FEDERAL COURT OF AUSTRALIA

MZZFD v Minister for Immigration and Border Protection

[2014] FCA 569

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

1        The appellant is a citizen of Iran, of Persian ethnicity. The main issue in the appeal arises from the following chronology of the hearing afforded to the appellant concerning his claims to be a person to whom Australia has protection obligations.

CHRONOLOGY

    21 January 2011 – the appellant requested a Refugee Status Assessment (RSA).

    1 March 2011 – the RSA found that he was not a person to whom Australia owed protection obligations.

    18 April 2011 – the appellant sought an Independent Merits Review Assessment (MRA).

    28 September 2011 and 3 November 2011 – the Reviewer conducted interviews with the appellant.

    22 March 2012 – the MRA was finished and the Reviewer’s recommendations sent to the Department of Immigration and Citizenship (Department) (the First IMR Recommendation). The finding was that the appellant did not meet the criterion for a Protection Visa under s 36(2)(a) of the Migration Act 1958 (Cth) (Act) as it then stood.

    24 March 2012 – s 36(2)(aa) of the Act, concerning complementary protection, came into effect.

    16 April 2012 – the appellant’s lawyers sent to the Department further submissions, dated 5 April 2012 (the Submission), concerning the application of s 36(2)(aa). A copy was forwarded to the Reviewer and the lawyers so notified.

    19 April 2012 – the appellant was notified of the outcome of the First IMR Recommendation and provided with the Reviewer’s assessment and recommendation.

    The Reviewer, of his own motion, re-opened the matter and prepared a revised MRA, taking into consideration the application of s 36(2)(aa).

    14 June 2012 – the appellant’s lawyers sent a letter seeking to correct an error in the Submission (the Letter) which was forwarded to the Reviewer.

    20 June 2012 – the Reviewer recommended that the appellant not be recognised as a person to whom Australia has protection obligations (the Second IMR Recommendation).

2        The reasons in the Second IMR Recommendation were the same as the First IMR Recommendation, with the addition of reasoning concerning complementary protection. In each recommendation the Reviewer referred to:

    an entry interview conducted with the appellant on 26 November 2010;

    an interview with the appellant’s half-brother on 26 November 2010;

    a written statement by the appellant dated 21 January 2011;

    an RSA interview with the appellant on 24 January 2011;

    a submission forwarded by the appellant’s agent, dated 27 September 2011;

    an interview conducted with the appellant by videoconference on 28 September 2011;

    an interview conducted with the appellant on 3 November 2011;

    the Submission;

    the Letter;

    country information from a number of sources, including the country information contained in the Submission.

3        The main basis for the appellant’s claims before the Reviewer concerned his interaction with the Basij in Iran. Other bases were his family’s profile and his claimed political engagements. The issue of the appellant’s religious beliefs was not raised with the Reviewer until the November 2011 interview.

4        The Reviewer considered these claims in some detail and his findings are not presently in issue.

Section 36(2)(aa)

5        Section 36(2)(aa) provides:

a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or…

6        As noted, this subsection came into effect on 24 March 2012.

Application for Judicial Review in the Federal Circuit Court

7        In the Federal Circuit Court, the grounds for judicial review were:

1.    The applicant was denied procedural fairness in the conduct of the reviewer’s assessment of complementary protection.

Particulars

(i)    The applicant was not offered a hearing on the issue of complementary protection; and/or

(j)    The applicant was not alerted to the live issues under review in the assessment of complementary protection; and/or

(k)    The recommendation of 20 June 2012 and the assessment of complementary protection relied heavily upon earlier findings of fact that were made and contained in the recommendation of 22 March 2012.

2.    The reviewer denied the applicant procedural fairness in its consideration of complementary protection and/or failed to consider an integer of the applicant’s claim namely whether he had become a Christian having regard to his claimed beliefs and his conduct in Australia.

Particulars

(a)    The applicant claimed to have converted to Christianity.

(b)    In the context of complementary protection, the reviewer failed to consider this claim.

8        As the Federal Circuit Court Judge observed at [9], the grounds related to the appellant’s claims under the complementary protection provisions, specifically in relation to religion.

