Federal Court of Australia

EPJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 193

ORDERS

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:

1    The appellant appeals against the judgment of the Federal Circuit Court of Australia in EPJ19 v Minister for Immigration [2020] FCCA 2197.

2    The primary judge dismissed the appellant’s application for judicial review of a decision made by the second respondent (the Authority) affirming a decision of a delegate of the first respondent (the Minister) to refuse the grant of a Temporary Protection Visa.

3    The appellant had claimed that if he were returned to Iran, he would be persecuted on the basis that he had renounced Islam and converted to Christianity.

4    The appellant relies on two grounds of appeal which assert, in summary:

(a)    The Authority failed to consider whether, for the purposes of s 5J(3)(c)(i) of the Migration Act 1958 (Cth) (the Act), the appellant would be required to modify his behaviour upon his return to Iran by concealing his true religious beliefs.

(b)    In determining whether the appellant had a well-founded fear of persecution for the reason of religion under sections 5J(1)(a) and (b) of the Act, the Authority erred by applying its own proxy test of whether the appellant was a “genuine” adherent to Christianity.

5    In order to place the parties’ submissions in context, it is necessary to begin by describing the factual background, the relevant legislative provisions, the Authority’s decision and the judgment of the primary judge.

Factual background

6    The appellant is a citizen of Iran. He entered Australia on 6 March 2013 as an unauthorised maritime arrival.

7    On about 21 June 2016, the appellant applied for a Temporary Protection Visa, having been granted permission to do so by the Minister. On 28 June 2019, the Minister’s delegate refused the application.

8    The refusal decision was referred to the Authority on 5 July 2019, and the Authority affirmed the decision on 2 August 2019.

9    The appellant sought to commence judicial review proceedings in the Federal Circuit Court outside the prescribed statutory time limit. The appellant was granted an extension of time by the primary judge on 25 February 2020. The primary judge dismissed the appellant’s application for judicial review on 26 August 2020.

10    The appellant filed his notice of appeal in this Court on 22 September 2020, and the Chief Justice determined that the appeal should be heard by a Full Court.

The legislation

11    The grounds of appeal turn upon the Authority’s interpretation and application of s 5J of the Act, which deals with the meaning of the phrase, “well-founded fear of persecution”.

12    Section 35A(3) of the Act provides that there is a class of temporary visas known as temporary protection visas. Section 35A(6) states that the criteria for a class of protection visas are set out in s 36.

13    Section 36(2)(a) provides, relevantly, that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

14    Section 5H(1) defines the term “refugee”, providing relevantly:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

…

15    Section 5J defines the phrase, “well-founded fear of persecution”, relevantly, as follows:

5J    Meaning of well–founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well–founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

…

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

16    It may be seen that s 5J requires that for a person to have a “well-founded fear of persecution”, the person must fear being persecuted for a specified reason, and there must be a real chance that the person would be persecuted for that reason. Subsection (3) carves out an exception where a person could take reasonable steps to modify their behaviour, unless, relevantly, the modification would require the person to conceal their true religious beliefs.

The Authority’s decision

17    The Authority observed at [9] of its decision record that the appellant’s core claims were that he was forced to follow Islam and was unable to freely choose his religion of Christianity. He also claimed to fear that he would again be tortured by his father who had forced him to practice Islam, that he had escaped the Iranian police and ignored an order to appear in court, and that he feared being killed by his Kurdish girlfriend’s relatives in an honour killing.

18    The Authority recorded at [14]-[15] that the appellant stated his main reason for leaving Iran was that he had been caught by police with his girlfriend in a park. They had been reading a Bible, which the appellant’s girlfriend had in her possession when they were caught. The appellant claimed that he had run away from the police, but was required to appear before a court. He then decided to leave Iran. The Authority found at [22] that the appellant had contrived the circumstances of this incident.

