the appeal to this Court.

4        The Tribunal states in its reasons that it listened to the tape of the appellant’s entry interview. There is no transcript of that recording in evidence before the Court. A typewritten form headed “Irregular Maritime Arrival Entry Interview” relating to the appellant is in evidence before the Court.

5        The document records the interview as lasting over two hours. The officer conducting the interview is recorded on the first page. We infer from the content and structure of the document that it has been filled out by the interviewing officer. How closely it reflects what is recorded on the interview tape is something the Court is unable to ascertain.

6        The first and second pages of that document set out a seven-paragraph explanation expressed in the first person about the interview and its uses, which is clearly designed to be read out to the person being interviewed. A box is checked “yes” at the end of this explanation in answer to the question “Do you understand what I have said?”. The document explains the purpose of the interview as an “opportunity to provide any reasons why you should not be removed from Australia”. It also contains a warning to the effect that “You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said”.

7        In a box entitled “Why did you leave your country of nationality (country of residence)?”, the following appears:

Social issues:

My sport, I was doing power lifting, there was a lot of injustice done to me in my sport also I was stopped from studying at University by the head of the University because I didn’t finish my Military service. I was told to finish the service before I could resume study but when I came back my place was gone at Uni.

Q: What do mean a lot of injustices were done to you in your sport? A: The sport of body building and weight lifting is not valued and there is no institute in my country, you need contacts. There were twice injustices done against me.

Q: Tell me what injustices? A: 1 year after my military I staring taking part in state competition, I should have got 2nd place but was given 3rd place, I went to fight this but was then put into 5th in my category, this person wasn’t even in the list of competitors.

In my country there is a lot of favoritism, if you don’t know someone that works in the government, you suffer, our family business suffered because of the government. When my father passed away the government made life for my family and me difficult, they did not support us.

Economical Problem:

There is no economic stability, the everyday pressures are too much for our business, it is very difficult to make a living.

Religious beliefs:

Due to all these things, we become interested on religion, we looked on the internet, with friends we got together and discussed issues and came to the conclusion that everything was a big lie, the Imans do anything they like.

If you have a different religion or even drink an alcoholic drink you will be punished.

Also once I had an accident because I had a drink in the afternoon, I was trying to evade the security forces, I was a passenger on a motorbike and we had an accident in fear of being caught by them.

Religion, most of the things they tell us are to rip us us [sic]. Everything is done was force, prayer is by force, fasting is done by force.

8        The document also recorded the appellant as stating he had paid smugglers US$5000 in total for his passage, that he met a person in Tehran about five months prior to leaving Iran and this person put him in touch with one of the smugglers. He stated he spoke to this person on the phone and met his brother. He said he paid this person US$1000 in Tehran at the smuggler’s brother’s shop. He could not specify the date he paid. He then stated he paid the remaining US$4000 to another smuggler when he arrived in Indonesia.

9        The appellant subsequently was assigned a migration agent to assist him in making a claim for protection and on 11 August 2012 he applied for a Protection (Class XA) visa. He was interviewed by the Minister’s delegate in relation to that application on 15 August 2012 at Curtin Immigration Detention Centre. He had with him a number of documents, but not his Iranian passport, which on his protection visa application he stated he had thrown into the ocean. However, he did have with him copies of his high school and “pre-university” certificates, his birth certificate, national ID card and military discharge certificate.

10        In support of his application, the appellant made a statutory declaration, setting out his background relevant to his application and the basis for his claims for protection. At the start of this document, having set out his age and place of birth, he identified himself in the following way:

I am Persian and I am Agnostic.

11        The appellant’s claims, as expressed in writing and to the delegate, were as follows. He claimed that he was Shia Muslim, and his family were practising Shia. He said as a teenager he began privately to question why what he described as “this foreign religion (spoken in … a foreign language)” was being forced upon the Persian people. He described his increasing dislike of the censorship of other religions imposed by the Iranian regime on its people, and how his growing dislike of Islam made him dislike school, his grades began to slip and he avoided Islamic classes and prayers. His low grades meant he could not qualify for a good state University and went to what he described as “one of Iran’s lower quality institutions”. He encountered problems at University with the Herasat for drinking and for being seen with women. He claimed to have begun at University to discuss his views about Islam with other students he trusted. He claimed to have been expelled from University and said he was told he may be re-enrolled only after his mother intervened. He described his time in compulsory military service as a time where he continued to show disrespect to Islam, for which his period of military service was extended by three months.

12        He described problems over the years with the Basij, in relation to being found with alcohol or being seen in public with women to whom he was not married. He described that, from about September 2011, while discussing his views on Islam with a friend of his who was a customer in his brother’s restaurant, the friend invited him to join a group of people who met to discuss matters relating to the criticism of Islam. The appellant claimed he accepted the invitation and subsequently attended these gatherings regularly until about mid-April 2012.

13        The appellant also described his participation in a weightlifting competition in Tehran in February 2012. He claimed to have commenced weightlifting after leaving the military. He claimed to have won second place but, because on his entry form he refused to declare his religion as Islam, he was demoted to third place, and then to fifth place after he protested his initial demotion. He claimed to have been questioned outside the weightlifting centre afterwards by members of the Herasat.

