FEDERAL COURT OF AUSTRALIA

ALC15 v Minister for Immigration and Border Protection [2016] FCA 730

ORDERS

THE COURT ORDERS THAT:

1.    Grant leave to the appellant to raise the argument at [1] to [18] of his written submissions under the rubric of notice of appeal ground 1.

2.    Grant leave to the first respondent to rely upon the notice of contention filed on 5 February 2016.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

INTRODUCTION

1    The appellant is a citizen of Iran. He arrived on Christmas Island by boat on 23 July 2012 and on 12 December 2012 applied for a Protection (Class XA) visa (the Visa).

2    The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (at the time the Refugee Review Tribunal) (the Tribunal): ALC15 v Minister for Immigration & Anor [2015] FCCA 2643 (ALC15). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant the Visa.

BACKGROUND

3    The appellant claims to face harm on return to Iran by reason of his political opinion, his religion and as a member of a particular social group, failed asylum seekers. The appellant set out his claims in a statement of claim accompanying his protection visa application, in submissions prepared by his migration agent for the Tribunal and in person at the Tribunal hearing. The appellant’s claims can be summarised as follows:

(1)    in 2009 he was arrested during the Ashura day protests. He spent approximately four months in prison. He was eventually given a 10 year suspended sentence and released on condition that he would not reoffend. He was also required to report to the Basij, initially, weekly and then every two weeks;

(2)    in February 2011 the Basij required parents to attend the school at which the appellant’s daughter was enrolled to celebrate the 31st anniversary of the Islamic revolution in Iran. The appellant did not attend. His wife told the school that the appellant did not attend because he was sick. The appellant was asked to go to the school to explain his failure to attend but did not do so;

(3)    on 14 May 2012 parents were invited to the appellant’s daughter’s school to discuss the following year. They were told that the girls would need to wear a chadour. The appellant’s daughter was seven years old at the time and he objected to her having to wear a chadour. The Basij member who was at the meeting pushed his daughter, she fell to the ground and the appellant told his wife to leave with his daughter. The appellant wanted to complain to the police about the incident. The Basij boss was called to the school. He was from Sepah and the appellant recognised him as the person in charge of the Basij headquarters at which he had to report. The Basij boss asked the appellant what he wanted to tell him and the appellant told him he would like to make a complaint to the police. The Basij boss slapped the appellant in the face, told him he had abused the supreme leader and kicked his leg, causing the appellant to fall. The appellant heard the Basij boss ask for his name but he managed to escape;

(4)    that evening the Basij went to the appellant’s house and told him that he should come to Basij headquarters. One of the appellant’s customers told the appellant that the Basij had written a report about him which said that he disregarded the school order, abused the supreme leader, bit the Basij officer and had escaped;

(5)    two days later the Basij went to the appellant’s house again and told his wife that it would be better if he reported to Basij headquarters. The Basij also went to the appellant’s workplace;

(6)    the appellant left Iran as soon as he could, terminating the lease of his home and recovering the rental bond. His wife and daughter went to live with his mother in law and their furniture was given to his sister in law;

(7)    after arriving in Australia, the appellant converted to Christianity and posted religious information on his Facebook page. The appellant’s wife has also converted to Christianity.

4    On 20 June 2013, the appellant attended an interview with a delegate of the Minister. Following that interview, the appellant’s migration agent provided a written submission in support of the appellant’s new claim made at the interview namely, his conversion to Christianity. On 17 January 2014, the delegate refused the appellant’s application for the Visa.

5    On 21 January 2013, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant attended a hearing before the Tribunal on 6 March 2015 at which he was represented. His representative provided a written submission to the Tribunal.

6    On 11 March 2015 the Tribunal made its decision affirming the delegate’s decision not to grant the appellant the Visa.

THE TRIBUNAL DECISION

7    The Tribunal accepted that the appellant was detained for approximately four months after being arrested at the Ashura Day protests in 2009 and that upon his release he was subjected to some limited reporting requirements although not for two years as the appellant claimed. The Tribunal also accepted that one of the conditions of the appellant’s release was that he would be subject to a lengthier term of imprisonment if he breached the terms of his release.

8    The Tribunal accepted that the appellant did not attend the February 2011 celebration of the anniversary of the Islamic revolution at his daughter’s school but found that, after the appellant provided a medical certificate, the matter was finalised.

9    The Tribunal accepted that an incident took place in May 2012 at the appellant’s daughter’s school when the appellant disputed a new rule sought to be imposed by the school Basij that all female students had to wear a chadour. However, the Tribunal did not accept that incident was as significant as the appellant claimed because:

(1)    it did not appear plausible that the Basij would only attend his home on 2 or 3 occasions if the incident was as significant as he claimed. Further, irrespective of how often the Basij visited the appellant’s home, it was not plausible that they would stop visiting his wife 6 to 7 months after his departure from Iran if he was of ongoing interest to the Basij;

(2)    prior to his departure from Iran, the appellant attended the passport office to ensure that he was not on an airport “blacklist”. If the appellant was wanted by the Basij it was not plausible that he would risk attending the passport office given that he had a contact in the Basij office who may be able to make such an enquiry more safely and that the Basij had contact with Iranian government authorities; and

(3)    prior to departing Iran, the appellant was able to terminate his rent contract, recover his rental bond and arrange for his furniture to be given to his sister in law. It was not plausible that the appellant could have arranged his affairs if he was subject to immediate harm as he claimed.

10    The Tribunal accepted that after his arrival in Australia the appellant started to attend a Christian church, that he went to live in a house where all of the occupants were Christian, that he attends Bible study classes and that he had a reasonable knowledge of Christianity. The Tribunal noted that, in its experience, once the pressure of an uncertain migration status and being away from family and support is removed it is not uncommon for people to return to their former religious beliefs. The Tribunal was not satisfied that the appellant’s conversion was genuine because it was not satisfied that it was undertaken for any reason other than a form of “temporary therapy” to assist with the pressures caused by his uncertain migration status and living in a country without family and support.

11    The Tribunal referred to the psychological reports provided to it about the appellant’s mental state and his ongoing need for support but was satisfied that the appellant’s mental state may eventually be positively impacted by the resolution of his migration status. By reference to country information, the Tribunal also noted that ongoing medical treatment that may be required by the appellant is available in Iran.

12    The Tribunal, noting that he understood it would not be safe to practice Christianity in Iran, did not accept that the appellant told his family, other than his wife, about his conversion to Christianity. The Tribunal was not satisfied the appellant’s wife had converted to Christianity “in her head” or at all.

13    The Tribunal was not satisfied that the appellant was of ongoing interest to the Iranian authorities, or anyone else, immediately prior to his departure from Iran.

14    The Tribunal did not accept most of the appellant’s material evidence and was not satisfied that the appellant was someone to whom protection obligations were owed pursuant to s 36(2)(a) of the Act. The Tribunal also considered the criterion under s 36(2)(aa) of the Act and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal, there was a real risk that the appellant would suffer significant harm if he returned to Iran.

PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

15    By application filed on 13 April 2015, the appellant sought judicial review of the Tribunal’s decision. He subsequently filed an amended application raising fifteen grounds of review (the Amended Application) on which he relied at the hearing before the primary judge.