9        Her Honour set out in some detail the appellant’s claims concerning religion, as advanced before the Reviewer. In summary, they were:

    His father was Zoroastrian and his brother Christian.

    He is sick of Islam, which is a belief different from his; he does not believe in Islam at all.

    He does not adhere to any single religion in Australia but he does attend Church and undertakes religious (Christian) study.

    He was concerned at being at risk of persecution if he returned to Iran as a failed asylum-seeker, as a person who had been in the West for some time and as a person who has, to the knowledge of the asylum seekers on Christmas Island, attended Church.

10        The Federal Circuit Court Judge set out the summary of the claims before the Reviewer concerning religion as set out in the Submission:

    He had been forced into Islamic religion and practices against his will.

    He follows the Zoroastrian faith, like his father.

    He has openly rejected Islam while in Australia, and is particularly concerned that this information will reach the Iranian authorities and increase his risk of persecution.

    Related to this, the claimant states that he wishes to follow Christianity, and will denounce Islam if he returns to Iran.

11        The Submission referred to an attachment, said to be a letter from a Minister of Religion at Curtin Immigration Detention Centre concerning the appellant’s contention that he attended Christian Sunday services and Bible study. The Letter clarified that there was no such letter.

12        Her Honour noted the observations by the Reviewer that the Submission updated and expanded the claims concerning religion:

The submission highlights the claimant’s attachment to Christianity, variously stating that ‘he wishes to follow Christianity’, that he ‘has become a Christian’, that he ‘will be a member’ of the persecuted Christian minority, and that he will be perceived ‘as a practising Christian’.

Related to these claims is a broad rejection of Islam – that he was forced to practice Islam in Iran, that he has openly rejected Islam since arriving in Australia, and that he will denounce it if he returns to Iran.

13        Her Honour summarised and cited the Reviewer’s findings as follows:

21.    The consideration by the reviewer of the applicant’s claims based on religion can be summarised as follows:

a)    The reviewer formed the view that the applicant presented his claims based on religion only as an afterthought and found that the claimant had lead a fairly secular lifestyle in Iran and was not satisfied that the applicant’s “fairly agnostic views” have in the past, or will in the future, cause him to challenge or protest against the views of religious Shia Muslims. Further as religion has not played a significant part in the applicant’s life, the reviewer did not accept the applicant had “rejected Islam or that he would be motivated to denounce it in the future”

b)    The reviewer was not satisfied the applicant’s lifestyle in the past caused authorities or anyone to take an adverse view of him and that there was a reasonable chance of this occurring in the future. Nor was the reviewer satisfied the applicant “faces a real chance of additional scrutiny of his religious views, or of serious harm, for any reasons related to the other family member’s religious views”

22.    With respect to the applicant’s claim for refugee protection under s.36(2)(a), the reviewer then dealt with the applicant’s claims as to Christianity as follows:

“130.    In relation to Christianity, the claimant has stated that he has become a Christian and wishes to follow the faith (although he does not claim to have actually converted) and that, in any event, he will be perceived in Iran as having converted because of his church attendance in Immigration detention.

131.    The claimant linked his conversion to Christianity with his rejection of Islam (which I do not accept as an accurate reflection of his connection with that religion), yet at the interview he also said that he believes in God but is non-religious. I have significant doubts about this claim. First, as noted above, the late presentation of this claim raises questions about its sincerity and purpose. Second, the claimant has given no real explanation or insight into his shift from a basically non-religious person into a religious (Christian) one. This would be a major step in a person’s life, and I am not satisfied on the available evidence that the claimant has become religious or, more specifically, Christian.”

23.    As to the applicant’s evidence regarding his attendance and involvement in Christian services and activities whilst on Christmas Island, and in Curtin IDC, the reviewer stated he was not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee and hence the reviewer disregarded this conduct, in accordance with s.91R(3) of the Act, in determining whether the applicant had a well-founded fear of persecution.

24.    The reviewer’s consideration and findings regarding the applicant’s claims under s.36(2)(a) were expressed thus:

“135.    I find on the available material – disregarding the conduct that falls within s.91R(3) of the Act – that the claimant is not a Christian, will not be perceived as such and has no interest or motivation to engage in any relevant conduct if he returns to Iran. I therefore find that he faces no real chance of persecution arising in connection with Christianity, or any other religion (such as any association with Shia Islam, Zoroastrianism or his non-religious disposition)” (CB p.217 [135]).