14        The appellant then described an event at a gathering of the group he attended with his friend, in which members of the Basij broke into the meeting and began arresting people. The appellant claimed to have fled to the back of the apartment, smashed a window and escaped. After seeking treatment at a private medical centre for injuries received in breaking the window, he claimed to have started making calls to be put in touch with a people smuggler who could assist him in fleeing the country. He claimed to have contacted his brother to ask him to bring his belongings and passport, that he stayed on the street and then went straight to the international airport, leaving at 5 am the next morning.

15        Relevantly to the issues on the appeal, he claimed, amongst other things, to fear he would be harmed or mistreated if returned to Iran “for reasons of my religion as an Agnostic and my un-Islamic views”, and because he was a member of a particular social group which he identified as “apostates”.

16        The Minister’s delegate accepted the appellant was from Iran, and was an agnostic. The delegate found the appellant’s expression of agnosticism had been private, the gatherings he purportedly participated in did not have the anti-Islamic profile he claimed. The delegate identified a series of inconsistencies in the appellant’s claims, as well as inconsistencies between what he said at his entry interview in May 2012 and how his claims were expressed in his visa application. The delegate noted that the appellant’s military discharge papers did not reveal that he had been forced to complete an extra three months’ military training as he claimed and rejected the appellant’s explanations that the papers were wrong. As to the appellant’s claims about demotion in the weightlifting event, the delegate found that the treatment may have been unfair but did not amount to serious harm for the purposes of s 91R(2) of the Migration Act. The delegate refused to grant the appellant a protection visa.

17        The appellant applied to the Tribunal for review of that decision on 6 November 2012. Accompanying that review application was a submission from the appellant’s migration agent, which set out again the relevant personal history of the appellant and a summary of his claims. It expanded on some issues in the appellant’s statutory declaration. The submission stated, amongst other things that

[a]lthough the Applicant is not from a marginalised religious minority he would be considered an Apostate and subject to state-sanctioned punishment….

18        The document supported this submission by references to country information. The document also submitted the Tribunal must look at the appellant’s circumstances cumulatively and submitted that the appellant was, amongst other reasons, at risk of persecution in Iran due to his “abandonment of Islam” and his “attendance at anti-Islamic gatherings which became known to the Iranian authorities”.

19        The Tribunal conducted a hearing on 9 January 2013, by video link from Sydney, with the appellant who was in Melbourne. The interpreter and the appellant’s migration agent were also in Sydney. The evidence before the Court discloses that, at that hearing, the Tribunal handed the appellant’s migration agent a document headed “Independent Protections Assessment Office: IPA Country Advice Request”, dated 7 February 2012. This document contained considerable information about the situation in Iran for people who had renounced Islam. The information varied in its contemporaneity — some of it was almost a decade old, but in substance it made apparent the significant risks to specific groups of people in Iran who renounced Islam. The document recorded risk for those who identified as atheists, those Shia Muslims who renounced Islam and could be identified as apostates, and those from minority religions. The document suggested only individuals from those groups who “demonstrated” or “advertised” in public their non-adherence to Islam would face significant risks.

THE TRIBUNAL’S DECISION

20        The Tribunal affirmed the decision under review. Its reasons move sequentially through the appellant’s claims for protection, and what he said in support of those claims, from the time of his arrival in Australia and his entry interview, to his evidence before the Tribunal. The Tribunal’s reasons record that it listened to the tape recording of the appellant’s entry interview, and to his interview with the delegate.

21        The Tribunal’s reasons record in some detail the questions asked by the Tribunal of the appellant at the hearing. It is fair to say that the Tribunal probed the appellant about his claims to be an agnostic, and about his account of joining his friend’s group to discuss their opposition to Islam. Much of the Tribunal’s questioning sought to point out to the appellant what the Tribunal suggested were inconsistencies or omissions in the various accounts he had given since arriving in Australia about what had happened to him in Iran. The Tribunal also spent some time in its reasons recounting the contents of the appellant’s arrival entry interview, having requested a copy of the tape recording and having listened to it.

22        After the hearing, the Tribunal sent the appellant a letter pursuant to s 424A of the Migration Act. In that letter, the Tribunal put a number of matters to the appellant concerning inconsistencies between what he had said at his arrival interview and what he had subsequently said. Of importance to the issues on the appeal, the Tribunal stated:

At your arrival interview with an officer of the Department, which was held 27 May 2012, you were asked questions regarding your circumstances in Iran, the reasons you left the country, and the reasons you did not wish return there. At that interview you did not raise the claim that you were involved with an anti-government, anti-Islam, group in Iran; or that you were attending a meeting with the group when it was raided by the authorities; or that you escaped from the authorities and fled the country the next day. At the hearing with the Tribunal, on 9 January 2013, you were asked why you neglected to raise those claims at the arrival interview and you stated that you were not provided with the opportunity to raise all of your claims.

The Tribunal has listened to the arrival interview (a copy of which is attached for your consideration) and it has formed the view that you were given sufficient time and opportunity to provide all your claims during that interview.

