FEDERAL COURT OF AUSTRALIA

ADK15 v Minister for Immigration and Border Protection

[2015] FCA 1187

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made on 1 June 2015 by the Federal Circuit Court of Australia be set aside and, in lieu thereof, an order in the nature of certiorari to quash the decision of the second respondent made on 12 February 2015 in case number 1313226.

3.    A writ of mandamus be issued, directed to the second respondent, requiring it hear and determine the application of the appellant for review of the decision of a delegate of the first respondent made on 8 August 2013 to refuse to grant the appellant a Protection (Class XA) visa according to law.

4.    The first respondent pay the appellant’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

1    The appellant is a male citizen of Iran who arrived in Australia in April 2012 as an offshore entry person. On 30 August 2012, the appellant was granted a Bridging E (Class WE) visa. He applied for a Protection (Class XA) visa, which was refused by a delegate of the Minister for Immigration and Border Protection (the Delegate) under s 65 of the Migration Act 1958 (Cth) (the Act). The appellant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), for review of the Delegate’s decision, claiming to have a well-founded fear of persecution on the basis of religion and on the basis of his imputed political opinion. As to the claim based on religion, it was, rather, a claim concerning the appellant’s agnosticism and lack of embrace of Islam. As to his imputed political opinion, the claim was based in part on the distribution of political and religious material. It is accepted by the appellant and, indeed, it was advanced by him, that in a theocratic nation like Iran, the religious and political are interrelated.

2    The Tribunal affirmed the Delegate’s decision. The Federal Circuit Court Judge dismissed the appellant’s application.

3    The appeal fundamentally relates to the finding by the Tribunal that, if he were returned to Iran, the appellant would not have a well-founded fear of persecution because of his agnosticism. The Tribunal found that the appellant would not publicly demonstrate or manifest his views and that merely failing to attend religious ceremonies would not mark him as an apostate. The appellant contends that, in considering his prior conduct in Iran, the Tribunal did not consider whether that conduct was shaped by the very persecution that he claimed to fear (cf Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473). Further, the appellant contends that the Tribunal failed to consider what his particular beliefs would motivate him to do and instead considered what agnosticism generally requires, contrary to the approach in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 and MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80.

THE APPLICATION FOR A PROTECTION VISA AND THE DELEGATE’S DECISION

4    In his application for a Protection visa, the appellant had relevantly stated:

    He was born a Muslim Shia but does not practise his religion. When he was growing up, he often questioned practices of Muslims and the meaning of the Koran.

    In or around 2007, he had been arrested for being drunk and lashed by the police. The number of lashes were increased when the police saw that the appellant’s tattoo of a Zoroastrian symbol on his back.

    He often searched for books with different theories regarding his religion and, in 2009, found some CDs which contained the text of prohibited books. The penalty for keeping such books is death.

    In December 2010, he used his passport and travelled to Indonesia as a tourist. He stayed in Indonesia for about three months and then returned voluntarily to Iran in early 2011.

    If he returns to Iran, he will be mistreated or harmed because of his actual and perceived political opinion as a dissenter of the present Iranian Government. This is because he distributed anti-Islamic and government texts.

    In a separate assertion, if he returned to Iran, he would be mistreated or harmed because of his religious beliefs, as he does not practise as a Muslim Shiite. He would, also, be mistreated or harmed because he is agnostic and will question other peoples’ religious beliefs.

5    The Delegate accepted that the appellant may be a non-practising Muslim and that he considers himself agnostic. The Delegate accepted that the appellant received a State-issued punishment for drinking alcohol and having a Zoroastrian tattoo but noted that there are no claims that these events continue to give him a profile of interest. In that regard, the Delegate noted that the appellant had been able to exit and enter Iran with no further adverse attention. The Delegate concluded that, given country information, non-practising Muslims are able to live in Iranian society without coming to the attention of the authorities and that nothing that the appellant has said, nor his previous actions, have indicated that he would come to the attention of authorities in the future. The Delegate concluded that the appellant does not have a well-founded fear on the basis of his non-practising of Islam.

written submissions before the tribunal hearing

6    In written submissions before the Tribunal hearing, the appellant asserted that ‘[h]is religious identity therefore requires him to question Islam (and indeed all religions) until he discovers the religion that he believes is appropriate. By being denied the right to learn and promote the learning of religions, the [appellant] is required to hide this identity in Iran’.

The Transcript of the hearing in the Tribunal

7    The appellant does not challenge all of the findings or reasoning of the Tribunal. Specifically, he does not challenge the Tribunal’s rejection of his claims to have attended at riots and protests and to have distributed political and religious material. In essence, the Tribunal rejected his claims to having been a political or religious activist.

8    Relevantly to this appeal, the Tribunal set out in its reasons the matters put to the appellant at the hearing and his responses. The appellant accepts that the record in the Tribunal’s reasons constitutes a fair summary of what took place, although he relies upon the transcript of the hearing in order to make submissions as to the context of the Tribunal’s record.