19    The Authority also found at [25] that the appellant had contrived his claim that his girlfriend was Kurdish.

20    The appellant claimed to have been subjected to frequent harassment, including beatings, by Iranian police for alleged “religious crimes”, including drinking alcohol and being caught with a girl. The Authority at [26] rejected this claim.

21    The appellant claimed to have been abused by his father and forced to practice Islam, and to fear such treatment in the future. While the Authority accepted at [28] that the appellant had a difficult relationship with his father which had at times resulted in physical harm, it found that the appellant had exaggerated the “religious zeal” of his father.

22    The Authority noted at [29] and [30] that at his protection visa interview and in his protection visa application, the appellant had stated he was a Christian. The appellant articulated his fears in terms of being deprived of the religious freedom to practice Christianity, as Sharia law did not allow conversion from Islam to another religion.

23    The Authority found at [21] that it was not satisfied the appellant had consciously converted to Christianity. The Authority considered the appellant’s engagement with Christianity at [29]-[40], noting the appellant’s claims that he “felt [Christianity] in his heart”, that he had been to Bible studies and attended a church in Sydney, that he was baptised, that he had attended church in Brisbane, and that sometimes he would help out at charity functions serving food and cleaning. The Authority observed at [35] that the appellant had not provided any evidence of his participation at Bible studies or his baptism, or his attendance at church.

24    The Authority accepted at [35] that the appellant had attended churches in Australia, but that his attendance had been intermittent, demonstrated by his inability to recall the pastor’s name and the church he claimed to regularly attend. The Authority considered the appellant’s interest in Christianity to be “somewhat contrived”. The Authority was willing to accept that the appellant had undergone a Christian baptism and that he had attended Bible study classes.

25    The Authority accepted at [35] that the appellant was attracted to Christianity because of its kindness and because it brings him a sense of calm. The Authority also accepted that there had been an element of social engagement for the appellant in attending church and being baptised. The Authority found that the appellant’s involvement with Christianity in Australia was not solely for the purpose of strengthening his claims for protection.

26    However, the Authority found at [35] that it was not satisfied that the appellant had genuinely committed to the Christian faith, or that he truly identified as a Christian. The Authority was not satisfied that on his return to Iran, the appellant would seek out a Christian church in order to worship or practice Christianity, or that he had a genuine long term interest in pursuing Christianity, or that he would proselytise. The Authority rejected the appellant’s assertion that he did not promote his Christianity on social media because he was scared, and instead found that he was not inclined to promote his Christianity because he lacked a genuine enthusiasm or interest in doing so.

27    The Authority then turned to the appellant’s claim to fear persecution in Iran on the basis that he no longer follows or practices Islam. The Authority observed at [36]:

Whilst I have rejected the applicant’s claim that he is a Christian or that he has genuinely converted to Christianity, I accept the applicant although born a Muslim no longer follows or practices Islam.

28    The Authority had noted earlier at [5] that the appellant had claimed that:

He believes Islam is a religion of violence and terror and that no one can live at peace under Islamic laws. He was considered a Muslim in Iran as he was born to a Muslim father but he never wished to follow Muslim ideology. Islamic law should not be forcefully imposed on Iranian citizens and religious freedom should be available to all Iranians.

29    The Authority recognised at [36] and [40] that the appellant’s “disengagement” with Islam may constitute a basis for a fear of persecution separate to his claimed conversion to Christianity. The Authority noted at [37] that, under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy or blasphemy, and that death sentences, although rare, may be carried out. However, the Authority found at [39] that it was not satisfied that the appellant would be forced to practice Islam in Iran. The Authority considered at [38]-[39] that it was, “unlikely that it would become known that a person was no longer faithful to Shia Islam”, and that, “[p]erceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith…”. These assessments were expressed to be on the basis of country information indicating the unlikelihood of the Iranian government monitoring religious observance by Iranians, in addition to a general level of tolerance among the Iranian population for digressing religious beliefs.