The information is relevant to the review because the lack of consistency in your evidence raises doubts for the Tribunal as to whether you are providing a credible account of your circumstances in Iran. It raises doubts for the Tribunal as to whether you were involved with a group in Iran which met to discuss religion or politics or that you were forced to flee from Iran because you were a person of interest to the authorities. The Tribunal may find that you fabricated these claims to enhance your protection visa application and it may not accept that you were involved with a group in Iran or that you had difficulties with the authorities which necessitated your departure from Iran.

If the Tribunal relies on this information in making its decision, it may affirm the delegate’s decision and you may not be granted a protection visa.

…

At your arrival interview you indicated that you began to plan to leave Iran two years before your departure. In your protection visa application you stated that your departure was a spontaneous response to the difficulties you were having with the authorities in Iran.

The information is relevant to the review because the lack of consistency in your evidence raises doubts for the Tribunal as to whether you are providing a credible account of your circumstances in Iran. It raises doubts for the Tribunal as to whether your departure from Iran was for the reasons provided in your protection visa application. It may find that you did not leave Iran because you were a person of interest to the authorities. The Tribunal may find that you fabricated these claims to enhance your protection visa application and it may not accept that you left Iran because you were a person of interest to the authorities.

If the Tribunal relies on this information in making its decision, it may affirm the delegate’s decision and you may not be granted a protection visa.

…

23        Aside from these issues, the Tribunal raised four other specific issues with the appellant, which we need not set out here.

24        The appellant’s migration agent responded on his behalf in writing, submitting that the interviewing officer only asked the appellant to give the “main points” of his claim. The migration agent also submitted that the appellant did talk about the group to which he belonged. The migration agent’s submission extracted two parts from the arrival interview to make good this submission, to which we refer below at [76] and [78]. These extracts are identified by the migration agent in footnotes to the submissions as passages transcribed from the arrival interview.

25        The Tribunal accepted parts of the appellant’s account of his life before he left Iran, for example that he was involved in the sport of “powerlifting” in Iran, that he was demoted in the powerlifting competition, that he had difficulty living in Iran and that he did not support the government of Iran. It concluded none of these were of such a nature as to constitute persecution and some had no Convention nexus. It accepted that the appellant left Iran seeking a different environment which offered him better opportunities and lifestyle options, but found that this lack of satisfaction with life in Iran did not constitute harm amounting to persecution for Convention purposes. It also rejected a number of other claims made by the appellant which are not relevant to the issues on appeal, including his claims to complementary protection.

26        On the claims relevant to issues raised in the appeal, the Tribunal was not satisfied, however, that he had provided “a credible account of his circumstances in Iran”, and stated it had formed the view he had “contrived most of his major claims to obtain a protection visa”. This included specific findings that he had contrived “all his claims relating to religion” and that the existence of his friend’s group and all the claims relating to this group “were fabricated” by the appellant. This latter finding led the Tribunal also to reject the suggestion by the appellant that he was a person of interest to the Basij. The Tribunal also specifically rejected the appellant’s claims about discrimination and harassment at his school and university, during his military service and at the powerlifting competition because he had expressed views against Islam. Nor did it accept his claims in relation to having been detained or harassed by Iranian authorities for mocking them, drinking or being seen with women.

27        The appellant sought review of the Tribunal’s decision in the Federal Circuit Court, pursuant to s 476 of the Migration Act.

THE FEDERAL CIRCUIT COURT’S JUDGMENT

28        Before the Federal Circuit Court, the appellant raised three grounds of review which the Court characterised as all relating to the way the Tribunal dealt with his claims to be agnostic.

29        The first ground was that the Tribunal’s questioning of the appellant about his claim to be an agnostic lacked a “sufficiently disclosed rational basis” to enable the Tribunal to conclude that the way the appellant answered its questions meant he had fabricated and contrived his claim to be agnostic. The second ground was seen by the Federal Circuit Court judge, correctly in our opinion, as “very closely interrelated” to the first ground and he dealt with them together.

30        These two grounds were based on the approach, set out by Jacobson J in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159 at [7]-[10], to exploring claims by a person said to fear persecution on the ground of religion. This case, and the authorities cited therein, developed out of a series of Tribunal decisions where the courts have been asked to scrutinise the manner and content of questioning by the Tribunal of applicants who claimed to adhere to a particular religion.

31        The Federal Circuit Court extracted two definitions of agnosticism:

As with so many matters to do with religion, minds might differ about what agnosticism is. According to the Oxford Shorter Dictionary, the primary meaning of “agnostic” is:

“A person who believes that nothing is known, or can be known, of the existence or nature of God or of anything beyond material phenomena.”

And the second meaning is:

“A person who is uncertain or non-committal about a certain thing.”

32        The Court then asked, rhetorically and correctly in our opinion, given that it is a belief system in which it is only believed that things cannot be known, how could questions be formulated so as to give rise to a cogent dogma in such a field? The Court also correctly identified that the appellant’s claims to be an agnostic, and to have abandoned Islam, were interrelated. The Court concluded the Tribunal’s process of testing the appellant’s claims was not unreasonable, and it was entitled to see his claims as vague and contradictory. The Court found the Tribunal properly appreciated the appellant’s claims and rejected them, although his Honour accepted the Tribunal did not in terms reject the claim of apostasy.