25.    Turning to the complementary protection provisions; s.36(2)(aa), the considerations and findings of the reviewer are as follows:

“145.    I rely on the above findings of fact when assessing whether the claimant meets the requirements for complementary protection. Additionally, I have taken into account his conduct in Australia, having accepted that he has attended Christian services on Christmas Island and at Curtin IDC, and that he may also have ‘contributed’ in some form during these services. The claimant claims that this conduct puts him at risk of harm because people returning to Iran have seen him talking about religion and attending church. He implied that he meant fellow detainees. There are no details of who the person or persons of concern are, their links with the claimant (if any), and whether they would have the resources and motivation to inform the Iranian authorities or anyone of the claimant’s activities in Immigration detention. This claim involves mere conjecture, and I do not consider that it provides substantial grounds for believing that there is a real risk of significant harm.

146.    Taking the claims and evidence as a whole, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Iran, there is a real risk that he will suffer significant harm”.

14        As to the grant of a denial of procedural fairness, the Judge concluded, in summary:

    By reason of the introduction of s 36(2)(aa), the issues to be considered by the Reviewer were enlarged.

    Section 36(2)(aa) introduced a new and separate criterion to that in s 36(2)(a) of the Act.

    The commencement of s 36(2)(aa) following the interviews in September and November 2011 does not mandate that the appellant be given an opportunity to be heard (further) by oral hearing or otherwise.

    The appellant had already been alerted to the issues of credibility raised by the Reviewer.

    The Reviewer was not obliged to provide a copy of the First IMR Recommendation as part of his mental processes, nor was he required to conduct a further hearing or interview with the appellant.

    The appellant’s claim that he privately follows the Zoroastrian religion ‘boarders [sic] on the absurd’ for reasons given by the Reviewer, and does not arise from the appellant’s evidence.

    The appellant’s criticisms are, in substance, a criticism of the Reviewer’s reasoning process based on the factual material, which amounts to a request for an impermissible merits review.

    The Reviewer identified the appellant’s claim as to religion and rejected it on the facts.

    While the actual finding as to religion was made in the context of s 36(2)(a), to be disregarded pursuant to s 91R(3), the Reviewer made it clear that he took the appellant’s conduct into account for the purposes of s 36(2)(aa) but was not satisfied that it was more than a “mere speculative claim” on the evidence.

15        In conclusion, her Honour said:

75.    I am not satisfied that the reviewer failed to accord the applicant procedural fairness as he was obliged to do in accordance with common law principles. I am satisfied that the reviewer considered the applicant’s integer of claim that he had converted to Christianity and/or that having regard to his activities in Australia he would have been perceived to have embraced the Christian faith.

76.    I am satisfied that in the context of economic and efficient administrative migration decision making, the recommendation is adequate, cogent and sufficiently well explained. The findings and reasons are ones that were reasonably open to the reviewer having regard to his factual and credit findings, both overall and especially in relation to the applicant’s claim that he would suffer significant harm because, having regard to his activities in Australia, he would be perceived to have embraced the Christian faith on returning to Iran.

77.    I am satisfied that the reviewer proceeded by reference to correct legal principles, correctly applied and acted in a way that was procedurally fair: M61 at [78].

16        Her Honour dismissed the application.

Notice of Appeal

17        There are two grounds of appeal, in essence:

    Denial of procedural fairness in the consideration of complementary protection (ground 1)

    Denial of procedural fairness/failure to consider an integer of the appellant’s claims in the Reviewer’s assessment of complementary protection (ground 2)

18        The issues in the appeal were clarified in the appellant’s written and oral submissions.

19        There is no issue as to the Reviewer’s findings with respect to the appellant’s claims based upon political beliefs including his asserted conflict with the Basij. The issues concern only the assessment of complementary protection. There is no issue between the parties as to the requirement to afford procedural fairness, or that the common law rules apply in the assessment of procedural fairness. There is no issue that s 91R does not apply to the assessment of complementary protection.