30    The Authority noted at [38] that, “the applicant has not claimed to have spoken out critically of Islam whilst in Iran” and found that it was not satisfied that he would do so upon his return to Iran. The Authority made findings at [35] that it was not satisfied that the appellant would proselytise.

31    The Authority at [40] concluded that:

Although I have accepted that the applicant no longer follows Islam, I am not satisfied on the evidence before me that the applicant will genuinely seek to publicise his anti-Islamic views, or has any desire to do so, on his return to Iran, or that he faces a real chance of any harm for no longer practising or believing in Islam. I am not satisfied he faces a real chance of harm arising for reason of religion.

32    The Authority concluded at [50] that the appellant did not meet the requirements of the definition of refugee in s 5H(1) and did not meet s 36(2)(a). The Authority also concluded at [55] that the appellant did not meet the requirements of the complementary protection criterion in s 36(2)(aa).

The judgment of the primary judge

33    Before the primary judge, the appellant relied upon three grounds of review.

34    The appellant’s first ground was that the Authority failed to consider a mandatory relevant consideration by failing to consider the reasons why the appellant, if returned to Iran, would not publicise his anti-Islamic views, in particular his view that, “Islam is a religion of violence and terror”. The primary judge rejected this ground, holding at [57]-[60]:

57.     … Contrary to the applicant’s submission, he did not claim or provide any evidence that while in Iran he had refrained from expressing his views of Islam.

58.     The applicant seeks to draw an inference from his temporary protection visa application and country information relied upon by the Authority that, because he considered Islam to be a religion of violence and terror and blasphemy is a crime in Iran, he “restrained himself” or was “silent” about his views of Islam before departing Iran.

59.     Such an inference is unavailable because of the country information before the Authority. At [39] of its reasons, the Authority expressly referred to country information before it that there was a great diversity of attitudes and treatments of persons who held non-mainstream religious views and many in Iran held secular attitudes and were ashamed or embarrassed of religious discrimination and persecution. It also does not squarely or clearly arise from the applicant’s claim that he considered Islam was a “religion of violence and terror” that the applicant wanted to publicise his views, but could not do so.

60.     On the material and evidence before the Authority, it was open to the Authority to find that, the applicant would not, nor have any desire to, publicise his anti-Islamic views. As the Authority did not find that the applicant could take reasonable steps to avoid harm by modifying his behaviour, contrary to the applicant’s submissions, s.5J(3)(c) of the Migration Act had no application.

(Citations omitted.)

35    The appellant’s second ground of review was that the Authority fell into jurisdictional error by asking itself the wrong question when determining whether the appellant had a well-founded fear of persecution for the reason of religion. The appellant’s particularised argument was that the Authority, having made findings that the appellant was, “genuinely attracted to Christianity, its kindness and that it brings him a sense of calm”, and that the appellant had, “manifested genuine social engagement in Christianity in Australia”, erred by acting as an arbiter of religion and asked itself the wrong question by looking to additional qualifying conduct necessary to establish a genuine commitment to the Christian faith. This argument rested on the assertion that, “for the purposes of the Migration Act, a person’s engagement with religion is binary – either they genuinely engage or they do not”. The primary judge rejected this ground, observing at [69]:

69.     Contrary to the applicant’s contention, the Authority did not require the applicant to demonstrate a particular level of engagement with the Christian faith but, rather, assessed whether the applicant’s claim that he had converted to Christianity was genuine and whether the applicant would face persecution for the purpose of the Migration Act for that conversion or his attendance at church events in Australia. Those findings of the Authority were open to it to make on the material and evidence before it and for the reasons it gave.

(Citations omitted.)

36    The appellant’s third ground of review was that the Authority fell into jurisdictional error by failing to give proper, genuine and realistic consideration to the appellant’s claims, in particular the claim made by the appellant in his arrival interview that the appellant’s father was a member of the Basij. The primary judge rejected this argument, and the appellant has not pursued it in the appeal.