33        The third ground attacked the Tribunal’s credit findings. The appellant contended there was no logical connection between the evidence and the credit findings made by the Tribunal. The Federal Circuit Court judge rejected that contention in the following terms:

…

In my opinion, the difficulty faced by this ground is that the Tribunal made findings against the applicant based on his credibility, which it seems to me were well open to it. The Tribunal expressly traversed the applicant’s explanations for his failure to mention some critical aspects of his claims at his original entry interview. It rejected those explanations for reasons that, in my opinion, were at the very least open to it. The reality is that the Tribunal did not accept the account given of the meetings with [A] and his group. These were very important and were simply not mentioned at the first arrival interview, although they could have been.

Likewise, the Tribunal made finding that the applicant had embellished his difficulties with the authorities. Once again, this finding was clearly open to the Tribunal on the materials.

Similarly, the Tribunal’s finding that the applicant did not leave Iran because of the alleged incident with the Basij was wholly understandable, given the applicant’s original revelation that he had been contemplating leaving for approximately two years, and had been in contact with the people smugglers some five months before he actually left.

The applicant’s claims were, in a sense, part of a continuum. What he was saying was that he had started off by having reservations about Islam and these had gradually increased over time to a point where he had become agnostic and apostate. It was the applicant’s case that his involvement with like-minded persons had given rise to the pressing and urgent necessity to leave Iran.

Given that the Tribunal, for reasons that do not appear to me to be open to effective challenge, concluded that all the critical latter events did not occur, there was nothing irrational or illogical in the Tribunal determining that earlier parts of the applicant’s recitation were likewise inventions. The Tribunal rejected the applicant’s evidence in relation to his alleged agnosticism and apostasy in any event.

…

34        The appellant now appeals to this Court.

THE APPELLANT’S ARGUMENTS

35        At the hearing of the appeal, and consequent upon some exchanges between the Court and counsel for the appellant in which counsel foreshadowed contentions that aspects of the Tribunal’s reasoning were irrational, unreasonable or illogical, the appellant sought and was granted leave to file an application to amend his notice of appeal. Certain other consequential orders were made. The appellant did not file such an application and his appeal is to be considered against the amended notice of appeal as it stood on the hearing of the appeal.

36        The appellant has three grounds of appeal from the Federal Circuit Court’s decision. First, he contends the Federal Circuit Court erred in not finding the Tribunal failed sufficiently to disclose a rational basis for concluding that the answers given by the appellant in relation to his professed agnosticism were not sufficient to establish he was agnostic. If that contention is correct, the appellant submits the Tribunal was not entitled to find his claims to be an agnostic to be contrived.

37        He then contends that the Tribunal failed to perform its statutory task in two ways. We understand these to be put in the alternative. By his second ground of appeal he contends the Tribunal, having concluded the appellant had contrived his claim to be an agnostic, was required to consider separately and independently his claim to be an apostate, which emanated from his rejection of Islam and did not depend on whether he was an agnostic or not.

38        By his third ground of appeal he contends the Tribunal was required to, but did not, determine whether the appellant’s fear of persecution was objectively well founded, even if it did not believe the appellant’s particular account of what had happened to him in the past in Iran.

CONSIDERATION

Third ground

39        The third ground of appeal can be shortly disposed of. Having concluded, as it did (and subject to the other arguments about error attaching to this conclusion) that the appellant had no genuine subjective fear of persecution, the Tribunal was not obliged to go on and determine whether there was an objective basis for any fear of persecution. This is not a situation of an immutable attribute, such as race, or skin colour, where it may be that regardless of what a person says he or she fears, or regardless of what he or she says has happened in the past, the immutable attribute possessed by the person may mean that there is a well-founded basis for the fear.

40        One might think, for example, of an ethnic minority in a country, where the objective evidence well establishes a risk of persecution based only on ethnicity. In those circumstances, even if a Tribunal entirely disbelieves the account given by a claimant of what happened to her or him prior to arriving in Australia, whether there is an objective basis for her or his fear may still need to be considered because the Convention attribute is immutable and, in fact, exists. One of the principal tasks in any review is for the Tribunal to determine as a matter of fact what it considered was likely to happen to an applicant on return to her or his country of nationality or habitual residence, irrespective of whether it believed her or his account of what had happened in the past: S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [73]-[74] per Gummow and Hayne JJ; SBZF v Minister for Immigration and Citizenship (2008) 104 ALD 415; [2008] FCA 1486 at [51] per Lander J.

41        In contrast, where a person’s fear of persecution on a Convention ground is claimed to arise out of factual circumstances particular to that person, which are said to have occurred in the past, or is based on a Convention attribute which is not immutable, a determination by the decision-maker as to the veracity of those claims may provide sufficient foundation for the necessary predictive and speculative exercise about what will happen to that person upon return to her or his country of nationality.