16    On 19 October 2015 the primary judge gave judgment and made orders dismissing the Amended Application. The findings of the primary judge are summarised below:

(1)    in relation to grounds one and two, by which the appellant challenged the Tribunal’s findings concerning his claim that he was required to report to the Basij weekly and then fortnightly from 2010 until the time he left Iran, the primary judge rejected the appellant’s submission that the Tribunal’s conclusion that the reporting requirements were for less than two years was not based on any evidence. His Honour found that it was clear that the appellant gave evidence about the reporting conditions and that it was open to the Tribunal to accept or reject his credibility on that issue. His Honour held that there was a rational basis for the Tribunal to express its concern in relation to the continuation of the reporting period and that it was a matter for the Tribunal to accept or reject country information which may have been contrary to its finding;

(2)    in relation to ground three, by which the appellant alleged that the Tribunal’s finding that he had not been as severely mistreated as he claimed following the incident at his daughter’s school was not open, the primary judge held that the Tribunal rejected the appellant’s evidence about the incident and that it was a matter for the Tribunal whether to accept that evidence. His Honour said that the Tribunal’s adverse finding at [20] of its decision record did not lack an evident and intelligent justification and rejected the submission that the Tribunal failed to take into account relevant country information. His Honour went on to note that the issue of lack of proportionality in the levels of law enforcement was a matter for the Tribunal and rejected the proposition that the finding was arbitrary;

(3)    in relation to grounds four and five, by which the appellant alleged that the Tribunal’s finding that he was not of ongoing interest to the authorities because if he was he would not have visited the passport office and he would not be able to leave the country using his own passport failed to take into account aspects of the appellant’s evidence, the primary judge held that it was a matter for the Tribunal whether to accept the appellant’s evidence and that of his wife about the appellant’s ongoing interest to the Basij. The primary judge noted that these grounds raised the adverse findings made by the Tribunal at [24], [25] and [27] of its decision record and held that those findings were open to the Tribunal on the material before it;

(4)    in relation to ground six, that there was no evidence for the conclusion reached by the Tribunal at [27] of its decision record that it was not plausible for the appellant to have secured release of the bond on his apartment in order to flee Iran, the primary judge found that this issue was the subject of examination by the Tribunal and that the finding was open to the Tribunal. It was not a case where there was no evidence to support the adverse finding made by the Tribunal;

(5)    in relation to ground seven, by which the appellant alleged that the Tribunal had impermissibly taken into account reasons others may have had for leaving the country when there was no such evidence, the primary judge held that, on a fair reading, the Tribunal was identifying what had been put to the appellant in the context of whether he had a genuine fear of persecution and that it was a matter for the Tribunal whether it accepted the appellant’s evidence on that issue;

(6)    in relation to grounds eight to thirteen, which relate to the Tribunal’s findings concerning the appellant’s claim that he had converted to Christianity, the primary judge noted that the Tribunal’s reasons are to be read as a whole and without a keen eye for error. His Honour held that, on a fair reading of the relevant paragraphs of the Tribunal’s decision record at [35] to [38], it was clear that the Tribunal correctly addressed the relevant question about whether the appellant’s conversion to Christianity was genuine in the context of the ultimate finding which the Tribunal made at [60] that the appellant did not have a well-founded fear of persecution for a convention reason. His Honour also referred to the appellant’s reliance on Tisdall v Webber [2011] FCAFC 76 and held that the adverse findings made by the Tribunal were not based on speculation, guesswork or mere assumption and it was clear that they were open to the Tribunal. His Honour held that it could not be said that the rejection by the Tribunal of the appellant’s claims lacked an evident and intelligible justification;

(7)    in relation to ground fourteen, by which the appellant claimed that in rejecting the appellant’s wife’s Christian beliefs the Tribunal ignored relevant material and failed to take into account relevant evidence, the primary judge held that the assertion that the Tribunal failed to take into account relevant information was not made out and that it was open to the Tribunal whether to accept the appellant’s evidence concerning the claim about his wife’s conversion to Christianity. His Honour held that no relevant material was ignored; and

(8)    in relation to ground fifteen, by which the appellant alleged that in rejecting his claims cumulatively the Tribunal merely considered the cumulative claims in a formalistic way rather than giving serious consideration to those claims, the primary judge noted that the Tribunal had carefully set out and addressed the appellant’s claims severally before dealing with a cumulative assessment at [60] of its decision record. His Honour held that there must be a genuine intellectual engagement with the assessment of the claims cumulatively but that, in light of the cumulative assessment of claims identified in the reasons, he was not satisfied that there was any jurisdictional error of the kind alleged.

THE NOTICE OF APPEAL

17    By notice of appeal filed on 2 November 2015 the appellant appeals from the judgment given and orders made in ALC15. He advances seven grounds of appeal as follows:

1.    In relation to Ground 6 of the Application, (dealt with in paragraphs 23- 25 of his judgment), His Honour ought to have found that failure by the Refugee Review Tribunal (hereafter 'the Tribunal') to put any questions to the Applicant on a critical issue and to then to make adverse findings about that matter constitutes jurisdictional error.

2.    Further, or in the alternative, in relation to Ground 6 of the Application, His Honour failed to provide adequate reasons for rejecting the argument that failure by the Tribunal to put a matter to the Applicant on a critical issue and to then to make adverse findings about that matter constitutes jurisdictional error.

3.    In relation to Ground 7 of the application, the judge erred (in paragraph 27 of his judgment) in finding that it was open to the Tribunal to have regard to the fact that there were many persons leaving Iran at the time the Applicant left, in search of economic opportunity, in concluding that this was a reason the Applicant left Iran. His Honour referred to the questions put to the Applicant by the RRT but failed to take into account that at paragraph 27 of the Tribunal decision the decision-maker states that this "is the third reason" that he concludes that the Applicant was not of continuing interest to the Basij. The fact that other people were leaving Iran at that time was an irrelevant matter that should not have been taken into account by the Tribunal in reaching a conclusion as to whether or not the Applicant was of interest to the Basij or was in danger, unless there was evidence that the Applicant was leaving for this reason, which there was not.

4.    In relation to Grounds 8-13 of the Application, the judge erred in finding, (at paragraphs 28- 31 of his judgment), that it was open to the Tribunal to reject the Applicant's claim that he had converted to Christianity because his newfound religion was alleged, concluded or surmised to be "temporary therapy," "accessible therapy" or that he converted because he was "depressed" at the time of his conversion. In doing so His Honour failed to properly consider whether the Tribunal has misdirected itself and failed to consider the evidence in deciding whether Applicant had converted to Christianity and faces a real chance of being persecuted for reasons of religion if forced to return to Iran.

5.    Further, or in the alternative, the Federal Circuit Court ought to have found that the Tribunal failed to adequately consider the question of whether, given that, as was accepted, he appears to be actively practicing his faith in Australia, there was a real chance that the Applicant would be persecuted if forced to return to Iran because the authorities in Iran would impute Christian beliefs to him and a conversion from Islam to Christianity.

6.    Further, or in the alternative, His Honour failed, (at paragraph 30 of his judgment), to provide adequate reasons for rejecting the argument of the Applicant that the Tribunal ought to have accepted that there was a real chance of it being imputed in Iran that the Applicant had converted to Christianity.