Ground 1

20        The issues raised by the appellant in the appeal under ground 1 are:

    Should the Reviewer have notified the appellant that the First IMR Recommendation would be relied upon in considering complementary protection?

    Should the Reviewer have notified the appellant that he was re-opening the First IMR Recommendation in order to consider complementary protection?

    Should the appellant been afforded a further hearing on the issue of complementary protection?

21        The appellant submits that the procedures adopted by the Reviewer in “reopening” his previous recommendation for the purposes of a consideration of the application of s 36(2)(aa) was procedurally unfair because, in summary:

    The appellant was not offered a further hearing on the issue of complementary protection.

    The appellant was not ‘alerted to the live issues’ under review or to the Reviewer’s rejection of, and criticism of, his claims.

    The appellant was not notified that the First IMR Recommendation would be the reason, or part of the reason, for finding against him, where it was credible, relevant and significant information of which the appellant should have been put on notice. Consideration of this submission requires some revisiting of the background chronology.

    The Second IMR Recommendation ‘mirrored, in such part’ the First IMR Recommendation which ‘lends itself on the perception that the Reviewer’s mind was already made up’.

    The Reviewer failed to raise with the appellant ‘in some way’ that it was reopening the case to consider complementary protection and what the issues were.

Consideration of ground 1

22        In the Submission, the appellant’s lawyers had stated:

We rely on the contents of this submission together with the country information provided as evidence that there are substantial grounds for believing that there is a real risk of significant harm for the Applicant if he is refouled.

23        After referring to statements made by the appellant during his review concerning his attitude to religion, the Submission stated:

These claims have not been addressed in previous submissions and therefore we respectfully request that they be taken into consideration when assessing this submission for complimentary [sic] protection. We have included country information relating to religion and Iran.

24        The Submission concluded with the statement ‘should you have any queries or require any further information, please do not hesitate to contact our office’.

25        There was no suggestion in the Submission that the appellant sought a further hearing, nor did the Submission request a further hearing. The appellant did not respond to the notification that the Submission had been forwarded to the Reviewer. The appellant did not seek a further hearing or respond to the provision of the First IMR Recommendation, nor did he seek a further hearing when he sent the Letter correcting the ‘unintentional mistake’ previously made. It is not suggested by the appellant that the Submission or the Letter in any way suggested that the appellant sought a further hearing or an opportunity to be heard further concerning complementary protection.

26        In the circumstances where the appellant was legally represented, it cannot be said that the Reviewer failed to put the appellant on notice of the First IMR Recommendation.

27        The appellant contends that the Reviewer should have notified him that the First IMR Recommendation would be relied upon for the consideration of complementary protection and that the Reviewer needed to inform the appellant that it would be taken into account in that consideration. In the circumstances where the complementary protection was an additional ground relied upon based upon statements already made to the Reviewer which also went to his claim for protection under the Convention, I do not accept that the Reviewer was obliged specifically to notify the appellant as suggested. The Reviewer was not obliged to give the appellant a commentary on his reasoning. The reopening of the consideration was to the benefit of the appellant and that further consideration must have been appreciated by the appellant’s lawyers. That is made clear from the fact that even after the receipt of the First IMR Recommendation which was almost simultaneous with the forwarding of the Submission to the Reviewer, the appellant sent the Letter concerning the “mistake”. Such a letter could only have been sent on the understanding that the Reviewer was yet to make a recommendation as to complementary protection on the basis of the Submission and the coming into effect of the new statutory provision.

28        The appellant has not established that he had a right to a further oral hearing, or that one that should have arisen by reason of the obligation to accord natural justice. The appellant points to Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 (at 591–2) (approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 161-162). However, from the Submission, it is apparent that the appellant himself relied upon previous statements made in interviews, together with the matters raised in the Submission itself. It was those matters that formed the basis for the Second IMR Recommendation and the reasoning of the Reviewer.

29        The appellant submits that he should have been notified that the First IMR Recommendation would be adopted. I do not accept that submission. The Submission itself refers to the matters relied upon for Convention protection, with further matters being raised as consequential to those asserted facts.

30        As the Second IMR Recommendation makes clear, the additional considerations were just that: additional conclusions arising from the same assertions made by the appellant, with the additional matters relating to claimed complementary protection.