42        The appellant’s claims here were in this latter category, save for his claims (not in issue on this appeal) to fear persecution by reason of being a failed asylum-seeker. Notwithstanding it may not have been obliged to do so in its review, the Tribunal did turn its mind to whether the appellant’s fear was objectively well founded, despite its disbelief of his account. In its reasons is the following passage:

The Tribunal referred to the issue of Iranian citizens abandoning Islam. It commented that it had information from external sources relating to this issue. The Tribunal gave the applicant’s adviser a copy of a research advice and commented that the articles/reports in that advice indicated to the applicant that it was commonly outspoken citizens of Iran, who expressed views on religion, who were at risk of attracting the adverse attention of the Iranian authorities. The Tribunal commented that many citizens of Iran were not committed Muslims, and did not practice Islam, but they did not attract the adverse attention of the authorities. The Tribunal commented that the applicant’s description of his circumstances in Iran, apart from his involvement with [A’s] group, did not indicate to the Tribunal that he expressed views on religion or the government which attracted or would attract the adverse interest of the authorities in Iran. The applicant stated that whatever responses he provided the Tribunal has its own perceptions and its own understanding. He did not comment further.

43        This passage reveals the Tribunal was aware of the need to look objectively at what might occur to the appellant when he returned. It had sought further information from the appellant on this issue, in order to determine whether the position reflected in the country information (namely that those who were vocal in their opposition to or abandonment of Islam could be subject to persecution) was applicable to the appellant. The appellant did not, on the Tribunal’s account, provide any further information. The Tribunal returned to this issue at the end of its reasons and found that the appellant did not face any risk of persecution on his return. It said:

The Tribunal has accepted the applicant’s claim that he does not support the government of Iran. It has considered whether the applicant’s views regarding the government of Iran will place him at risk of harm in Iran. The applicant’s evidence regarding his circumstances in Iran, apart from the evidence which the Tribunal has already rejected, indicates to the Tribunal that the applicant was not implicated in any activities which placed him at risk of attracting the adverse interest of the authorities in Iran. The applicant’s evidence at his arrival interview indicates that he had no involvement in political activities or any activities against the government of Iran. The Tribunal has already rejected the applicant’s claim that he was previously, or at the time of his departure from Iran, a person of interest to the authorities in Iran. The Tribunal finds that similar circumstances will continue for the applicant in the reasonably foreseeable future. It finds that just having views against the government does not place the applicant at risk of harm by the authorities in Iran. It finds that the applicant’s views regarding the government in Iran, and the way he expresses those views, will not attract the adverse interest of the authorities in Iran.

44        This finding was based not on its disbelief of his account of what had happened to him in the past in Iran, but on his failure to satisfy the Tribunal that he would fall into any of the categories the country information identified as risk categories on his return, even if his accounts of what had happened to him in the past were not accepted.

45        This ground is not made out.

First ground

46        The first ground, we consider, incorrectly attributes to the current Tribunal decision the error discussed by Jacobson J in SZOCT 189 FCR 577; [2010] FCAFC 159 and similar authorities.

47        The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge: see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[32]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [37] per Kenny J; SZOCT 189 FCR 577; [2010] FCAFC 159 at [41], [50] per Buchanan J; SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495; [2012] FCA 451 at [34]-[36] per Bromberg J.

48        In SZOCT 189 FCR 577; [2010] FCAFC 159, illustrating the reasoning process of a tribunal which failed to disclose the requisite rational basis, Jacobson J said:

The vice in the Tribunal’s reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the visa applicant’s failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008.

Nor, in my opinion, is the Tribunal’s finding based on any probative material in the sense referred to in the High Court authorities to which I have referred. This can be tested by asking whether there is any probative material disclosed in the Tribunal’s reasons to support its conclusion that it was not satisfied that he had a level of knowledge of the Bible that a person might reasonably be expected to have if they had been a believer in, or practitioner of Christianity in China during the period in question.

The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role.

49        In this review, the Tribunal from the outset appeared sceptical of the appellant’s entire account of what had happened to him in Iran, and was sceptical, it seems to us, of the appellant’s motives for seeking asylum. No transcript of the hearing before the Tribunal was adduced in evidence, and in the absence of the transcript and any other evidence to the contrary, we take the Tribunal’s account of what it asked the appellant during the hearing to be correct. Further, there was a detailed letter sent pursuant to s 424A of the Migration Act outlining six separate areas of concern the Tribunal had about the appellant’s account.

50        The Tribunal is not precluded from developing some scepticism as it performs its task, based on the evidence and other material before it, so long as it also approaches the review of the delegate’s decision with a mind open to persuasion, and goes about its task in a procedurally fair way in accordance with the requirements of the Migration Act and the common law.

51        The appellant’s written statement before the delegate puts as one of its first claims: “I am Persian and I am Agnostic”. It is also clear that the appellant himself sought to draw a connection between his abandonment of Islam and his identification as an agnostic. On his own account, he became mistrustful of and disenchanted with Islam first, and abandoned it. His account was less clear as to when he began identifying as an agnostic, however there is no doubt that he placed that self-identification prominently in his claims for protection.