7.    In relation to Ground 15 of the Application, His Honour erred in finding (at paragraphs 35-37 of his judgment), that the cumulative claim of the Applicant was properly considered (at paragraph 60 of the Tribunal's decision). The Court ought to have found that there was a failure by the Tribunal to properly consider the cumulative claim, both because of the improper assessments of the integers of the claim as made and also on the basis of the findings the RRT did make and matters it did accept.

PRELIMINARY ISSUES

18    Two preliminary issues arose between the appellant and the Minister.

19    Firstly, the Minister contended that ground one in the notice of appeal had not been raised below and that the appellant would require leave to rely on ground one in this Court. Counsel for the appellant, who appeared before the primary judge, submitted that ground one in the form now put and outlined in the appellant’s submissions had been raised below.

20    Secondly, on 5 February 2016 the Minister filed a notice of contention relevant to ground one of the notice of appeal which he sought to rely on in the event that leave was granted to the appellant to rely on that ground. In the notice of contention the Minister contends that the judgment in ALC15 should be affirmed on grounds other than those relied on by the Federal Circuit Court, namely:

That the Second Respondent was not obliged to put to the Appellant that it was implausible that he should have terminated his rent contract and recovered his bond before he left Iran if he had been subject to the immediate threat of harm he claimed had precipitated his decision to leave.

21    The notice of contention was not filed within the time required by the Federal Court Rules 2011: see r 36.24. The Minister thus requires leave to file the notice of contention outside the 21 day period prescribed by the rules.

22    During the course of the hearing the parties agreed to resolve these issues by consent by the making of the following orders:

(1)    leave be granted to the appellant to raise the argument at [1] to [18] of his written submissions under the rubric of notice of appeal ground one; and

(2)    leave be granted to the Minister to rely upon the notice of contention filed on 5 February 2016.

23    The hearing of the appeal proceeded on the basis of the consent orders.

CONSIDERATION

Ground 1

24    This ground relates to ground six of the Amended Application which was in the following terms:

There is no evidence for the conclusion contained in paragraph 27 that it was not plausible for the Applicant to have secured release of the bond on the apartment he and his wife shared in order to flee Iran. This is mere conjecture, unsupported by any evidence. It was not put to the Applicant by the decision-maker during the hearing that it was implausible that he would be able to recover his bond between 14 May 2012 (when the argument with the Basij occurred and he stopped staying at his home) and when he left Iran on 23 May 2012. The decision-maker had no information that he made known to the Applicant that could suggest this was implausible and sought no information during the hearing as to whether it was a private or public landlord, what the procedures were to recover a bond, how long it might usually take or any other similar information. The Applicant had no opportunity to respond to this adverse conclusion, which was a matter of credibility.

25    The appellant alleges that there was no evidence based on which the Tribunal could reach its conclusion that it was implausible for the appellant to recover his bond and that the Tribunal failed to put any questions to him on that critical issue, namely, that it was implausible that he would be able to recover his bond on his apartment between 14 May 2012, when the incident with the Basij occurred, and 23 May 2012, when he left Iran, if he was of ongoing interest to the Basij at that time. The appellant contends that the primary judge ought to have found that the Tribunal’s failure to put any questions to the appellant on that issue and to then make adverse findings on it was a jurisdictional error.

26    The appellant submits that in failing to put any questions to him on this issue, the Tribunal failed to comply with s 425(1) of the Migration Act 1958 (Cth) (the Act). The appellant relies on the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [44] and [46] to [47] where the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) stated:

[44]    The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.

…

[46]    Three further general points should be made.

[47]    First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

27    The appellant contends that there was a failure to afford him procedural fairness because the Tribunal failed to ask him to expand upon the issue relating to return of the bond and failed to ask the appellant why his account should be accepted. The appellant submits that there was no indication given to him by the Tribunal that his account of recovering the bond and using it to flee Iran was in doubt or that there was a concern over how he could have recovered the bond in a short time and that there was a failure to alert the appellant to the fact that this was an issue. In the appellant’s submission it was not sufficient that the delegate had said that all of the appellant’s claims were rejected. There was a requirement that the Tribunal bring the matter to his attention.

28    The starting point to consider this ground is [27] of the Tribunal’s decision record. Before doing so it is instructive to understand the structure of the Tribunal’s decision.

29    At [9] of its decision record, the Tribunal referred to the appellant’s irregular maritime arrival interview on 11 September 2012 and itemised the claims made at that interview:

(1)    in 2009 he was arrested for 15 to 20 days then sent to Evin prison for 4 months and given a suspended sentence of 10 years. If he was arrested again for the same or any other reason he would be put in prison for the 10 years. He was subject to reporting conditions on release;

(2)    the February 2011 Basij letter to his daughter’s school;

(3)    the 10 May 2012 incident at his daughter’s school (discussed by the Tribunal as the 14 May 2012 incident);

(4)    the aftermath of the May 2012 incident at his daughter’s school.

The Tribunal considered each of those claims in turn as well as the claims made in the written statement accompanying the Visa application and in submissions provided by the appellant’s migration agent.

30    Paragraph 27 is in that part of the Tribunal’s decision addressing the appellant’s “flight” from the incident at his daughter’s school in May 2012 or as described by the Tribunal at [9] of its decision record as the “aftermath”. There the Tribunal summarises the appellant’s evidence about what occurred after the incident. Despite its concerns with the appellant’s evidence, at [21] the Tribunal found that it was prepared to accept that the appellant became involved in a dispute with the school Basij over a change in the school rules. The Tribunal then turned to considering the appellant’s flight from the incident and the evidence he gave about that and the events which followed. At [26] and [27] of its decision record the Tribunal said:

26.    Next, the applicant said his wife went to live with her own mother after the applicant left Iran. This was at the time of the school holidays and she had stayed there for a few months prior to returning to their former suburb in Iran. The wife then rented another property in the same suburb in Tehran (where the applicant had formerly lived) and obtained work as a hair dresser. She was visited on one occasion about 6 or 7 months after the applicant departed Iran and the Basij said as her husband had been away for 6 months he could propose marriage. The applicant agrees this was not legally correct but that none-the-less the threat was made.

27.    The reason I do not accept the wife was visited as claimed, is that I do not accept the applicant was of any ongoing interest to the Basij at that time. That is because, prior to departing Iran, the applicant was able to terminate his rent contract and recover his bond. He agreed that he used the bond money to pay for his travel to Australia. The applicant’s furniture was then arranged to be given to the wife’s sister. The Tribunal does not accept it plausible the applicant would have the time to arrange his affairs in this way if he was subject to the immediate harm he claimed. … I am satisfied he departed Iran legally (on a passport in his own name) on 23 May 2012, as he was no longer of any adverse interest to anyone in Iran.

31    The transcript of the hearing before the Tribunal, which was before the primary judge and is included in the appeal book, includes the following exchange about the rental bond:

Member Norman:    You recovered your bond to assist you to travel to buy your travel fares out of Iran and your wife moved into your mother-in-law’s house. Is that correct?

Interpreter:    Yes, In Karaj.

Member Norman:    Yes, in her mother’s or your mother’s home?

Interpreter:    Her mother’s. She put, you know, all our stuff in her sister’s house and she went to Karaj, because at that time it was school holidays.