9    I shall first deal with the relevant parts of the transcript.

10    At the hearing, the Tribunal first asked the appellant questions about his religious claims. The Tribunal stated that it understood that in Iran religion and politics are often two sides of the same coin.

11    There was a discussion between the Tribunal and the appellant as to the meaning of “agnostic”. The appellant said that he did not want to follow the Muslim religion and does not believe in it. The appellant said that he believes in God but does not follow the Muslim religion. He agreed with the Tribunal that his views would not be dissimilar to those of many young people in Iran today.

12    The Tribunal referred to country information to the effect that, in private society, people are often derisive of the Islamic State and that they ‘know the line that you don’t cross’. The appellant agreed. The appellant added that in Iran, people have to claim that they are Muslim and that, if they don’t, they will ‘be in trouble’. When the Tribunal asked the appellant whether it had caused him difficulty and whether he had ever been motivated ‘to go out in the street and declare that you’re not Muslim’. The appellant answered that ‘I didn’t dare to do such a thing, because if you do that, of course you will sign your death penalty actually’. When the Tribunal suggested that agnostic views do not compel the appellant to declare his views publicly, he responded: ‘they can keep it in their own heart and they will – they follow that uh kind of life you want. But I was like that before these things happened to me in Iran, I was born in this way actually’. The appellant agreed that, in that regard, he was like many people in Iran. The appellant emphasises his response to the Tribunal to the effect that, as an agnostic, he can keep quiet about it and follow that kind of life because otherwise he would be persecuted.

13    The Tribunal returned to the question about religion in Iran and the fact that there are low rates of attendance at mosques in Iran, particularly in Tehran. It asked the appellant what the consequences would be for him if he continued to have his agnostic views. The appellant answered, through the interpreter, ‘[i]f you keep it in your – your in your ideas in – inside yourself of course nothing would happen to you but if you are involved in any conversation then talk about your ideas of course you will be in big trouble’.

14    The appellant relies upon this as a claim that his actions arose from a fear of persecution. The appellant does not challenge the Tribunal’s rejection of the specific actions claimed to have been taken by him but submits that this represented a different aspect of his claim. The Minister says that the appellant drew a distinction but did not identify what he would do or what he wanted to do, other than those matters that he specifically described to the Tribunal, which the Tribunal did not accept.

The post hearing submission

15    After the Tribunal hearing, the appellant made a further written submission (the submission). Relevantly to the appeal, part of the submission dealt with the appellant’s ‘claims to fear harm on the basis of his views’. In the submission, the appellant directed his attention to a preliminary view expressed by the Tribunal that:

… due to the nature of agnosticism, ie it is ‘not necessarily the sort of behaviour or belief that requires any positive behaviour’, which would mean someone would say ‘you need to stop doing that’, the Applicant may not be at risk of serious harm due to his religious views (or absence thereof).

16    The submission then stated:

We reiterate our earlier submissions that the Applicant has shown himself to be an active force in attempting to change the minds of others regarding the value and merits of Islam, through attempting twice to distribute anti-Islamic materials. We also reiterate that the Applicant’s political and religious views cannot be easily separated in this case, and therefore, it is not only his risk of harm as an agnostic which must be considered by the Tribunal, but his risk of harm as a politically minded and anti-Islamic activist.

17    The appellant says that the submission did not depend upon his concurrent claim to fear persecution on the grounds of political belief.

18    The Minister relies upon this paragraph to demonstrate that the claim to fear persecution on the grounds of religious belief, or lack thereof, related directly to the fact that the appellant was “an active force” and thereby was not an agnostic who through fear of persecution modified his behaviour so as not to express his views publicly.

19    The appellant submitted clearly that he did not act discreetly before leaving Iran but made organised and active attempts to convert others to his anti-Islamic views and that the Tribunal must consider what would happen to him if he was to return to Iran as ‘a politically active and vocal agnostic, eager to influence the views of other Iranians about Islam’.

20    In the submission, the appellant directed the Tribunal’s attention to Appellant S395, emphasising that the threat of harm that constitutes persecutory conduct is manifested where an applicant is required to live “discreetly” or has acted in a certain way only because of the threat of harm. In such circumstances, the appellant pointed out, the well-founded fear of persecution is the fear that unless a person acts to avoid harmful conduct, he or she will suffer harm. The appellant made it clear that he submitted that the Tribunal must consider what would happen to him if he does not act discreetly and continues to manifest his views and that the Tribunal must consider his claims in their totality. The appellant submitted that the Tribunal would need to consider why he has acted or will act discreetly and what would happen if he did not do so.

21    As to his voluntary return to Iran in 2011, the appellant submitted that he had ‘built up his political and religious belief system over a number of years and has been influenced by events since at least 1998, all of which have been put to the Tribunal’. It was not, the appellant said, only his decision to distribute material that was relevant to his claims but also ‘all of his interactions with the authorities preceding that date’.