52        The Tribunal sought to test that self-identification. The passages in its reasons which recount the questions it asked and the answers the appellant gave did disclose an exchange between the Tribunal and the applicant which was not straightforward:

The Tribunal asked the applicant how he expressed his belief in god. He stated that he thanked him or her. He was asked how he did that. The applicant stated that every religion has its own method and with his religion there was no particular way to express it. He stated that it was an inner relationship. He was asked if he did anything to express his beliefs and views as an agnostic. He stated that he did nothing to express his beliefs and views. The Tribunal asked if he had any rituals or activities relating to his beliefs. He stated that there were no activities in agnosticism. The Tribunal commented that it was not referring to organised religion. It commented that persons who identified as Moslems and Christians had their own unique way of expressing their beliefs even if they also participated in organised religion. He was asked how he expressed his agnosticism. He did not directly provide a reply. The Tribunal commented that many citizens from Iran who come to Australia seeking asylum describe themselves as agnostics. It commented that some provided complicated explanations to describe their beliefs while others appeared not to have thought about the issue or done anything to express their views on religion, god or agnosticism. The applicant was asked where he placed himself along that continuum. He stated he was with the people who did nothing. He stated that agnosticism does not require any particular activities. He stated that religion caused misery and it diminished god. The Tribunal commented that despite the applicant’s claim that he changed his religion, he appeared not to have a religion or do anything relating to religion. The applicant stated that his god did not require him to do anything. The Tribunal commented that it may find that the applicant did nothing to express his religion or beliefs because he had no religion or beliefs to express.

The Tribunal asked the applicant why he decided to be agnostic. It commented that he could have rejected religion entirely. The applicant stated that it was not possible to reject the existence of god. The Tribunal commented that many people do. He asked why he felt compelled to reject his religion but retain his belief in god. The applicant stated that he believed in god. He was asked what he thought would happen to his spirit or soul when he died. The applicant stated that he understood what the member was talking about. He stated that unlike atheists, agnostics believed that after death the soul still exists. He was asked where it existed. He stated that there was no particular place. He stated that in his religion the soul existed in either this world or some other world. The Tribunal asked the applicant if he had read any literature relating to the beliefs and views of other agnostics. He stated that he read ‘The world after death’ by Paulo Coelho. He was asked how that book influenced or informed his views on agnosticism. He stated that he read it the year he decided to believe only in god. He was asked what he learned from the book and how it assisted him to become an agnostic. He stated that he learnt everything he had discussed with the Tribunal at the hearing.

53        The appellant urged the Court to see these passages as reflecting the kind of impermissible questioning the authorities describe. The questioning could be characterised as some kind of goading by the Tribunal member of the appellant, to lead him to make more and more statements which were not consistent with his professed agnosticism. That would be a highly unfair and inappropriate approach for the Tribunal to take. As the Federal Circuit Court’s rhetorical questions implied, it could be said to reveal some ignorance on behalf of the Tribunal member about agnosticism, which in turn makes it difficult to see the point of the questions. Or, it could be the adoption of a series of probing questions, not necessarily all tending in one direction, designed to test the genuineness of the appellant’s professed agnosticism. Although such questioning might not be the most appropriate way to go about testing the genuineness of a visa applicant’s professed beliefs, it is not so irrational as to lack a connection with the findings the Tribunal ultimately reached. Ordinarily, an assessment of a person’s claim to be an adherent to a particular religion may involve an examination of the person’s knowledge of, connection with and participation in that religion by reference to evidence of what may reasonably be expected of a genuine adherent in the same or like circumstances. The Tribunal did not make an assessment of that kind in relation to the applicant’s claim to be an agnostic.

54        When the Tribunal came to make its finding (to which we have referred at [26] above) that the appellant “contrived” all his claims relating to religion, it did that including by relying upon a finding that the appellant’s evidence regarding his religious beliefs and how he expressed them was “vague”. That finding appears to have been made on the basis that the appellant’s religious beliefs included his agnosticism. To the extent that this finding was intended to deal with the appellant’s lack of knowledge about agnosticism, the finding may be questionable. That is because there was no comparator against which a qualitative assessment of that kind could have been rationally made. However, a fair reading of this part of the Tribunal’s reasons makes it clear that it was a lack of interest in religion per se, rather than a lack of understanding of agnosticism, which led to the Tribunal’s view that the appellant did not have a “genuine interest in religion” or correspondingly a “genuine interest in agnosticism”. In any event, it is evident that the Tribunal articulated a broader basis for its disbelief of the appellant’s asserted views about religion and did not in that respect rely solely on its rejection of the appellant’s claim to be an agnostic.

55        We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.

56        On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

57        Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

Second ground

58        This aspect of the appeal is less straightforward. The ground of appeal is that the Federal Circuit Court erred in not finding the Tribunal had failed to deal with the appellant’s claim that he would be considered an apostate on his return to Iran and subject to persecution for that reason.

59        As we have explained at [35] above, the appellant sought and was granted leave to file and serve any amended notice of appeal raising a different challenge to the way the Tribunal dealt with the appellant’s apostasy claim, but elected not to do so. Accordingly, the Tribunal’s treatment of the appellant’s apostasy claim, and the Federal Circuit Court’s conclusion about it, are to be considered on the appeal only by reference to the contention that the Tribunal failed to deal with his apostasy claim. Expressed in that way, we consider there is no substance to this ground of appeal.