Member Norman:    How long did she live in Karaj?

Interpreter:    Three or four months later because they didn’t give my daughter, you know, school (indistinct) so they can have access to me through that. So she had to go back to the same area, the same school and my daughter had to wear a chador to go to school.

Member Norman:    So why didn’t your – your wife and your daughter was not allowed to remain living with your wife’s mother?

Interpreter:    Because of my daughter’s enrolment and my daughter’s enrolment, because if she wanted to enrol my daughter in another school, they need her, you know, education file and the school didn’t give it to them.

Member Norman:    So the school actually has allowed your daughter to go back and attend that school?

Interpreter:    I’m sorry, I didn’t understand.

Member Norman:    My apologies. So the school that you fled from is the same school that now teaches your daughter.

Interpreter:    Yes.

Member Norman:    Okay. Now, when you got the bond from your rented apartment, did you use that for your travel to get out of Tehran?

Interpreter:    Yes.

Member Norman:    How much did it cost you to travel out of Tehran?

Interpreter:    Around (indistinct) to $6000, 5000.

Member Norman:    That’s US dollars?

Witness:    Yes.

32    The appellant submits that in failing to ask questions beyond those recorded in the transcript and in failing to put the appellant on notice that the return of the bond was a “live issue” the Tribunal failed to comply with s 425(1) of the Act. That section requires the Tribunal to invite an applicant to appear before it and give evidence and present arguments relating to the issues arising in relation to the decision under review. It applies when the Tribunal cannot decide the matter in favour of an applicant based on the material before it.

33    The appellant relies on the judgement in SZBEL in which the High Court considered the operation of s 425(1). In that matter an Iranian citizen employed as a seaman on an Iranian vessel jumped ship when his ship was docked in Port Kembla. Ten days later he applied for a protection visa and provided a statutory declaration in support of his application in which he said he feared for his safety because the captain of his ship knew of his interest in Christianity. A delegate of the Minister refused to grant the applicant a protection visa and he sought review of the decision by the then Refugee Review Tribunal. The Tribunal wrote to the applicant telling him it was unable to make a decision in his favour on the information he had provided and invited him to appear before it to give evidence and present arguments which the applicant did. At the hearing the Tribunal member asked the applicant questions that elicited from him the same description of events that he had provided in his statutory declaration. The Tribunal did not challenge what the applicant said, express any reaction to what he said or invite him to amplify any of the three aspects of the account he had given in his statutory declaration and repeated in his evidence which the Tribunal later found to be implausible. Those three aspects were:

(1)    a description by the applicant of returning to his home for medical treatment in February 2001, meeting four of his friends and telling them what he had learnt about Christianity. The applicant said that his friends were disturbed by what he told them and that a few days later he began to receive threatening telephone calls at home accusing him of apostasy;

(2)    after he had returned to his ship on 9 March 2001, some weeks after it had sailed, he was called before the captain who had heard about the rumours circulating in his home town and who demanded to know why the applicant was behaving like a deviant, whether the rumours were true and whether he was a Christian. The applicant said that one of the other crew members had informed the captain of the ostracism he had experienced in his home town; and

(3)    the applicant’s account of his visit to a doctor in Port Kembla on 6 April 2001. He had requested permission to seek medical attention and believed that the captain of the ship allowed him to do so out of fear that he may die on board the ship and therefore become his responsibility. He knew he had to find a way off the ship as he was petrified that he would be dead by the time the ship returned to Iran.

34    At [33] the High Court recognised that the Act “defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’”. The Court then continued at [34] and [35]:

34.    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

35.    The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

35    At [36] of SZBEL the High Court noted that the Tribunal is not obliged to invite an applicant to appear before it if it is going to decide the application in the applicant’s favour. Thus it said the Tribunal’s interview of an applicant will proceed on the basis that it knows that it is not persuaded by the material before it to decide the review in the applicant’s favour. The Court said that “lack of persuasion may be based on particular questions the Tribunal has about particular aspects of the material already before it” or it may be based on “nothing more than a … general unease about the veracity of” the material. But “unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision”.

36    In the case of the appellant, the delegate found at page 5 of its decision that he did not present as a credible witness and discounted “all of his material claims as not credible” for reasons that were then provided. The claims were those relating to the 2009 protests and his subsequent detention, those relating to his daughter’s school and those relating to his conversion to Christianity. That is the delegate did not accept any of the appellant’s claims. The Tribunal refers to the delegate’s findings at [44] of its decision record.

37    The Tribunal, at [7] of its decision record, identified that the issue in the case was principally that the appellant “fears harm in Iran for incidents that allegedly caused him to flee Iran and for reason of converting to Christianity”. The Tribunal referred to the appellant’s claims and dealt with each of those claims in turn.

38    The return of the rental bond was not an issue arising in relation to the decision under review. The relevant issue that concerned the Tribunal was the appellant’s claims about his flight from his daughter’s school after the May 2012 incident, including his departure from Iran, and, in that context, whether the appellant was of any ongoing interest to the Basij after that incident. The return of the rental bond was part of the evidence considered by the Tribunal in relation to that issue.

39    At the hearing, as can be seen from the transcript, the Tribunal asked the appellant about the return of the rental bond and for what purpose that money was used. That evidence was included at [27] of the Tribunal’s decision record. The Tribunal’s conclusion at [28] was that it was not satisfied that the appellant was of any ongoing adverse interest to the Iranian authorities or anyone else immediately prior to his departure from Iran. That conclusion was based on the evidence given by the appellant including the evidence about the return of the rental bond.

40    The Tribunal was not obliged to put anything further to the appellant in relation to that matter. That matter was, as submitted by the Minister, in the nature of thought processes. As the High Court noted in SZBEL at [48]:

… Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

41    In my opinion the primary judge ought not to have found that the failure by the Tribunal to put any questions to the appellant about the rental bond and to then make adverse findings about that matter constituted a jurisdictional error. Ground 1 of the appeal should be dismissed.

42    Given my conclusion, the Minister’s notice of contention does not arise for consideration.

Ground 3

43    By this ground the appellant takes issue with the Tribunal’s decision record at [27] where the Tribunal found that:

… As put to the applicant at the Tribunal hearing, it was apparent that many persons in Iran were travelling to Australia at the time and I may consider whether he was simply seeking (for instance) economic opportunity. The applicant rejected this as untrue. However, this is the third reason that has satisfied me the applicant was not subject to any ongoing dispute with the Basij at this time. I am satisfied he departed Iran legally (on a passport in his own name) on 23 May 2012, as he was no longer of any adverse interest to anyone in Iran.

44    The appellant contends that the primary judge erred in finding that it was open to the Tribunal to have regard to the fact that there were many people leaving Iran in search of economic opportunity at the time the appellant left and in concluding that this was a reason the appellant left Iran.

45    The appellant submits that:

(1)    the question of whether other people, apart from him, were leaving Iran at a particular time was irrelevant and ought not to be taken into account by a decision maker unless there was evidence that the appellant was influenced by that matter. The appellant submits that there was no such evidence in this case; and

(2)    whether other people were leaving Iran at the same time is not logically probative of whether the appellant fled Iran for Convention related reasons and thus the Tribunal’s reliance on that matter shows that the Tribunal misconceived the test it had to apply. The correct question for the decision maker is to ask why the appellant fled Iran.