37    The primary judge dismissed the appellant’s application for judicial review.

The parties’ submissions

38    In the appeal, the appellant relies upon the first and second of the grounds that were argued below.

39    As to the first ground, the appellant submits that the Authority erred by failing to consider whether the appellant would be required to modify his behaviour to the extent that it would conceal his true religious beliefs. That matter is asserted to be a mandatory relevant consideration under s 5J(3)(c)(i) of the Act.

40    The appellant submits that it would constitute a prohibited behaviour modification if the appellant were prevented from behaving in a manner consistent with his conscientious objection to Islam, relying upon the reasoning in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. The appellant submits that his religious beliefs are not merely secular, but anti-Islamic in nature, and that the Authority’s consideration of country information speaking to increasingly secular attitudes in Iran failed to properly address his claims. The appellant observes that the Authority considered whether the appellant would be required to, “alter his…religious beliefs, including by renouncing a religious conversion, or conceal his…true religious beliefs, or cease to be involved in the practice of his…faith”, and found that the appellant would not seek to publicise his anti-Islamic views upon his return to Iran, nor would he have a desire to do so. The appellant submits that the Authority, having made findings at [38] and [40] that it was not satisfied that the appellant would speak out critically of Islam upon his return to Iran, was bound to consider the reasons why the appellant would conceal his anti-Islamic views to determine whether the appellant’s desire to remain discreet was motivated by a fear of persecution.

41    The Minister makes four submissions upon the appellant’s first ground, summarised as follows:

    The appellant made no claim that he had modified his behaviour in the past, or that he would have to modify it in the future, nor did he claim expressly or inferentially that a fear of persecution would affect the manner in which he expressed his views on religion.

    The Authority’s finding that the appellant had no desire to express his views on Islam constituted, “a rejection of the underlying premise that the appellant would, due to a fear of persecution, modify his behaviour by concealing his beliefs”.

    In applying the statutory criteria in s 5J(3) of the Act, the Authority’s focus was appropriately on what the appellant would do upon his return to Iran, not what he could do.

    The Authority did not adopt a binary assumption as to whether or not the appellant would seek to publicise his anti-Islamic views, but rather considered the appellant’s circumstances as a conscientious objector to Islam in the context of relevant country information.

42    As to the second ground of appeal, the appellant submits that the Authority erred by substituting its own proxy test of whether the appellant was a “genuine Christian” when determining whether the appellant had a well-founded fear of persecution for the reason of “religion” for the purposes of s 5J(1)(a) of the Act.

43    One of the appellant’s claims for protection before the Authority was expressly framed in terms of a fear of persecution on the basis of his religious conversion to Christianity. In the course of oral submissions, the appellant accepted the Authority found that the appellant’s engagement with Christianity fell short of a doctrinal adherence. However, the appellant observes that the Authority nevertheless accepted that he had genuinely engaged in Christian “faith practices” in Australia, such as baptism and attendance at church and Bible studies. The appellant submits that the Authority should have considered whether the appellant engaging in such practices in Iran would give rise to a well-founded fear of persecution. The appellant submits that the Authority incorrectly assumed that the appellant would only seek to continue his faith practices if he were a doctrinal adherent to the Christian faith. The appellant argues that by confining its inquiry to whether or not the appellant was doctrinally Christian, the Authority failed to properly consider his claims.

44    The appellant impugns two key findings made by the Authority at [35]: that it was not satisfied that the appellant “has genuinely committed” to the Christian faith; or that the appellant “truly identifies” as Christian. The appellant argues that these findings directly formed the basis of the Authority’s adverse conclusions that the appellant would not seek out a Christian church in Iran, did not have a genuine long term interest in pursuing Christianity, and would not proselytise. That is, the appellant submits that the conjunction “therefore” is a necessary implication when reading the Authority’s reasons at [35]:

...On the evidence before me, I am not satisfied however that he has genuinely committed to the Christian faith or that he truly identifies as a Christian. [Therefore] I am not satisfied that on his return to Iran he would seek out a Christian church in order to worship or practise Christianity or that he has a genuine long term interest in pursuing Christianity or that he would proselytise…