The Tribunal decision

22    The Tribunal set out the appellant’s claims in some detail. As already noted, many of those claims are not relevant to the appeal, in that the appellant does not challenge the Tribunal’s decision on them. The appellant accepts that the Tribunal’s account of the hearing, which is set out at [18] – [22] of its reasons, is a fair summary and reflects some of the matters recorded above from the transcript.

23    The Tribunal recorded, at [19], that the appellant had said that he believed in God but not in Islam and that he did not believe in any religion ‘but was unable to go out and declare this position publicly in Iran’. The Tribunal recorded that the appellant had said that he would not dare to have publicly disclosed his agnosticism in Iran ‘because doing so would be to sign one’s death warrant’. After the record of the discussion as to whether agnosticism required a person to keep his views to himself, the Tribunal recorded that the appellant had said that he was like this, that is, he could keep it in his own heart, ‘before certain things happened to him in Iran’. The Tribunal recorded that the appellant had said that if one keeps one’s ideas inside oneself, then of course nothing would happen, but if ‘you are involved in any conversations then you would be in trouble’.

24    At [70], the Tribunal summarised its conclusions. It set out each of the aspects of the appellant’s claims that it did not accept, all of which related to his claim that he was present at the protests or disturbances in Tehran in March 2011. The Tribunal then said, at [71], that it did not accept that the appellant had given a truthful account of the circumstances and his experiences in Iran and that it did not view the appellant as a witness of credit. It stated that it therefore approached his evidence on all matters relevant to his claims with caution and scepticism.

25    The Tribunal then turned to the claims pertaining to religion.

26    The Tribunal accepted that the appellant holds agnostic views but did not accept that holding such views exposed him to a real chance of being harmed, or that there was a real risk that he would suffer significant harm because he holds such views. The Tribunal stated that it did not accept that there was a real chance that the appellant would be identified as, or imputed to be, an apostate on account of his personal agnostic views. The Tribunal noted that the appellant did not identify any circumstances in which he had or would make a public display of agnostic views, or how a lack of religious enthusiasm might result in him facing harm in the reasonably foreseeable future. In what seems to be a contradiction of this line of reasoning, the Tribunal then also stated that the appellant did not describe circumstances where his agnostic views or lack of religious enthusiasm had placed him in harm’s way. Relevantly, the Tribunal noted that ‘the applicant himself conceded that if he keeps his agnostic views in his heart, he would not face any trouble’. Accordingly, the Tribunal did not accept that if the appellant were to return to Iran he would publicly demonstrate his agnostic views or publicly demonstrate a lack of religious enthusiasm such as to place him at risk of harm.

27    Country information described the situation in Iran, such that where private matters remain private and Islamic rules and values are not challenged or violated, the authorities would not ordinarily interfere in the private sphere of citizens. The Tribunal stated that it considered this description of the situation in Iran to apply to the appellant’s circumstances.

28    The Tribunal then turned to the submission based upon the principles in Appellant S395, that is, that the appellant would be required or expected to suppress his agnostic views in order to avoid persecution. The Tribunal noted that it should make a finding as to whether the appellant will in fact engage in the activity in question. Recognising that asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm or to live discreetly to avoid such harm, the Tribunal then reasoned as follows:

    the appellant’s concern relates to a lack of religious enthusiasm, meaning that he would not engage in Mosque attendance or Islamic ritual;

    agnosticism does not require the appellant to take any action or activity that is positively required; and

    such absence of activity would not place him at risk of harm, in light of the country information referred to regarding the very low rate of Mosque attendance in Iran.

29    The Tribunal did not accept that the appellant would engage in any overt demonstration of his agnostic views or lack of religious enthusiasm. In that regard, the Tribunal noted that the appellant has held his agnostic views for a long time and yet returned to Iran from Indonesia in 2011 with the assistance of Iranian authorities. This, the Tribunal said, indicated to it that the appellant does not genuinely fear harm in Iran on account of his long-held agnostic views and lack of religious enthusiasm.

30    Under the heading ‘The applicant’s claims pertaining to political opinion’, the Tribunal returned to the appellant’s claims that he took part in political activities and distributed politically sensitive and anti-Islamic material. The Tribunal repeated that it rejected his account as to that activity and the claimed sequelae to the incident where the appellant said that he had distributed such material. The Tribunal repeated that it rejected his evidence pertaining to political activities and said that, in the light of that and its concerns generally as to his credibility, it did not accept that the appellant engaged in activities that would give rise to an adverse profile due to political opinion in Iran prior to his departure. The Tribunal took into account evidence provided after the hearing asserting that the appellant would send various political and religious works to his friends from an identified email account. However, the Tribunal still remained not satisfied that the distribution of politically sensitive material was motivated by genuine political conviction or, in any event, would become known to the Iranian authorities.