46    The appellant relies on the statement of principle in the judgment of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where Deane J said at 367:

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality" (cf. the C.C.S.U. Case, at p 410). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

47    The appellant also relies on the judgment in FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 (FTZK). That matter concerned a Chinese national who entered Australia in February 1997 on a temporary business subclass 456 visa and who was subsequently granted a bridging visa. After he entered Australia he was implicated in the crimes of kidnap and murder which were the subject of criminal charges in China. His two co-accused were executed in May 1998. A copy of an arrest warrant issued by the Chinese authorities was subsequently received by the Australian Federal Police. FTZK applied for a protection visa which was refused. The Refugee Review Tribunal (as it then was) affirmed the delegate’s decision in 1999. On expiration of his bridging visa FTZK was in Australia as an unlawful non-citizen. In February 2004 he was located and placed in immigration detention. He was subsequently informed of the arrest warrant and filed applications in the High Court seeking judicial review of the Tribunal’s 1999 decision and an injunction restraining his removal from Australia. There were then numerous proceedings before the matter returned to the High Court.

48    The appeal before the High Court was from a decision of a Full Federal Court and concerned the construction of Art 1F(b) of the Refugees Convention which relevantly excluded application of the Convention to any person with respect to whom there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee.

49    The appeal was allowed with all members of the Court holding that the Full Federal Court should have found that the Tribunal committed a jurisdictional error. In their joint judgment Crennan and Bell JJ held that was so because the Tribunal failed to address the issue of whether there was probative evidence before it to conclude that there were “serious reasons” for concluding that FTZK had committed the alleged crimes. The appellants rely on what their Honours said at [90]:

90.    The Tribunal's reasons cannot be equated with a total failure to give reasons, as considered by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme. Nevertheless, empowering legislation can show that a tribunal's identification of what it considered to be relevant matters may demonstrate that it asked itself the wrong question, as explained in Minister for Immigration and Multicultural Affairs v Yusuf. Equally, it may demonstrate that a tribunal has misconstrued its functions and powers to decide, by taking into account matters which are irrelevant given the language of the empowering provision and the scope and purpose of the whole Act. Either form of error requires the impugned decision to be set aside.

(footnotes omitted)

50    Crennan and Bell JJ also said at [91], [94] and [96]:

91.    Here, the Tribunal took into account (and treated as determinative) the timing of the appellant's departure from the PRC, lies told by the appellant both to obtain a visa and to obtain protection under the Convention, and the appellant's conduct in escaping from detention and living in Australia unlawfully. An equally probable explanation for all of these matters is a desire on the part of the appellant to live in Australia. That desire is not unique to the appellant, particularly as he has been found to fall within Art 1A(2) of the Convention. A correct application of Art 1F(b) to the facts required the Tribunal to ask of the evidence before it whether that evidence was probative of "serious reasons for considering" that the appellant had committed one or more of the alleged crimes.

…

94.    As to the relevancy ground, undoubtedly the language of Art 1F(b) and the scope and purpose of the Act obliged the Tribunal not to rely on irrelevant considerations when considering whether there were "serious reasons for considering" that the appellant (who qualified for protection under Art 1A(2)) had committed the alleged crimes before entering Australia. The appellant's submission on relevancy depended critically on the Tribunal's finding that the transcripts of the alleged co‑accused were insufficient to persuade the Tribunal that there were "serious reasons for considering" that the appellant had committed those crimes.

…

96.    The Tribunal was bound to consider whether the matters it relied upon, in addition to the transcripts – which it said were insufficient – were probative of "serious reasons for considering" that the appellant had committed one or more of the alleged crimes. As already demonstrated, the Tribunal's path to its conclusion in that respect was flawed.

(footnotes omitted)

51    Here the Tribunal in considering whether the appellant was of continuing interest to the Basij after the May 2012 incident took into account three matters. Those matters were raised with the appellant at the hearing. The appellant denied that he left Iran for economic reasons as the Tribunal has recorded at [27] of its decision record. Implicit in the finding made by the Tribunal is a rejection of that denial. The appellant says that it was that matter, that many people were leaving Iran for economic reasons, that was irrelevant and that shows that the Tribunal asked itself the wrong question. I do not agree. The Tribunal considered the circumstances of the appellant in considering whether he was of ongoing interest to the Basij at the time he left Iran. It concluded that he was not for a number of reasons and not just because others were leaving Iran at the same time for economic reasons. In the context of the question that was being considered, what others were doing at the time was not an irrelevant consideration.

52    The appellant also relies on the judgment of Collier J in Khanam v Minister for Immigration and Citizenship [2009] FCA 966 (Khanam) but the circumstances in that matter are different to those of the appellant. That matter concerned a male national of Pakistan who was an Ahmadi Muslim and who had applied for a visitor’s visa which was refused by a delegate of the Minister. The mother of the visa applicant applied to the Tribunal for review. The Tribunal affirmed the decision of the delegate. It was not satisfied that the family, business and religious reasons for the visa applicant to return to Pakistan were sufficiently strong to outweigh the likelihood that, because of the risks he faces daily as an Ahmadi Muslim and the fact that his parents now reside in Australia, he would seek to remain permanently in Australia. The visa applicant was unsuccessful in his appeal to the Federal Circuit Court and appealed to this Court. In allowing the appeal, Collier J summarised the reasoning of the Tribunal at [27] of her judgment as follows:

(1)    Ahmadi Muslims are persecuted in Pakistan and could claim asylum;

(2)    the visa applicant is an Ahmadi Muslim living in Pakistan

(3)    thus the visa applicant’s real motive in visiting Australia is to claim asylum and not genuinely to visit Australia as required by the relevant subclass of the regulations.

53    Her Honour said at [28] to [29] that:

28.    Notwithstanding the acknowledgement by the Tribunal that it is ultimately the intentions of the visa applicant which must be ascertained, the Tribunal formed its opinion based on its view of likely intentions of Ahmadi Muslims as a group in applying for subclass 679 visas rather than based on the circumstances of the visa applicant in this particular case. Indeed, reviewing the reasons of the Tribunal one might wonder whether any Ahmadi Muslim from Pakistan seeking to visit relatives in Australia would receive a subclass 679 visa. The reasons given by the Tribunal suggest not.

29.    In my view it follows that the decision of the Tribunal is liable to be set aside on the basis of jurisdictional defect, on two grounds:

•     First, the Tribunal failed to take into account a relevant consideration, namely the reasons given by the visa applicant and the appellant for the visa applicant to visit Australia and the visa applicant’s motive for doing so. The fact that the visa applicant was Ahmadi Muslim was also a relevant consideration, but not the only relevant consideration in determining this application.

•     Second, the Tribunal did not properly determine the application before it because in considering the application it asked itself the wrong question – namely “Is the visa applicant an Ahmadi Muslim from Pakistan?” The answer to that question, while obviously relevant in the circumstances, could not alone determine the application before the Tribunal. However a review of the decision of the Tribunal indicates that the answer to that question was in fact determinative of this particular application.