45    The Minister submits that the Authority did not substitute its own proxy test for the statutory threshold of “religion” under s 5J(1)(a), but appropriately took into account the appellant’s level of involvement and identification with Christianity as a matter relevant to the interpretation and application of the statutory criteria. The Minister submits that the Authority’s approach is necessarily informed by the way in which the appellant put his claims, and highlights that the appellant did not put his claims in terms of taking a nuanced approach to Christian “faith practices”, without being a formal member of the religion in a doctrinal sense. The Minister submits that the Authority’s reasoning in [35] directly confronts the appellant’s claims in the way they were put.

46    The Minister accepts that the meaning of “religion” under s 5J(1)(a) should not be narrowly confined, and that there can be different manifestations of religious conduct, beliefs and faith which are broader than doctrinal adherence. The Minister submits, however, that the Authority did not take an artificially narrow approach to the meaning of “religion”.

47    The Minister submits that the Authority’s finding about the appellant’s likely future behaviour in Iran focusses not just on official membership of a religion, but also upon his likely future religious conduct. The Minister submits that the Authority clearly considered matters of the appellant’s worship and practice of Christianity, and that the Authority’s evaluative characterisation that the appellant was not genuinely committed to the Christian faith was not being used by the Authority as a statutory proxy, but rather as a tool for assessing upon earlier factual findings what the appellant was likely to do upon return to Iran.

Consideration

Ground 1: Did the Authority err by failing to consider why the appellant would conceal his anti-Islamic views in Iran?

48    The appellant’s first ground of appeal asserts that the Authority erred by failing to consider why the appellant would conceal his anti-Islamic views if he were returned to Iran and determine whether the appellant’s desire to be discreet about those views was motivated by a fear of persecution, relying upon Appellant S395/2002. That submission makes it necessary to identify the claims made by the appellant and to examine the way the Authority dealt with those claims.

49    The Authority recognised at [36] that the appellant had raised a claim to fear persecution for the reason that he no longer followed or practiced Islam. The Authority had earlier acknowledged at [5] that the appellant, “believes Islam is a religion of violence and terror and…Islamic law should not be forcefully imposed on Iranian citizens”.

50    While the Authority accepted at [36] that the appellant no longer followed or practiced Islam, it found that, “disengagement with Islam is not uncommon in Iran”. The Authority accepted at [37] that under Iranian law, a Muslim who leaves the faith can be charged with apostasy. However, the Authority referred at [38] to country information indicating that it is highly unlikely that the Iranian government would monitor religious observance by Iranians. The Authority went on to find at [38] that:

…Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants. I have not accepted the applicant has genuinely converted to Christianity nor am I satisfied that he has any intention to do so in the future. I note the applicant has not claimed to have spoken out critically of Islam whilst in Iran and I am not satisfied he would do so on his return.

51    The Authority found at [39] that it was not satisfied that the appellant would be forced to practice Islam. The Authority concluded at [40]:

Although I have accepted the applicant no longer follows Islam, I am not satisfied on the evidence before me that the applicant will genuinely seek to publicise his anti-Islamic views, or has any desire to do so, on his return to Iran, or that he faces a real chance of any harm for no longer practising or believing in Islam. I am not satisfied he faces a real chance of harm arising for reason of religion.

52    In these passages, the Authority considered the appellant’s claims that he was at risk of persecution because he no longer followed or practiced Islam and because of his anti-Islamic views. These were closely related and overlapping claims. The Authority was satisfied that the appellant was unlikely to come to the attention of the Iranian authorities on either basis unless he sought to, “publicise his anti-Islamic views”. The Authority was satisfied that the appellant would not seek to publicise his views, noting at [35] that the appellant had not claimed to have done so when he was in Iran.