31    In summary, it would seem that the Tribunal’s consideration centred on two aspects which it characterised broadly under the headings of claimed political activities and claimed religious belief. Under the heading of political activities, the Tribunal treated compendiously the claim to have distributed political and anti-Islamic literature and rejected those claims on credit grounds. As to the claims to agnosticism, the Tribunal considered that such a belief did not require any overt activity that the appellant would not engage in such activity and held that there was no fear of persecution, stating that it took into account the principles arising in Appellant S395.

The decision of the Federal Circuit Court Judge

32    The Federal Circuit Court Judge observed that the appellant had conceded that the Tribunal had asked itself the proper question, consistent with Appellant S395 in the context of making a finding, as to what the appellant would do in respect of his agnostic beliefs and his alleged claim of fear of persecution in respect of his agnostic beliefs. His Honour noted what he characterised as ‘serious adverse credit findings’ and his Honour said that these were clearly taken into account on all matters as identified by the Tribunal in its reasons. His Honour rejected the submission, at [5], that ‘it was necessary for the Tribunal to make an independent preliminary finding about what it was the applicant wants to do. As counsel for the applicant conceded, the finding of what the applicant would do as made by the Tribunal consistent with its obligation was a finding that follows from having considered what it is that the applicant had identified he wanted to do’. His Honour concluded that the Tribunal had taken into account the appellant’s claims and evidence in respect of his agnostic beliefs and that the finding as to what the appellant would do was open to the Tribunal. His Honour did not accept that the Tribunal failed to consider the appellant’s agnostic views nor that the appellant had claimed a belief that he had to proselytise his agnosticism, nor that he had to make public declarations about his agnosticism.

33    His Honour found that there had been no jurisdictional error and that the Tribunal had dealt with the entirety of the appellant’s claims.

Amended grounds of appeal

34    The grounds of appeal can be summarised as follows.

35    The Federal Circuit Court Judge erred in:

    Holding that the Tribunal correctly considered whether, were the appellant to practise his agnosticism in the way he chose to, there was a real risk of persecution.

    Holding that the Tribunal had considered whether the choice of the appellant to keep his agnostic views private was a voluntary choice uninfluenced by a fear of harm.

    Finding that the Tribunal had considered the particular expression of religious identity of the appellant. Rather, the Tribunal adopted a conclusion based upon agnosticism in the abstract, which did not require the appellant to proselytise his faith.

    Finding that the appellant had not claimed before the Tribunal that his beliefs required him to inform others in a public manner of his agnosticism.

    Considering the Tribunal’s findings of credit in circumstances where those findings were irrelevant to its consideration of the appellant’s claims on the issues of religious beliefs and expression.

    Finding that the Tribunal did not engage in an error of the kind identified in Appellant S395 and NABD.

36    As identified in the appellant’s written submissions, in essence, the grounds of appeal relate to two asserted distinct errors:

    The Tribunal, in considering the appellant’s prior conduct in Iran, did not consider whether his conduct was shaped by the very persecution that he claimed to fear (the error said to arise from Appellant S395).

    The Tribunal failed to consider what the appellant’s particular beliefs would motivate him to do. Rather, it adopted an a priori position about what agnosticism require and then found that it did not require the appellant to broadcast his views (contrary to NABD).

The appellant’s submissions

37    The appellant points to the following aspects of his claims:

    He asserted in his written submissions that he is required to hide his religious identity.

    When asked whether he was motivated ‘to go out in the street and declare that you’re not Muslim’, he replied ‘I didn’t dare to do such a thing, because if you do that of course you will sign your death penalty actually’.

    The appellant submitted a statement that if he can keep his views ‘in-inside [himself] of course nothing would happen to [him] but if [he is] involved in any conversation and then talk[s] about [his] ideas then [he] would be in trouble’. This statement, the appellant says, amounted to a claim that his behaviour was modified by a fear of persecution.

    The written submission to the Tribunal, that it must consider what would happen to the appellant if he were to return to Iran as a politically active and vocal agnostic eager to influence the views of other Iranians about Islam.

38    The appellant submits that he made a specific claim that he wished to promote and promulgate his agnostic beliefs publicly in Iran but had not done so out of a fear of persecution. Further, the appellant contends that his claims to have participated in political protests and to hold anti-regime views and his claims to agnosticism and a desire to promote his questioning views were clearly distinguishable, although he acknowledges that they were related. It follows from the separate claims, the appellant submits, that even though the Tribunal rejected his claims to have participated in political protests, the Tribunal needed to consider his desire to promote and promulgate his agnostic beliefs.

39    The appellant submits that the Tribunal’s failure to consider what might happen to him if he did live openly as an agnostic and promulgate his agnostic beliefs constituted a failure to consider his claims and thereby amounted to jurisdictional error for the reasons set forth in Appellant S395 at [51] and [53]. The Tribunal did not ask why the appellant would feel the need to keep his views to himself and whether that was in the hope of avoiding persecution and whether the adverse consequences were sufficient to make the appellant’s fears well-founded.