54    In my opinion, the consideration of the appellant’s circumstances by the Tribunal was quite different to the situation in Khanam. As I have already observed, it is not the case that the Tribunal, in considering the appellant’s claims, confined itself only to the issue of the motive of other people leaving Iran. The Tribunal considered the appellant’s particular circumstances and took into account the reasons given by the appellant. It also took into account the fact that people were leaving Iran for economic reasons. There was no error in the approach of the primary judge in relation to ground seven of the amended application.

Ground 4

55    Ground 4 relates to the Tribunal’s findings in relation to the appellant’s claim that he had converted to Christianity. The appellant alleges that the primary judge erred in finding that it was open to the Tribunal to reject the claim that he had converted to Christianity because his new found religion was alleged, concluded or surmised to be “temporary therapy” or that he converted because he was depressed.

56    The appellant submits that the Tribunal departed from the question it had to answer. The correct question was will the appellant be persecuted by reason of his religion if forced to return to Iran either because he has the beliefs or he would be imputed with the beliefs. In finding that it was not satisfied that the appellant’s conversion was genuine, because it was undertaken as a form of temporary therapy and for assistance and support, the Tribunal was looking at the future of the appellant’s claimed faith. The appellant alleges that the reason or finding that his conversion was not genuine was pure speculation. The appellant relies on the judgment in Tisdall v Webber (2011) 193 FCR 260 (Tisdall v Webber) at [128] where a Full Court of this Court said:

It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated. So far as the work of courts is concerned, where the application of a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork. The arbitrary selection of one possibility over others from an available number of possibilities by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn as matters of legitimate deduction, based on probative values.

57    The appellant also alleges that the Tribunal failed to consider the evidence relating to conversion.

58    The Tribunal addressed the appellant’s claims based on his conversion to Christianity at [29] to [38] of its decision record. The Tribunal referred to the claim made by the appellant and his evidence in support of the claim. At [33] of its decision record the Tribunal noted that at the hearing it informed the appellant that it would consider whether his religious practise was “something more approximating temporary therapy and whether his claimed conversion was genuine”. The Tribunal found that the appellant “knew a reasonable amount about Christianity” but that a detailed knowledge of the religion claimed to have been converted to “is not necessarily conclusive the alleged religious conversion is genuine” and that “[o]ther aspects of the applicant’s circumstances need to be taken into account”. At [35] of its decision record the Tribunal found that the reason it was not satisfied that the appellant’s conversion to Christianity was genuine was because it “was not satisfied that it was undertaken for any reason other than as a form of temporary therapy (and for assistance and support)”.

59    Firstly it cannot be said that the Tribunal failed to consider the evidence before it. It made a finding based on the evidence before it, including evidence taken from witnesses called by the appellant, and its conclusions were open to it on the evidence.

60    Secondly it is not the case that the Tribunal departed from the question it had to answer. The question for the Tribunal is framed by reference to s 36(2)(a) of the Act which relevantly provides that a criterion for a protection visa is that an applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee. That is, in the case of a person who has a nationality, he or she is outside his or her country and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country. The exercise is predictive in nature. As a Full Court of this Court (Kenny, Griffiths and Mortimer JJ) said in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) of the criterion in s 36(2)(a) of the Act at [33]:

The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.

61    The question in the context of the appellant’s claimed conversion to Christianity was what would happen to the appellant as a result of his claimed conversion to Christianity if he were to return to Iran. In that context, the Minister submits and, I accept, that the Tribunal identified two subsidiary questions for consideration:

(1)    Would the appellant continue to be a Christian on his return to Iran such that the authorities or others might find out and persecute him as an apostate?

(2)    Even if the appellant did revert to Islam on his return to Iran would the authorities or others discover evidence of his conversion to Christianity in Australia and persecute him because of that?

62    The Tribunal answered both of these questions in the negative. It did so by drawing inferences from the appellant’s evidence and country information. It also brought its own experience to bear. The Tribunal did not engage in “speculation, guesswork or mere assumption”. It did not fall foul of the principle identified in Tisdall v Webber set out above.

63    Further, it is relevant to note, in the context of this ground, that in making its findings the Tribunal is entitled to rely on matters of its own specialised knowledge and experience: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [7], [12] (Gleeson CJ), [116] (McHugh J), [263] (Hayne J) and [300] (Callinan J).

64    There was no error in the approach of the Tribunal in considering the appellant’s claims concerning his conversion to Christianity and no error in the approach of the primary judge. Ground 4 of the notice of appeal is not made out.

Ground 5

65    By ground 5 the appellant alleges that the primary judge ought to have found that the Tribunal failed to properly consider the question of whether there was a real chance that the appellant would be persecuted if he was forced to return to Iran because the authorities in Iran would impute Christian beliefs to him and a conversion to Christianity. In oral submissions counsel for the appellant clarified that the appellant’s complaint was that the Tribunal failed to properly consider the claim.

66    The Tribunal deals with this claim at [36], [46] and [49] to [50] of its decision record as follows:

36.    Next, the applicant said he spoke to his extended family in Tehran approximately once per month. He said his relationship with them had been (words to the effect) ‘frosty’ after he told them he had converted to Christianity. He conceded he did not tell anyone other than close family members. As I am positively satisfied the applicant’s Christian conversion is not genuine (in that it is a temporary measure that allows for assistance to be provided to the applicant in his present circumstance), I do not accept the applicant told close family members he had genuinely converted to Christianity. If he did mention his Christian practise, I am not satisfied it was for reason of alleging any genuine conversion. This conclusion is also based in part, on my satisfaction the applicant understands it is not safe in Iran to make this claim; either for himself or his family (also see below discussion). Further, and based on the accepted claims and the country information in the sources cited herein, I am not satisfied the applicant has a real chance of being imputed with having converted to Christianity.

…

46.    On 21 January 2014, the applicant sought merits review by the Refugee Review tribunal.

The Tribunal makes the following findings:

•     After discussing his claims at hearing, and considering his evidence, the Tribunal is satisfied the applicant is a national of Iran as claimed. I therefore accept that Iran is the applicant’s country of reference for the purpose of assessing refugee protection claims; and his receiving country for the purpose of assessing complementary protection claims.

…

•     For the reasons set out above, the Tribunal is not satisfied that the applicant is a genuine Christian convert; or that he would be imputed with having converted, should he return to Iran.

…

49.    At hearing, the applicant explained that he first lodged messages on Facebook in May 2013 (2 or 3 months after being baptised). However, he shortly thereafter changed his Facebook name to Peter Masihi (or similar). The applicant thus understood that such posts may be dangerous for his family in Tehran. The applicant said he commenced his Facebook account shortly after his arrival in Australia and he changed his Facebook name around January 2014. No corroborating evidence was lodged to support the date of the name change.

50.    Be that as it may, even assuming the applicant posted Christian material on a Facebook account in his own name, none of the daily conversations he claimed to have with his wife, or the monthly conversations he had with his extended family in Tehran, suggested any of them had ever been questioned about these posts. In the circumstances, I am not satisfied the applicant’s posting Christian messages on his Facebook page, whether in his actual name or his (chosen) Facebook name (which is not known to the Iran authorities), would give rise to a real chance of him being harmed in Iran.