53    The appellant contends that the Authority made two related errors. First, he argues that the Authority mischaracterised his claims as confined to a fear of persecution as a person who no longer followed Islam, whereas he had also claimed to fear persecution because of his anti-Islamic religious beliefs. Second, he argues that the Authority failed to ask why, in the context of that claimed fear, he would not speak out critically of Islam – he would satisfy s 5J of the Act if fear of persecution would prevent him from expressing his anti-Islamic views.

54    The first of these asserted errors can immediately be rejected. It is apparent from [5], [38] and [40] that the Authority understood that the appellant claimed to fear persecution on the basis that he held anti-Islamic views, and considered that claim.

55    The second of the asserted errors requires consideration of the principles stated in Appellant S395/2002 and their application to s 5J of the Act. In DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 388 ALR 363, the High Court gave the following explanation:

3    This Court held in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs that, in assessing the refugee criterion in s 36(2)(a), an asylum seeker cannot be expected to hide or change behaviour that is the manifestation of a protected characteristic under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees (“the Convention”) in order to avoid persecution. Appellant S395 preceded both the insertion of s 36(2)(aa) and subsequent amendments to s 36(2)(a).

…

6    In Appellant S395, this Court was concerned with a claim for protection based on a person’s refugee status under what became s 36(2)(a) of the Migration Act. Central to the reasoning in Appellant S395 was the definition of “refugee” in Art 1A(2) of the Convention. The definition contains four cumulative elements: “(1) the person concerned must fear ‘persecution’ in the country of his or her nationality; (2) the persecution so feared must be ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’; (3)that fear of persecution for one or more of those Convention reasons must be ‘well-founded’; and (4) the person must be outside the country of his or her nationality ‘owing to’ that well-founded fear”.

7    It is sufficient for present purposes to focus on the second and third elements of the definition. Both elements reflect that the purpose of the Convention is to “protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution”. The third element of the definition, which is objective, “requires the decision-maker to decide what may happen if the applicant returns to the country of nationality”. That element requires consideration of the situation of a particular applicant and “identification of the relevant Convention reasons that the applicant has for fearing persecution”.

8    The Refugee Review Tribunal (“the Tribunal”) in Appellant S395 had accepted that it was not possible for the protection visa applicants in that case to live openly as homosexuals in Bangladesh, but found that they had previously conducted themselves “discreetly” in Bangladesh, and there was no reason to suppose that they would not continue to do so if they returned to that country. The Tribunal concluded that the applicants were not entitled to protection visas. The Tribunal’s reasoning was held to be fallacious. The principle for which Appellant S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution”. The principle “directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic” (emphasis added).

9    The rationale for the principle is that a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that ”the very protection that the Convention is intended to secure” for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country.

10    Section 36(2)(a) was amended in 2014. At the same time, ss 5H and 5J were inserted: s 5H provides a definition of “refugee” and s 5J provides a definition of “well-founded fear of persecution”, largely codifying the definition of ”refugee” under the Convention. The question that s 36(2)(a) asks is whether a person is owed protection obligations because they are a refugee. The statutory definition of “refugee” in s 5H directs attention to whether a person is unable or unwilling to avail himself or herself of the protection of his or her country of nationality, or unable or unwilling to return to the country of his or her former habitual residence, owing to a well-founded fear of persecution for one of the reasons set out in s 5J(1) (which in turn correspond to the five grounds for refugee status listed in Art 1A(2) of the Convention: race, religion, nationality, membership of a particular social group or political opinion). A fear of persecution will be “well-founded” if there is a “real chance” that the person will suffer the feared persecution if returned. A “real chance” is a prospect that is not “remote” or “far-fetched”: it does not require a likelihood of persecution on the balance of probabilities. Section 5J(3) provides exceptions to what constitutes a well-founded fear of persecution. It provides that a person does not have a well-founded fear of persecution “if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country”, unless the modification, among other things, relates to fundamental, innate or immutable characteristics. The qualification has the effect that s 5J(3) is not inconsistent with the principle in Appellant S395.

(Citations omitted.)