40    The appellant accepts that findings that his likely conduct in Iran was not motivated by a fear of adverse consequences and that he would not publicly practise or proselytise this agnosticism would be sufficient for the Tribunal to have dealt correctly with his claims (as in NABD). That is, had the Tribunal considered the claims and come to the conclusion that, were the appellant to practise or deploy his agnosticism in the way he chose to, there was not a real risk of being persecuted, there would not be an error (NABD at [168]). The appellant points out that it was recognised in MZZJO (at [47]) that religious adherence is an attribute held internally and manifested (or not) depending on choice, culture and custom. It is necessary in a claim for persecution on the grounds of religious belief for the decision-maker to ascertain whether the person in fact holds the particular religious belief or adheres to it. However, it must be considered in the context of the particular individual’s belief, rather than the application of some standardised or assumed level of knowledge.

41    The appellant submits that the Tribunal’s finding was predicated on a faulty chain of reasoning, namely:

    The Tribunal accepted that the appellant did hold agnostic views.

    The appellant did not identify any circumstances in which he had or would make a public display of his agnostic views.

    The appellant conceded that if he keeps his agnostic views to himself he would not face trouble.

    The statements made to the Tribunal by the appellant must be seen in context, being that he had expressly stated that he believed that to publicly state one’s agnostic beliefs in Iran was to invite harm or death.

    The Tribunal failed to consider whether this explained why the appellant had not made a public display of his agnostic views in the past and would not do so in the future.

    That is, the appellant expressly referred to the fact that it was a fear of persecution which modified his desired behaviour.

    The Convention protects the freedom of expression of one’s beliefs not just the having of beliefs (Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [18]).

    The Tribunal’s finding that the appellant would not publicly demonstrate his agnostic views must be predicated on the finding that, if the appellant kept his views to himself, he would not be at risk of persecution. There was no finding, of what he wanted to do, rather than what he could theoretically do if he returned to Iran.

42    The Tribunal’s error, the appellant submits, was in considering the requirement of agnosticism generally in the context of it being in the nature of a religious belief in the abstract, rather than the appellant’s particular expression of it. Further, he says, the Tribunal relied upon its own view that agnosticism did not of itself require any positive behaviour.

43    The appellant rejects the Tribunal’s finding that he would not engage in the overt demonstration of his agnostic views or lack of religious enthusiasm should he return to Iran because he had not engaged in any such activity previously. The appellant says that this is not an independent finding by reason of the structure of [79] of the Tribunal’s reasons which reads as follows:

I do not accept that the applicant would engage in any overt demonstration of his agnostic views or lack of religious enthusiasm should he return to Iran in the reasonably foreseeable future. I am reinforced in this finding by noting that the applicant has held his agnostic views for a long time, and yet returned to Iran from Indonesia in 2011 with the assistance of the Iranian authorities. This indicates to me that the applicant does not genuinely fear harm in Iran on account of his long-held agnostic views and lack of religious enthusiasm.

44    The appellant contends that the use of the word “reinforced” indicates that this was not an independent finding but was tied to the findings generally as to agnosticism, which was not the correct way of dealing with the appellant’s claim.

The Minister’s submissions

45    The Minister points out that the only way in which the appellant claimed to have engaged in any positive action in relation to his religious beliefs resided in the factual claims concerning the possession and distribution of prohibited religious texts. The Tribunal rejected that aspect of his claims and this is not challenged in the appeal. The Minister says that the appellant gave no evidence about how he questioned other people’s religious beliefs. Contrary to the appellant’s submissions, the Minister submits, the Delegate did make a specific finding when he said that ‘[g]iven the country information above I consider non-practising Muslims are able to live in Iranian society without coming to the attention of the authorities. There is nothing the [appellant] has said or that his previous actions have indicated that he would do so in the future’.

46    The Minister submits that the appellant’s claims based on his agnosticism were tied to his claims based on his political opinion and that was his case in so far as it related to possession and distribution of prohibited texts. In any event, the Minister submits, there was no other evidence to support the claim that the appellant had a well-founded fear of persecution based solely on his agnosticism. He points out that the appellant did not give any other evidence that, if he were to return to Iran, he would engage in any conduct that would be characterised as the promotion or promulgation of his agnostic beliefs publicly, apart from his claimed political activities. So much was accepted by the Tribunal (at [20]).

47    The Minister points to the appellant’s post-hearing written submission in which the appellant emphasised the active nature of his attempts to change the mind of others regarding the value and merits of Islam through the attempted distribution of anti-Islamic materials and the assertion that political and religious views cannot be easily separated. The written submissions specifically urged the Tribunal to consider what would happen to the appellant if he were to return to Iran ‘as a politically active and vocal agnostic, eager to influence the views of other Iranians about Islam’. In this context, the appellant submitted that the appropriate question for the Tribunal was what would happen to him if he does not act discreetly and rather continues to manifest his anti-Islamic and anti-regime views.