31        The appellant also contends that there should have been a further hearing because the previous hearing had taken place some seven months prior to the Second IMR Recommendation and included findings as to credit. The appellant submits that he could have given evidence in effect to “update” his religious activities in Australia and could have provided further details to the Reviewer if the Reviewer had informed him of his concerns as to the lack of support for his claims for complementary protection.

32        As to the passage of time, the Second IMR Recommendation was made only two months after receipt of the Submission and there was nothing in the Submission that suggested any additional facts or circumstances from those raised by the appellant in his interviews some five months previously. If his activities had changed, relevant to the context of complementary protection, there was nothing to prevent the appellant from providing such material in either the Submission or the Letter. Reference to his religious activities was made only in the context of previous assertions. The Submission contained substantial material as to country information.

33        The appellant points out that the Reviewer reopened the case because the entry into force of s 36(2)(aa) amounted to an exceptional circumstance. This decision seems to have been made, according to the Reviewer, after a receipt of the Letter in support of complementary protection and ascertainment of the fact that the Department had not acted on the First IMR Recommendation. The Reviewer stated that he took into account the information in the Submission in the preparation of the Second IMR Recommendation. The appellant contends that the decision to reopen was not in response to the request but that is not clear from the Reviewer’s reasons and no consequence of this is apparent. The appellant says that had the appellant’s lawyers known that the Reviewer was reopening the case, it ‘may have made a difference’. However, no practical suggestion of such a difference has been advanced. Bearing in mind that his conclusions were not then known, the Reviewer was not obliged to put his reasoning to the appellant for comment and, I repeat, the lawyers must reasonably have known that the Reviewer was considering the Submission in the light of s 36(2)(aa). It is obvious, and would have been obvious to the appellant’s lawyers, that findings made in the First IMR Recommendation were relevant to the question of complementary protection and would only be affected insofar as the claims in the complementary protection submission had a bearing on those findings. It was not necessary for the Reviewer to recast the entire recommendation to accommodate consideration of the additional complementary protection issue.

34        The appellant had the opportunity to be heard and to make out his case; it was his case to make out. The notion that the Reviewer is not required to make out the appellant’s case is well-accepted (see SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [17] per Flick J and the authorities there cited). The appellant’s claims to complementary protection were based on previously made claims and statements. That was made clear in the Submission. The Reviewer was not obliged to advance a case for the appellant or to interrogate him in order to look for claims that had not been made. He did not have a right to respond to the reasoning of the Reviewer in considering the case that he advanced.

35        There is no suggestion that there was an additional issue in the Second IMR Recommendation as to which the appellant was unaware. The complaint is as to the Reviewer’s conclusions on the claims and facts raised by the appellant.

36        The appellant’s contentions as to religion and as to his concern that he would be perceived as a Christian convert (whether true or not) on his return to Iran were raised by and with the appellant during the interviews and in the Submission. I am not satisfied that there was a denial of procedural fairness. However, even if there was, the appellant has not pointed to any effect that this may have had on the decision, apart from the assertion that had the Reviewer pointed out the flaws and missing facts in the appellant’s case, he may have reached a different decision. The Reviewer was not obliged to point out those matters. The Reviewer was obliged to consider the appellant’s claims and to put him on notice of issues that may have been relevant to his consideration. The Reviewer identified the factors relevant to the assessment and took those factors into account. The Reviewer did not take into account material adverse to the appellant and fail to put that to him. He evaluated the matters advanced by the appellant in support of his claims, first to protection under the Convention and secondly, to complementary protection.

Ground 2

37        The issue identified by the appellant is as asserted; failure by the Reviewer to consider an integer of his claims in the assessment of complementary protection.

38        The appellant’s claim for complementary protection was based only on his religious activities in Australia. It is not in dispute that if the appellant had converted to Christianity, or would be seen in Iran as a practising Christian or Christian convert, that he would be at risk of serious harm and persecution.

39        In the Submission, the appellant referred to the following statements that he had made:

    He was being forced into the Islamic religion and practice as against his will.

    He had claimed to follow privately the Zoroastrian faith, like his father.

    He had claimed to have openly rejected Islam while in Australia.

    This information will reach Iranian authorities.