(emphasis added)

67    The appellant relies on the judgment in MZYTS at [52] to [71] which he says addresses the question of the identification of material facts. In that matter, a Full Court of this Court considered whether the Tribunal had dealt with the applicant’s claim as it had been advanced before it. It concluded that it had not and that the Federal Magistrate was correct to find that the Tribunal had not considered the claim in the way advanced by the applicant. The discussion at [52] to [71] which the appellant describes as helpful considers the issue of whether the Tribunal’s reasons identified the material questions of fact necessary for it to address the claims made by the applicant. At [52] the Court said in the circumstances of the particular claim if the material had been considered one could expect it would be referred to even if it were rejected. At [62] the Court set out its conclusion on that issue as follows:

As we have set out above, the visa applicant’s claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant’s claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review.

68    The Court in MZYTS then went on to consider whether the error was jurisdictional and concluded that it was because the Tribunal failed substantively to perform its statutory task: at [63]. It failed to consider the applicant’s claim that the risk to him on return to Zimbabwe from early 2011 had increased because of the election cycle and consequent political violence, together with his status as an actual or perceived MDC supporter: at [65] to [66].

69    The appellant’s complaint here is that the Tribunal failed to properly consider his claim of having imputed to him that he converted to Christianity not that it did not consider the claim in the way advanced as was the case in MZYTS. In oral submissions counsel for the appellant said that this was because there was no discussion of the evidence concerning the appellant’s Facebook posts in connection with any finding about whether he would be imputed with Christian beliefs if he returned to Iran. But the Tribunal did consider the evidence relating to the Facebook posts as well as other evidence concerning his conversion to Christianity.

70    Unlike in MZYTS, the evidence relating to the Facebook posts is referred to and considered by the Tribunal. At [50] of it decision record the Tribunal concluded that it was “not satisfied the [appellant’s] posting Christian messages on his Facebook page, whether in his actual name or his (chosen) Facebook name (which is not known to the Iranian authorities), would give rise to a real chance of him being harmed in Iran”. While that evidence was discussed after the finding at [46] that the appellant would not be imputed with having converted to Christianity, when the decision is read as a whole, in my opinion, it is the case that its consideration of the Facebook posts was concerned with and relevant to the issue of imputation of conversion. That is further evidenced by the reference at [36] of the decision record to the “below discussion” which can only be a reference to the discussion at [48] to [49] under the heading “The Facebook posts”.

71    Ground 5 is not made out.

Ground 7

72    By ground 7 the appellant says that the primary judge erred because he found that the appellant’s cumulative claim was properly considered by the Tribunal.

73    The Tribunal considered the cumulative effect of the appellant’s claims at [60] of its decision record. It did so having considered each of the claims individually. At [60] of its decision record the Tribunal finds:

I have had regard to all the evidence and submissions, but even after considering the accepted claims cumulatively, I remain satisfied the applicant does not have a real chance of suffering serious harm in Iran.

74    As the primary judge observed the Tribunal has to properly engage with the consideration of an applicant’s claims cumulatively. The appellant says that did not occur and was evidenced by the fact that the Tribunal disposed of the issue in three lines and in circumstances where the Tribunal had in fact accepted some of his claims. I do not agree. The Tribunal carefully considered each of the appellant’s claims individually. While there was an obligation to properly engage with a consideration of those claims cumulatively, the Tribunal did not then need to summarise each of its individual findings as part of doing so. The Tribunal had to weigh and consider the claims cumulatively and make a finding, which it did.

75    Ground 7 is not made out.

Grounds 2 and 6

76    These grounds raise the same issue namely whether the primary judge provided adequate reasons, in the case of ground 2, in relation to ground 6 of the Amended Application, and in the case of ground 6, in rejecting the argument that the Tribunal ought to have accepted that there was a real chance of it being imputed in Iran that the appellant had converted to Christianity. The primary judge dealt with ground 6 of the Amended Application at [23] to [25] of his judgment and the grounds concerning the appellant’s conversion to Christianity at [28] to [31] of his judgment.

77    In support of both grounds the appellant has referred me to the judgment in Islam v Cash [2015] FCA 815 (Islam) at [14], and the cases cited therein, where Flick J said:

Such consideration as is given to those matters, it is to be recognised at the outset, must be a consideration in accordance with law. Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision-maker must give more than mere “lip service” to a relevant consideration: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:

“[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...”

…

78    Islam was concerned with a decision made by the Assistant Minister for Immigration and Border Protection and his Honour’s comments at [14] and the cases cited therein relate to the nature of the consideration to be given by an administrative decision maker in considering those matters prescribed by relevant legislation, in that case s 501 of the Act. Grounds 2 and 6 of the notice of appeal are limited to the reasons given by the primary judge. The judgment in Islam is not concerned with the issue of whether reasons given by a Court are sufficient or adequate and does not provide any assistance in determining that matter in the context of this appeal.

79    In his written submissions in relation to ground 2 the appellant refers to SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 (Flick J) which he submits highlights the fact that adverse credit findings are not immune from examination as to whether jurisdictional error is involved. The appellant relies on [23] of the judgment where Flick J refers to SZSRV v Minister for Immigration and Border Protection [2014] FCA 220 and notes that the basis upon which the Tribunal has made adverse findings, including adverse findings as to credit, must be adequately explained. But ground 2, as I have already observed, complains about the adequacy of reasons of the primary judge in exposing why he reached the conclusion that he did.

80    The judgment of the High Court in Public Service Board of NSW v Osmond (1986) 159 CLR 657, on which the appellant also relies, was concerned with the issue of whether the appellant in that case, an administrative body, was obliged to give reasons for its decision. But in the course of his judgment Gibbs CJ referred with approval to the principle in Pettitt v Dunkley [1971] NSWLR 376 that an obligation to give reasons lies upon any court, including an intermediate court of appeal, so far as it is necessary to enable the case to be “laid properly and sufficiently” before the higher appellate court and to the observation of Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 that the requirement to give reasons is an “incident of the judicial process” subject to the qualification that it is a normal but not universal incident: at 666-667.

81    There have been a number of judgments addressing the issue of adequacy of reasons. I refer to some of them below.

82     In City of Wanneroo v Holmes (1989) 30 IR 362; [1989] FCA 369 (City of Wanneroo), on which the Minster relies, French J, as his Honour then was, in the context of considering an appeal from an Industrial Magistrate, said the following about sufficiency of reasons at [32] to [33] and [36]:

32.     It is well established that a failure by a judge or magistrate to give any or adequate reasons for decision can amount to an error of law. Until recently judicial exposition of the duty rested largely upon the proposition that a failure to do so would encroach upon rights of appeal. This was the limiting criterion enunciated by Moffitt JA (with whom Manning JA agreed) in Pettitt v Dunkley (1971) 1 NSW LR 376 at 388:

I do not think there is any judicial duty to give reasons except so far as such duty can be related to a right of appeal.

The various authorities referred to in his Honour's reasons and the judgment of Asprey JA. in the same case, provided support for that view - see especially Carlson v R (1947) 64 WN (NSW) 65 (Jordan CJ) and generally De Iacovo v Lacanale [1957] VicRp 78; (1957) VR 553, 558-559 (Monahan J.). But in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247, the Court of Appeal did not accept that limitation on the duty. The right of appeal there arose only on a question of law, a circumstance regarded by Kirby P. as enhancing the judge's duty to set out, however briefly, reasons for decision. Mahoney JA repeated the view he had expressed in Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd (1983) 3 NSWLR 378 at 386 that the requirement was not confined to cases where there is an appeal and should be seen as an incident of the judicial process. That comment had been approved by the High Court in Public Service Board of NSW v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ, Wilson, Brennan and Dawson JJ agreeing) with the qualification that the requirement is "a normal but not a universal incident". The third member of the Court of Appeal in Soulemezis, McHugh JA, considered that the statement of reasons for a judicial decision serves at least three purposes:

1.     To provide the foundation for acceptability of the decision by the parties and the public.

2.     To further judicial accountability.

3.     To enable practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.

...