48    The Minister points out that the appellant’s claims based on his agnosticism, to the extent that they involved claims concerning the public promulgation of his beliefs in Iran were, by him, expressly tied to the factual claims based on political opinion, namely the possession and distribution of prohibited texts. The Minister concedes that a rejection of the political claims was not sufficient consideration by the Tribunal, which was still required to consider whether there was a real chance of serious harm based on the appellant’s agnosticism divorced from his claimed political activity. The Minister points out that the questioning of the appellant about his agnosticism was because the Tribunal was conducting a review of the Delegate’s decision, in which the Delegate had rejected the appellant’s claim to have a well-founded fear of persecution for reason of agnosticism.

49    The Minister emphasises that the way in which the claims were presented to the Tribunal is not the way in which the claims are presented in the appeal.

50    The Minister submits that this is not a case in which the Tribunal found that the appellant will live discreetly in order to reduce a risk that would otherwise have been well-founded. Rather, he says, the Tribunal considered what the appellant would do if he were to return to Iran in so far as his agnosticism was concerned. It found that he would not engage in Mosque attendance or Islamic ritual, or in any overt demonstration of his agnostic views or lack of religious enthusiasm. Such a finding was consistent with the appellant’s evidence and the way in which his case was advanced. It was consistent with the fact that the appellant did not give any other evidence that, if he were to return to Iran, he would engage in any conduct that could be characterised as the promotion or promulgation of his agnostic beliefs publicly apart from his claimed, and rejected, political activities. It was also consistent with the evidence, as noted by the Tribunal, that the appellant’s previous voluntary return to Iran indicated that he does not genuinely fear harm on account of his long held agnostic views and lack of religious enthusiasm. That is, the Minister submits, the Tribunal did not err by failing to ask the correct question. It considered whether the appellant faced a real chance of serious harm based on his agnosticism if he were to return to Iran. Having regard to its findings as to the appellant’s future conduct in the light of the country information, the Tribunal found that he could not face any such risk of harm.

Consideration

51    Relevant principles have been set out in MZZJO, Appellant S395 and NABD.

MZZJO

52    In MZZJO, the Full Court pointed out that where the Tribunal is obliged to determine whether there is a subjective fear of persecution and that is rejected, it is not necessarily obliged to proceed to consider whether there is an objective fear in the absence of an ‘immutable attribute’ such as race or skin colour. That case, as here, included claimed agnosticism. The Full Court stated at [40] – [41]:

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 his or her country of nationality or habitual residence, irrespective of whether it believed her or his account of what had happened in the past. (citations omitted)

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.

53    The Full Court proceeded to examine the appellant’s agnosticism. It pointed out (at [47]) that the character of a religious belief, or adherence to a particular religion, is no different in character, for the purposes of the Convention, from holding a particular political opinion. It is an attribute held internally and manifested (or not) depending on choice, culture and custom. An evaluation for the purposes of Art 1A of the Convention, as implemented in s 36 of the Act, ‘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’. The questioning is of that particular individual’s belief rather than the standard of some standardised or assumed level of knowledge.

54    The Full Court noted (at [64]) that evidence relied on by the appellant to support his claims of rejection of Islam was factually separate from his agnosticism claims. It followed that the decision whether to accept his accounts of his “un-Islamic” activities did not depend on whether the Tribunal believed that he was an agnostic (at [65]). In that regard, the Full Court said (at [68]) that the fact that the Tribunal had dealt with both the claim to be an agnostic and the claim that the appellant will be perceived as an apostate together was explicable because of the link between them made by the appellant himself and by his migration agent in submissions. The Full Court observed that the Tribunal had dealt with the appellant’s claims at the factual level by setting out the bases for his claims for protection, based on his asserted “un-Islamic views”, which were said all to involve a claim that he would be perceived as an apostate.

Appellant S395

55    In Appellant S395, McHugh and Kirby JJ criticised the Tribunal for failing to consider whether the choice made by the appellants to live discreetly was voluntary, uninfluenced by the fear of harm if they did not do so, or to discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm, or to consider whether the appellants wished to display or disclose their sexuality or relationship in Bangladesh. It was accepted by the Tribunal that it was not possible to live openly as a homosexual in Bangladesh. The Tribunal consulted country information, in coming to that conclusion, rather than the evidence presented by the appellants. Their Honours said (at [39]) that the Tribunal was entitled to exercise its jurisdiction more widely than asked but that it must do so in accordance with law. Their Honours then said that where it was highly likely that the appellants acted discreetly because they feared that they would suffer harm unless they did so, the Tribunal had to consider the “real question”, being whether the appellants had a well-founded fear of persecution. It is still persecution if those persecuted can eliminate the harm by taking avoiding action within the country of nationality.

56    From the reasoning at [41] – [43], it is apparent that the question remains whether the particular applicant would be persecuted for a Convention reason, even if his or her actions are unreasonable and irrespective of whether that applicant has modified his or her actions in the past to avoid persecutory harm. However, it was said to be relevant whether the applicant has acted in the way that he (or she) did only because of the threat of harm. In such cases the well-founded fear of persecution is the fear that, unless the person acts to avoid the harmful conduct, he or she will suffer harm, and the threat constitutes the persecutory conduct.