56    In this case, the Authority accepted that if the appellant publicised his anti-Islamic views in Iran, he would face a real risk of persecution for apostasy or blasphemy. The Authority found, however, that the appellant would not publicise his anti-Islamic views because he did not have “any desire to do so”.

57    It can be accepted that if the Authority had made a finding that the appellant would conceal his anti-Islamic views in order to avoid persecution in Iran, it is likely that the Authority would have gone on to find that the exception in s 5J(3) did not apply, and that the appellant had a well-founded fear of persecution within s 5J(1). The appellant submits that the Authority was required, but failed, to ask why the appellant would not publicise his anti-Islamic views in Iran. However, that submission contains two premises that are not established.

58    First, the submission assumes that the appellant had made, or that the material clearly raised, a claim to the effect that the appellant would be forced to modify his behaviour by concealing his anti-Islamic views if he were returned to Iran. The Authority is only required to deal with claims which are expressly articulated, or which clearly arise from the materials before it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [79]; ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 at [68]-[71]. In Appellant S395/2002, Gleeson CJ observed at [1]:

…[T]his Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

59    As the primary judge held, the appellant had made no claim to the effect that he had modified his behaviour in the past, or would modify it in the future, by concealing his anti-Islamic views. The appellant had not made any express claim that he had wished to express his anti-Islamic views in Iran but had refrained from doing so because of his fear of persecution. Neither did he claim to have expressed such views in Australia, but that he would be constrained from continuing to express such views if he were returned to Iran. Nor did any such claims clearly arise from the material. The Authority was not required to consider whether the appellant would refrain from publicising his anti-Islamic views in Iran in order to avoid persecution in circumstances where no claim to that effect had been made or raised.

60    Second, the appellant’s submission proceeds upon a premise that the Authority failed to ask why the appellant would not publicise his anti-Islamic views in Iran. However, the Authority expressly found that the appellant would not express such views because had no desire to do so. In the absence of any claim by the appellant that he did desire to express anti-Islamic views in Iran, and the absence of any evidence that the appellant had expressed such views while in Australia, it was open to the Authority to draw that inference. The Authority appropriately focussed upon what the appellant would do upon return to Iran and the reasons why: see Appellant S395/2002 at [83]. Accordingly, the appellant’s submission that the Authority erred by failing to ask why the appellant would not publicise his anti-Islamic views cannot be accepted.

61    The appellant’s first ground of appeal must be rejected.

Ground 2: Did the Authority err by applying its own proxy test of whether the appellant was a genuine adherent to Christianity?

62    In the appellant’s arrival interview, he nominated his religion as “Christian”. He stated that he feared harm because, “I believe [in] Christianity”. In the appellant’s application for a protection visa, he recorded his religion as “Christian”, and he claimed to have been “deprived of my basic human right of practicing my preferred religion”. In a subsequent interview with a Departmental officer, the appellant explained that he had become friendly with some Armenian Christians in Iran and through them he was able to see the differences between Islam and Christianity, and “found Christianity to be good”. The appellant stated that he had “changed his religion in Iran”.

63    It may be seen that the appellant’s case was presented squarely upon the basis that he feared that he would be persecuted in Iran because he had converted to Christianity and was a practicing Christian. The Authority at [36] expressly rejected the appellant’s claim that he had genuinely converted to Christianity and was a Christian. The Authority, accordingly, must be understood to not have been satisfied, for the purposes of s 5J(1)(a) of the Act, of the appellant’s claim to subjectively fear persecution as a convert to Christianity and as a practicing Christian. The Authority must also be understood to not have been satisfied, for the purposes of s 5J(1)(b), that there was a real chance that the appellant would be persecuted for such reasons.