60        The Federal Circuit Court found that, although the Tribunal did not “in terms” reject the claim that the appellant would be seen as an apostate, the Tribunal’s conclusion was that the appellant simply had not done anything in Iran likely to bring him to the attention of the authorities, and he would continue not to do so. The Federal Circuit Court was conscious, correctly, that the appellant’s claim to be an agnostic, and his claim to membership of a social group identified as apostates, were interrelated in the way his claims had been expressed, but did need to be dealt with separately.

61        It is common at a practical level for there to be a connection between a person holding a religious belief (again, assuming for the moment agnosticism can be so described) and a person being categorised and treated as an apostate in a particular country. As cases in this Court demonstrate, a frequent factual situation arising in refugee decision-making concerns people who have converted to Christianity from Islam in some Muslim countries. For the purposes of the exercise required under Art 1A of the Convention, as implemented in s 36 of the Migration Act, however, there is no necessary connection between these two claims.

62        The appellant’s claims illustrate this proposition. If, as he claimed, the appellant had renounced Islam without a contemporaneous choice to follow another religion, it is that renouncement of Islam which could lead to him being identified as an apostate, as the research paper before the Tribunal and in evidence before the Court reveals.

63        The state of being agnostic is a matter of self-identification, as is a person’s religious or political belief. It is how a person perceives himself or herself — and, as we have said, it may be a necessary part of the Tribunal’s function in a given case to decide whether it accepts that self-identification is genuine. We have found, in relation to the first ground of appeal, that was the process the Tribunal undertook in relation to the appellant’s agnosticism.

64        Much of the evidence relied on by the appellant about his rejection of Islam, however, was factually separate from his agnosticism claim. His accounts, for example, of how he became disenchanted with Islam as a high school student, his lack of interest in studying about Islam, his “un-Islamic” behaviour at University and his asserted manifestation of his opposition to Islam when he was in the military. In none of these accounts did the appellant refer to his agnosticism, and it appears he was not claiming at those stages of his life to have self-identified as an agnostic. His account of having joined a group with his friend to discuss their opposition to Islam, again, on his own account of it, was separate from and appears to have predated his agnosticism.

65        The decision whether to accept these accounts given by the appellant as factually reliable did not depend on whether the Tribunal believed the appellant was an agnostic.

66        The Tribunal considered and determined the appellant’s claims at this factual level. In that part of its reasons headed “Findings and Reasons”, it correctly set out all the bases for the appellant’s claims for protection, including being a member of a social group “apostates”, a claim to fear harm for reasons of religion relating to his rejection of Islam, and for reasons of his “un-Islamic views”, all three of which could one way or the other reasonably be described as involving a claim that the Iranian regime and authorities will perceive him to be an apostate. At [92] of its reasons it expressed its general conclusion that:

The Tribunal accepts that the applicant was involved in the sport of powerlifting in Iran and that in one competition he was demoted from second to fifth place. It accepts his claim that he had difficulty making a living in Iran. It accepts his claim that he does not support the current government of Iran. However, it is not satisfied that the applicant provided a credible account of his circumstances in Iran and it has formed the view that he contrived most of his major claims to obtain a protection visa.

67        It then dealt with the claims in detail and sequentially, in five relevant ways. First, as we have recounted at [25]-[26] above, the Tribunal found the appellant’s claims relating to religion and to his membership of the anti-Islamic group said to have been organised by his friend to be fabricated and contrived for the purposes of his protection visa application. These passages can and should be read as forming part of the Tribunal’s findings on the appellant’s claim he will be perceived in Iran as an apostate.

68        It is true that in these passages where it describes “all his claims relating to religion” as contrived, the Tribunal dealt with both the claim to be an agnostic and the claim the appellant will be perceived in Iran as an apostate. That is explicable because of the link made by the appellant himself, and by his migration agent in submissions. At [94] of its reasons, amongst other things, the Tribunal rejected the appellant’s account that he had “expressed views relating to religion in Iran”, which can only be a reference to the appellant’s renouncement of Islam claim.

69        Second, the Tribunal then makes firm findings against the appellant in relation to his account of becoming involved with his friend’s anti-Islamic group. Here, the Tribunal relies on the fact the appellant did not mention this group, or the incident he subsequently claimed caused him to flee, in his arrival interview. The Tribunal’s reliance on this omission, as the basis on which not only to disbelieve the appellant but positively to find he has contrived and fabricated his account, caused the Court some concern during oral submissions on the appeal and in part led to the grant of an opportunity to the appellant to supplement his grounds of appeal. That opportunity was not taken up. We make some observations below at [80] about whether the Tribunal wrongly characterised what the appellant said at the entry interview, not as a basis for determining the appeal but rather to explain why ultimately we do consider the Tribunal’s finding of fabrication was open to it.