57    As it was clearly stated at [51]: ‘Central to the Tribunal’s decision was the finding that the appellants had not suffered harm in the past because they had acted discreetly’. The evidence was that the appellants were in fact discreet about their relationship only because they feared that otherwise they would be subjected to discrimination (at [53]). That meant that the Tribunal had to consider whether that behaviour that had been exhibited in the past was the result of fear. This, as Gummow and Hayne JJ said at [73], required the decision maker to decide what may happen if the applicant returned to the country of nationality which, in turn, requires close consideration of the situation of the particular applicant. In the example of homosexuality in Bangladesh, it was necessary to consider whether the applicant would stand apart from other homosexuals in that country for any reason, where the premise was that homosexuality is generally ignored. Basically, the Judges of the High Court in the majority agreed that it is no answer to a claim for protection to say that adverse consequences can be avoided by hiding the fact of belief or behaviour. Justices Gummow and Hayne drew a distinction at [82] between saying that an applicant would live discreetly, in the sense of saying that the expectation was that he or she would in fact do so, and saying that an applicant is expected to live discreetly, where that means that the applicant must do so. The error in Appellant S395 was in failing to ask why the appellants would live discreetly – an inquiry as to the position of the appellants themselves.

NABD

58    In NABD, the appellant’s primary case of fear of persecution on the grounds of religion in Iran was disbelieved. However, the Tribunal accepted that he had joined a Christian Church after leaving Iran. The Tribunal then addressed the question of what was likely to happen to him on account of his religion if he returned to Iran. Chief Justice Gleeson pointed out (at [8]) that ‘[t]he ultimate concern of the Tribunal, of course, was with the appellant, not with Christians as a class’, although it was relevant to consider the treatment of Christians generally. The Chief Justice held that it was open to the Tribunal to accept the distinction between converts to Christianity who maintain a low profile and persons involved in ‘aggressive outreach’ and to regard it as useful in considering the position of the appellant. The Tribunal noted that the appellant’s church did not advocate proselytising so that, taking account of the appellant’s practise of his faith, he could practise his faith without constraint as he had done outside Iran without facing a real chance of persecution. Once it was accepted that not all Christians suffer persecution, the Tribunal was required to consider the individual circumstances of the appellant in the light of available information (at [10] – [11]).

59    Justices Hayne and Heydon, also in the majority, distinguished Appellant S395 on the basis that the Tribunal did not ask whether it was possible for the appellant to live in Iran so as to avoid adverse consequences but considered whether the appellant had a well-founded fear if he returned to Iran (NABD at [151]). Their Honours noted, at [154], that the appellant had not contended that he would be exposed to negative persecutory conduct as a Christian convert. The Tribunal had concluded in that case that the appellant would not choose to broadcast his practice of Christianity broadly. This, as their Honours said, would be consistent with the appellant choosing a course in order to avoid adverse consequences. However, the Tribunal had made findings that the appellant’s likely conduct was not motivated by such fear and that any decision to avoid proselytising or actively seeking attention on matters of religion was not inconsistent with the appellant’s beliefs and practices, and that he was not constrained in his practise due to a perception that different, more open and aggressive, behaviour would leave him at risk of persecution.

60    Their Honours again emphasised, at [158], that the question for the Tribunal must always be whether the particular applicant is entitled to the visa sought. The Tribunal had related its conclusions to the information that it had about conditions in Iran and had concluded that the appellant’s conduct was properly described as non-proselytising and would fall wholly within one of the descriptions of conduct given in the information that it had about treatment of Christians in Iran. As the Tribunal had not asked whether the appellant could avoid persecution but did ask what may happen to the appellant if he returned to Iran, based on his past conduct, the Tribunal had concluded that were he to practise his faith in the way he chose to do, there was not a real risk of his being persecuted. This, Hayne and Heydon JJ said (at [168]), did not constitute jurisdictional error.

The present case

61    The difficulty in this case is that the appellant’s various claims were inter-dependent and somewhat inconsistent. For example, a claim that he kept matters to himself for fear of persecution is inconsistent with a claim to religious and political activism. The difficulty for the Tribunal is that it rejected the latter claims and was left with the former for separate consideration.

62    The Tribunal rejected the appellant’s claims of participation in protests in March 2011. The Tribunal did not accept that the appellant had given a truthful account of circumstances and his experiences in Iran. The Tribunal said that it did not view the appellant as a witness of credit and that it would ‘therefore approach his evidence on all matters relevant to my decision with caution and scepticism’.

63    Turning to the claims pertaining to religion, the Tribunal accepted that the appellant holds agnostic views. It did not accept that such views expose him to a real chance of being harmed or that there is a real chance that he will be identified as, or imputed to be, an apostate on account of his personal agnostic views. The Tribunal stated that the appellant did not identify any circumstances in which he had or would make a public display of those views. If he kept his views to himself, as conceded by the appellant, ‘he would not face any trouble’. The Tribunal did not refer to the assertion in the pre-hearing written submissions.