64    Although the appellant’s claim was made solely on the basis that he was genuinely a Christian, the appellant submits that the Authority erred in rejecting the appellant’s claim to be entitled to a protection visa by confining its inquiry to whether the appellant is a genuine adherent of the Christian faith. The appellant argues that the Authority ought to have considered whether the appellant would be at risk of persecution in Iran on the basis that he would engage in the “faith practices” of Christians. The appellant observes that the Authority made the following findings at [35]:

…I accept the applicant has attended a number of churches in Australia and most recently at a church located in North Rocks in Sydney. I find that his attendance at church has been intermittent and this is demonstrated by his inability to recall the pastor’s name and the church he claims to regularly attend. I have considered whether his depression may have impacted on his ability to recall these details but I am not so convinced and I consider the applicant’s interest in Christianity is somewhat contrived. I am willing to accept that he has also undergone a Christian baptism approximately two years ago and that he has attended bible study classes near Parramatta station. I accept that the applicant is attracted to Christianity, its kindness and that it brings him a sense of calm and that he may have taken friends to church and there has been an element of social engagement in attending church and being baptised and to that extent I do not consider his involvement with Christianity in Australia was solely for the purpose of strengthening his claims for protection. On the evidence before me, I am not satisfied however that he has genuinely committed to the Christian faith or that he truly identifies as a Christian…

65    The appellant submits that having found that the appellant had genuinely engaged in some Christian “faith practices” in Australia, such as church attendance and Bible studies, the Authority ought to have considered whether the appellant would wish to continue those practices in Iran, and whether he would be at risk of persecution for the reason of religion (even if he is not doctrinally a Christian).

66    It can be accepted that a person may engage in some religious practices of a particular faith without being a doctrinal adherent of that faith. For example, Christianity is based upon the teachings of Jesus Christ, and it seems improbable that a person who does not believe that Jesus Christ existed could be described as a Christian. Yet, a person without such belief may well, for social, familial, academic or other reasons, engage in some religious practices of Christianity, such as attending church services or engaging in Bible studies. A persecutor might nevertheless perceive the person to be a Christian, or perceive the person’s practices to be blasphemous, and may, accordingly, persecute the person for the reason of religion.

67    In the present case, the Authority was aware that its findings that the appellant had engaged in religious practices in Australia, such as attendance at church and Bible study classes, raised the possibility that the appellant might wish to continue those practices in Iran even though he was not a genuinely a Christian. The Authority addressed that issue, finding at [35]:

… I am not satisfied however that he has genuinely committed to the Christian faith or that he truly identifies as a Christian. I am not satisfied that on his return to Iran he would seek out a Christian church in order to worship or practise Christianity or that he has a genuine long term interest in pursuing Christianity or that he would proselytise. Whilst I note the applicant stated he was not active on social media about Christianity and he did not promote his Christianity because he was scared I am not convinced of this. I find that he is not inclined to promote his Christianity not because of any fear of persecution but that he lacks a genuine enthusiasm or interest in doing so…

(Underlining added.)

68    Although the Authority rejected the appellant’s claim that he had converted to Christianity and was genuinely a Christian, the Authority accepted that the appellant was “attracted to Christianity”, and that there had been an element of social engagement through attending church and being baptised in Australia. However, the Authority was not satisfied that the appellant would seek out a Christian church in order to worship or practice Christianity, finding that the appellant lacked a genuine long-term interest in doing so. The Authority raised and rejected the proposition that, upon return to Iran, the appellant would engage in public “faith practices” of the kinds he had engaged in while in Australia.

69    Accordingly, contrary to the appellant’s submission, the Authority did not confine its inquiry to whether the appellant had converted to Christianity and was a doctrinal Christian. Neither did the Authority make any assumption that as the appellant was not a doctrinal adherent to the Christian faith, he would not seek to continue his “faith practices” in Iran. Instead, the Authority considered whether the appellant would engage in such practices if he were returned to Iran, and found that it was not satisfied that he would do so.

70    The second ground of appeal must be rejected.

Conclusion

71    The appellant has not demonstrated any error on the part of the Authority or the primary judge. As both grounds of appeal have failed, the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal.

Associate:    

Dated:    10 November 2021