70        Third, having dealt with the appellant’s claims based on religion (or rejection of it) and on his participation in his friend’s anti-Islamic group, the Tribunal then separately considered the other aspects of the appellant’s factual account which were said by him to establish that he held and expressed anti-Islamic views while in Iran. Again, the Tribunal relies on the absence of these accounts from the appellant’s entry interview. The Tribunal expressly stated it listened to the tape of the entry interview and was satisfied the appellant had sufficient time and opportunity to raise these matters, contrary to his contention that he did not. On that basis, the Tribunal saw the omission to mention these factual accounts as bearing on the credibility of the appellant. As we have noted, no evidence was adduced before this Court, however, to contradict the Tribunal’s description. Certainly in the written record of the entry interview there is no mention of the anti-Islamic activities of the appellant in the military, at his school and university.

71        Fourth, it is important also to recall that the Tribunal did not accept the appellant’s account of the circumstances in which he fled Iran. It did not accept he had to flee the next day after a Basij raid on a meeting of his friend’s anti-Islamic group. Rather, it found there was evidence he had been planning his departure for two years, as he described in his arrival interview. As we have explained at [69] above, his entry interview contained a number of matters inconsistent with the appellant’s claim to have fled with less than 24 hours’ notice.

72        Fifth, and finally, it did not accept his account of having been in trouble with the authorities in Iran, again pointing to inconsistencies between the entry interview and what the appellant told the delegate. The Tribunal did not accept the appellant’s explanation that he could not recall some incidents, finding that, if he had been detained for up to five days (as one of his accounts described), he would be able to recall what happened to him.

73        The appellant’s presentation to the Tribunal as a person who has held anti-Islamic views for a long time, since high school, and acted on them, was not accepted at a factual level by the Tribunal, for a series of reasons relating to differing factual accounts given by the appellant. We consider that the five categories of finding we have set out above each involve a rejection of the appellant’s claim that on return to Iran he would be identified as an apostate and treated accordingly. In making these findings there was considerable, but not singular, reliance by the Tribunal on the appellant’s failure to mention factual matters at his entry interview. When the Tribunal’s findings and reasons are read as a whole it is clear the Tribunal dealt with the apostasy claim. The second ground of appeal should be rejected.

A factual error by the Tribunal?

74        The appellant’s account of how he joined his friend’s anti-Islamic group, and how a raid by the Basij on this group was the catalyst for his flight from Iran, were important components of his claim for protection. At [95] of its reasons, the Tribunal rejected his account of joining and attending a meeting of his friend’s group to express views against Islam and against the Iranian government. The main reason for the rejection, as articulated in that paragraph of the reasons, was that he “neglected to mention it at his arrival interview”, an omission which in the Tribunal’s view was significant, since the appellant also claimed it was the main reason he fled Iran. The Tribunal did also refer to “the inconsistent way in which the claim was presented”, which we understand to be a reference to accounts the appellant had given to the delegate and to the Tribunal at the review hearing. During the hearing of the appeal, questions arose whether the evidence disclosed the appellant had in fact mentioned his participation in this group at the entry interview.

75        In the written summary of the entry interview, the officer has recorded the appellant as saying (under the heading “Religious Beliefs”) “we looked on the internet, with friends we got together and discussed issues and came to the conclusion that everything was a big lie, the Imans [sic] do anything they like”. It is equivocal whether this is a reference to participation by the appellant in his friend’s group.

76        In the submissions made to the Tribunal on behalf of the appellant, in response to the Tribunal’s notice under s 424A of the Migration Act, the appellant’s migration agent referred the Tribunal to two extracts from the transcript of the entry interview. One was similar to the written summary. That extract was:

Due to all these things of our observation, we became interested in the discussions to do with religious beliefs about the information we used to get on satellite. We used to get together with friends, such as [the appellant here named his childhood friend who came to Australia by boat with him, not the friend who he later claimed organised the anti-Islamic group meetings], and talk about issues and we come to the conclusion that everything was a big lie, that was our own conclusion.

77        The summary and this first extract are in substance reproduced in the Tribunal’s reasons at [72], in its own summary of the recording of the entry interview. The Tribunal did not ignore these statements by the appellant: rather, by its reasons it did not see them as connected to his account of his friend’s anti-Islamic group.

78        A further extract from the entry interview was identified to the Tribunal in the same submission from the appellant’s migration agent:

So we started to do our own investigation about different religious beliefs and we came to conclusion that most of the things they tell us are made up to rip people off, basically. The country which the news is false, religious is false, nothing is true, is not a place to stay. Everything is done by force, you have to say prayer by force, fasting is by force, you have to work by force.

79        On any view, this account bears little resemblance to the way the appellant subsequently described his involvement with the particular anti-Islamic group which was raided by the Basij, causing him to flee Iran within 24 hours.

80        Reading the Tribunal’s reasons as a whole, and taking account of the material before it and before the Court, we consider the Tribunal could reasonably conclude that these statements were not accounts of the appellant’s joining and participation in the specific anti-Islamic group that he subsequently described in some detail, in particular by describing the Basij raid which caused him to flee Iran. It was open to the Tribunal to decide that the appellant had therefore neglected to mention these important matters at his entry interview, and to use that as a basis to conclude those accounts were fabricated.

CONCLUSION

81        Each of the appellant’s three grounds of appeal should be rejected, and the appeal should be dismissed. We consider there is no basis to depart from the usual order as to costs.

Associate:

Dated:    4 July 2014