64    The appellant says that his evidence was that he could not express his views for fear of harm. That is, he submits that the evidence was that he would do so but for his fear of persecution. The Tribunal did consider the appellant’s likely future conduct. It stated that it did not accept that if the appellant were to return to Iran, he would publicly demonstrate his agnostic views or publicly demonstrate a lack of religious enthusiasm.

65    The Tribunal then stated that it considered whether the appellant would be required or expected to suppress his agnostic views in order to avoid persecution. The Tribunal acknowledged that asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid harm or to live discreetly. The Tribunal said that this meant that it had to make a finding as to whether the appellant will in fact engage in the activity that would bring him into harm.

66    In reasoning similar to that in NABD, the Tribunal turned to the requirements or demands of the appellant’s belief. It said that it had difficulty identifying any activity that was positively required or is amenable to suppression. It noted that the appellant’s concern was a lack of religious enthusiasm. It accepted and found that this meant that he would not engage in Mosque attendance or Islamic ritual but also found that this non-involvement would not place him at risk. The Tribunal made a finding that it did not accept that the appellant would engage in any overt demonstration of his agnostic views and, bearing in mind his voluntary return to Iran in 2011, that the appellant does not genuinely fear harm in Iran on account of his long-held agnostic views and lack of religious enthusiasm. The Tribunal rejected the appellant’s account of specific consequences of his religious attitudes, being a claimed arbitrary extension of military service which would not in any event be relevant to his return, and his tattoo, which the Tribunal did not accept would impute to him the profile of an apostate. The Tribunal did not answer the question that it posed: even though he would not engage in an overt demonstration of his views, did this contribute to suppression of the appellant’s views for fear of persecution.

67    The appellant points to the transcript and his statements that he did not dare publicly to declare his views and his responses to the Tribunal about the need to keep agnostic views to oneself. He submits that the evidence is that he could live discreetly but that the Tribunal did not ask if he would do so to avoid persecution. The appellant answered a question from the Tribunal and acknowledged that agnosticism does not compel or require open expression of religious views. He acknowledged that he had kept his views to himself. When the Tribunal asked him about the consequences in the future, he said that if he were to talk about his ideas, he would be in “big trouble”.

68    The difficulty is that the appellant’s primary submission was based on his likely religious activism as linked to his political activism, which the Tribunal rejected on the merits. There is a tension between the appellant’s claims that, as an agnostic, he kept his views to himself and thus modified his behaviour out of a fear of persecution on one hand and his claims that he was active in expressing his views on the other. The Tribunal rejected the claims of activism. That left the Tribunal with a claim to the consequences of agnosticism on the part of a person who had not been active in announcing his views but still claimed that he would return to Iran as a politically active and vocal agnostic. While the context of the claims was that the appellant’s future claimed activity was a continuation of his past, rejected, activism, it was a separate claim.

69    It may be that the Tribunal would have rejected the claimed future action as an agnostic who wished to be outspoken but who had to keep his views to himself on the basis that it rejected the appellants past claimed activism. However, the Tribunal did not do so. Rather, it dealt with the appellant’s return to Iran as an agnostic, which belief or lack thereof did not require any activity that would put the appellant at risk.

70    In my view, the appellant did make a specific claim that he was an agnostic and that he would want to state his beliefs publicly, as an agnostic or non-believer, but that to do so would expose him to a risk of harm.

71    The Tribunal rejected his past claimed religious and political activism. It rejected his future political and associated religious activism. Those findings were open to the Tribunal on the evidence for the reasons that it gave.

72    Having rejected those claims and having accepted that the appellant was an agnostic, the Tribunal asked itself whether, simply by reason of that agnosticism, the appellant would express his views publicly and concluded that he would not. That finding was open to the Tribunal for the reasons that it gave.

73    However, the Tribunal was then faced with the claim arising during the hearing: that irrespective of his claimed past and future political and associated religious activities, the appellant, as an agnostic, would wish to make his religious views public and that he could not do so in Iran for fear of the consequences. That claim did not depend on the politically associated religious claims. The Tribunal was obliged to consider whether the appellant would refrain from such asserted desired behaviour for fear of persecution in Iran. It did not do so and did not consider this aspect of the appellant’s claims. That failure constituted jurisdictional error. The Federal Circuit Court Judge was therefore in error in dismissing the application for review of the Tribunal’s decision on the basis of absence of jurisdictional error.

74    It follows that the appeal should be allowed and the Minister pay the appellant’s costs of the appeal. The orders made by the Federal Circuit Court should be set aside and, in lieu thereof, there should be an order in the nature of certiorari to quash the Tribunal’s decision. Further, a writ of mandamus should be issued, directed to the Tribunal, requiring that it hear and determine the application of the appellant for review of the Delegate’s decision to refuse to grant the appellant a Protection visa according to law.

Associate:

Dated:    6 November 2015