    He will be seen as a practising Christian in Iran having embraced the Christian faith.

    He faces a real and imminent threat of death as a Christian convert whether or not he had actually officially converted.

    He had become a Christian.

    He had made claims to the Reviewer that he wishes to follow Christianity and that he will denounce Islam if returned to Iran.

Consideration of ground 2

40        The Reviewer first considered the appellant’s religious beliefs in the context of his claim to protection under the Convention. These claims were, the Reviewer noted, only raised during the second interview on 3 November 2011 when the Reviewer asked the appellant whether he had any other reasons for leaving Iran and now being unable to return.

41        The Reviewer noted, at [73], that the appellant said that he had not mentioned his claims relating to religion earlier because he wanted to concentrate on his main claim. The Reviewer noted statements by the appellant as to his religion:

    He had thought of claiming to be a Zoroastrian but did not pursue it because he did not have enough information about it.

    He believes in God but he does not adhere to any single religion.

42        In referring to the Submission, the Reviewer noted that it expanded claims in relation to the appellant’s religious stance, of particular relevance in relation to complementary protection.

43        In the section of the reasons dealing with religion, the Reviewer commented that the appellant’s thinking ‘was confused, and evolving as he spoke’. The consideration of the appellant’s claim to complementary protection was, essentially, the consequence of his claimed conversion to Christianity and, possibly, his professed following of the Zoroastrian faith. The Reviewer recognised that when he said:

He identifies as a Shia Muslim. However, he appears to be describing his background rather than any religious adherence, and I therefore do not regard it as qualifying or adding to his previous statements.

More confusingly, the submission states that the claimant ‘has claimed to privately follow the Zoroastrian faith’. There is no detail on when he made such a claim, or any attempt to reconcile it with his other statements that his father practiced Zoroastrianism (by implication, not other family members), or with his claims elsewhere in the same submission about his interests in Christianity. I am not satisfied, on the basis of this statement alone, that the claimant is a Zoroastrian or will be perceived as such.

The submission highlights the claimant’s attachment to Christianity, variously stating that ‘he wishes to follow Christianity’, that he ‘has become a Christian’, that he ‘will be a member’ of the persecuted Christian minority, and that he will be perceived ‘as a practising Christian’.

Related to these claims is a broad rejection of Islam – that he was forced to practise Islam in Iran, that he has openly rejected Islam since arriving in Australia, and that he will denounce it if he returns to Iran.

44        The Reviewer was not satisfied that the appellant’s ‘fairly agnostic views’ have in the past, or will in the future, cause him to challenge or protest against the views of religious Shia Muslims, or that he has rejected Islam, or that he will be motivated to denounce it in the future.

45        As to the appellant’s claims concerning Christianity, the Reviewer was not satisfied on the available evidence that he has become religious or, more specifically, a Christian. He accepted that the appellant had attended one or more Christian services in Christmas Island and Curtin IDC but, for the purposes of determining the claims to protection for a Convention reason, the Reviewer was not satisfied that the appellant had engaged in his conduct otherwise than for the purpose of strengthening his claim to be a refugee. Accordingly, the Reviewer disregarded the conduct by reason of s 91R(3) of the Act. That is, the Reviewer made a finding on the evidence that the appellant had not become religious or, more specifically, Christian. It is apparent from the Reviewer’s reasons at [131] that this conclusion was not based upon the appellant’s actions in attending Christian services in Australia. The reasons for the Reviewer’s conclusion included:

    The claimed link of his conversion to Christianity with his rejection of Islam was not an accurate reflection of the appellant’s connection with Islam.

    The appellant’s statement that he believes in God but is non-religious.

    The late presentation of the claim as to religion raises questions about its sincerity and purpose.

    The appellant gave no real explanation or insight into his shift from a basically non-religious person into a religious (Christian) one.

    Such a shift would be a major step in a person’s life, that is, both to become religious and to also become Christian.

46        In that context, the Reviewer said at [135]:

I find on the available material – disregarding the conduct that falls within s.91R(3) of the Act – that the claimant is not a Christian, will not be perceived as such and has no interest or motivation to engage in any relevant conduct if he returns to Iran. I therefore find that he faces no real chance of persecution arising in connection with Christianity, or any other religion (such as any association with Shia Islam, Zoroastrianism or his non-religious disposition).

47        As the Federal Circuit Judge observed at [73], the Reviewer identified as an integer of the appellant’s claim that ‘he will be perceived in Iran as having converted because of his church attendance in Immigration detention’.

48        After reaching that conclusion, the Reviewer turned to the activities on Christmas Island and in Curtin which he had disregarded for the purposes of s 91R(3) but did have regard to, for the purposes of s 36(2)(aa) and to consider the claim as to whether the appellant would be seen as a Christian convert in Iran. The Reviewer considered this integer of the appellant’s claim and was not satisfied that the appellant had made out that claim. The Reviewer made it clear at [145] that he relied on his findings of fact, already set out in some detail. The Reviewer then made it clear that he took into account the conduct in Australia for the purposes of complementary protection, noting that he had accepted that the appellant had attended the Christian services on Christmas Island and at Curtin IDC. Turning to the question of whether that conduct put the appellant at risk of harm because people returning to Iran had seen him talking about religion and attending Church, the Reviewer noted the absence of any support or details as to that claim to involved ‘mere conjecture’.

49        As noted by the Federal Circuit Court Judge, the Reviewer’s reasoning was brief on this aspect but the appellant does not suggest that that brief reasoning was itself an error. Although, as Her Honour observed, there is a paucity of reasoning, the Reviewer stated at [145] that, in considering complementary protection, he recognised the claim that the appellant would be at risk of harm because people had seen his Church attendance in Australia. The Reviewer found that there were no substantial grounds for finding that any person or persons would have the resources and motivation to inform the Iranian authorities of the appellant’s activities, that it was ‘mere conjecture’. He did not reject the fact that such a claim could be made out but concluded that the appellant had not, on the evidence advanced, provided grounds to satisfy the Reviewer that he would be at real risk of significant harm because of his religious activities.

50        The appellant refers to the Submission and, in particular:

During the Applicant’s IMR he made statements that he was being forced into Islamic religion and practices against his will, despite sanctions against this conduct. The Applicant has claimed to privately follow Zoroastrian faith, like his father, and to have openly rejected Islam while in Australia. The Applicant expresses concern that if refouled, this information will reach Iranian authorities and he will face further persecution. The Applicant made claims that he wishes to follow Christianity, and will denounce Islam if returned to Iran.

These claims have not been addressed in previous submissions and therefore we respectfully request that they be taken into consideration when assessing this submission for complimentary [sic] protection. We have included country information relating to religion and Iran.

51        I observe that this refers to the previous claims and statement by the appellant as to his approach to Islam and the Zoroastrian faith. The concern is as to the reaction of Iranian authorities to these previously made statements. Despite the assertion that these claims had not been addressed in previous submissions by the appellant, the Reviewer did refer to them in his recital of the appellant’s claims and in his consideration. In addition, the Reviewer stated that he had regard to the country information that was included within the Letter .

52        In the appellant’s submissions in this proceeding, under the heading “Denial of procedural fairness/failure to consider integer”, the appellant referred to the assertion contained in the Submission that he will be seen as a practising Christian in Iran and that ‘the situation in Iran for Christian converts is known to be precarious, and those that have converted face a real and imminent threat of death. We submit that this will be the case whether or not the applicant officially converts’.

53        As this claimed, this does not assert that the appellant has converted to Christianity but that he will be seen as a Christian convert. While the appellant makes a complaint about the brevity of reasoning in the Reviewer’s stated lack of satisfaction as to the appellant’s conversion to Christianity, this is not the point. Rather, the question is whether the Reviewer considered the consequences of the appellant’s conduct in attending Church and the perceptions of that conduct in Iran.

54        The Reviewer did consider whether the appellant had become a Christian and whether he would be perceived to be a Christian, these being the questions relevant to the consideration for complementary protection. The Reviewer was not satisfied that there was an objective basis for the appellant’s claims within s 36(2)(aa).

55        The appellant has not established a basis for this ground of appeal.

Conclusion

56        It follows that the appellant has not established error on the part of the Federal Circuit Court Judge. The appeal should be dismissed with costs.

Associate:

Dated:    3 June 2014