33.     The content of the duty will vary according to the circumstances of the case and in some cases reasons may not be necessary. As McHugh JA observed in Soulemezis (supra) at 279, neither the needs nor the appearance of justice require that reasons be given for every decision by a judicial tribunal. Many interlocutory matters, rulings on admissibility of evidence and the like, will not require explanation. …

    …

36.     One option open to the Court is simply to set aside the decisions and penalty and send the case back to the Industrial Magistrate for further hearing and determination subject to appropriate directions. Another would be to order a new trial. Each of those options would undoubtedly incur considerable additional expense for both parties. If the proper outcome can be determined without the need for a new trial then that is, in my opinion, the better course to follow. ...

83    In Carlisle Homes Pty Ltd v Barrett Property Group Ltd [2009] FCAFC 31 (Carlisle Homes), a Full Court of this Court (Tamberlin, Sundberg and Besanko JJ) observed at [40] to [41] that “a trial judge is under an obligation to give reasons for his or her decision” and that the rationale for the obligation had been discussed in a number of cases as had the nature and content of the duty. Their Honours referred to a number of the cases which had addressed the nature and content of the duty. They observed that the reasons of a trial judge will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based, or justice is not seen to have been done. Their Honours considered a number of authorities on the issue and at [45] referred to the judgment in Hunter v Transport Accident Commission (2005) 43 MVR 130 and said:

… With respect, his Honour’s analysis provides a helpful summary of what we think are the appropriate working principles. He said (at 136-137 [21]):

Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding [sic] are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

(citations omitted.)

84    The Full Court in Carlisle Homes also considered the consequences of a failure to provide adequate reasons. At [46] the Court said:

The consequences of a court or judge failing to provide adequate reasons have also been discussed in a number of cases. In Pettit v Dunkley, Asprey JA and Moffitt JA each referred (at 382 and 388 respectively) to a failure to give reasons as an error of law, and Moffitt JA said that such an error could vitiate the judgment even in cases where it did not appear whether or not the omission would have affected the result (see also Soulemezis v Dudley (Holdings) Pty Ltd at 281 per McHugh JA). In Palmer v Clarke (1989) 19 NSWLR 158, the New South Wales Court of Appeal set aside a trial judge’s orders because his reasons were inadequate. The Court did so even though the outcome of the case itself was not necessarily incorrect (at 163 per Kirby P (with whom Samuels JA agreed)); at 174 per Priestley JA). In Mifsud v Campbell, Samuels JA (at 728) and Hope A-JA (at 729) each reserved for further consideration the question whether a failure to give adequate reasons was an error of law or some other type of error. In Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264, the Full Court of this Court, although it found a failure on the part of a trial judge to give adequate reasons, did not make an order for a new trial. The Court in that case was able to see for itself, quite clearly, that the same result would necessarily be reached and that there would be no point in a new trial. We refer to the observations of the Court at 284. Meagher JA, in Beale v Government Insurance Office of NSW, said (at 444) that the Court could take such an approach in an appropriate case. In Hunter v Transport Accident Commission, the Court concluded that the trial judge had not provided adequate reasons. However, the Court did not remit the matter for rehearing, but, rather, decided the matter for itself. The Court said (at 143 [37]) that, there being no credit issue, the appeal Court was in as good a position to decide the matter as the trial judge.

85    In AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 (AMF15) a Full Court of this Court (Flick, Griffiths and Perry JJ) said at [48]:

It should be further noted that as a matter of substance no reasons were provided by the primary judge as to why he proceeded to dismiss the application. As earlier mentioned, the primary judge accepted the Minister’s submissions without more and concluded that, “The application is dismissed under rule 44.12” as he was clearly satisfied (without explanation) that the application failed to disclose any arguable jurisdictional error. Depending upon the facts of any given case, it may be that such reasons as are required to be given may be commendably brief. It may be that little more may be required than a statement as to the need to exercise caution before executing the power conferred by r 44.12 and a brief reference to the facts and the grounds of review relied upon. But some explanation, however brief, is required which exposes an awareness on the part of the judge exercising the power as to the manner in which legal principles have been applied to the facts of a given case. In the absence of reasons which comply with these minimum standards, this Court is severely hampered in discharging its appellate function. In the absence of explanation by the FCCA, the task of providing an applicant with an explanation as to why his judicial review case has been dismissed is impermissibly shifted from the FCCA to this Court. But it is not for this Court on appeal to discharge the functions which should be performed by the FCCA and which have been entrusted by the legislature to that Court.

86    Also of relevance to these grounds is s 28(1) of the Federal Court of Australia Act 1976 (Cth) which sets out what the Court can do in the exercise of its appellate jurisdiction and relevantly provides:

28.    Form of judgment on appeal

(1)    Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d)    set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;

…

87    There is an issue between the appellant and the respondent as to whether the argument raised by ground 1 of the notice of appeal was raised before the primary judge in the terms it is now raised. Before me, by consent, the appellant was given leave to rely on ground 1 in the form set out in his submissions. If the ground was argued before the primary judge in the way that it was argued before me then it is the case that the reasons given do not address that ground. The primary judge’s reasons address the ground as a no evidence ground. To the extent they do, while they are sparse and could have been more detailed, they are in my view sufficient to tell this Court something of why the primary judge reached the conclusion he did on the ground as he understood it.

88    Whether the ground was argued as now put in ground 1 of the notice of appeal is a matter which has not been resolved. The parties have not sought to tender any transcript of the hearing below or the written submissions that were before the primary judge. The parties rather took the pragmatic approach of proceeding on the basis of a consent order for leave to raise the ground. That being the case, there is insufficient material before me to determine if the ground was raised and if therefore the primary judge’s reasons are inadequate in that they simply fail to address the ground.

89    In relation to ground 6 the primary judge dealt with the grounds of appeal concerning the appellant’s conversion to Christianity in four paragraphs of his judgment and addresses the grounds as raised together. That may be because of the discursive way in which the grounds were pleaded and the manner in which the relevant paragraphs of the amended application seem to be linked to each other. The grounds that attack the Tribunal’s finding on imputed conversion are at [12] and [13] of the Amended Application and are as follows:

12.    To surmise that his conversion is merely “temporary therapy,” without evidence, is to impose a wrong and impermissible test, by attempting to predict the future depth and resilience of his conversion rather that (sic) asking the question whether he is likely to be persecuted if forced to return to Iran because of his conversion to Christianity or imputed conversion to Christianity.

13.    The decision maker implicitly accepts that the Applicant has converted to Christianity in dealing with the resilience of his new faith. He fails to apply the correct statutory test, namely whether the Applicant is reasonably likely to be persecuted for reasons of religion if forced to return to Iran and instead applies a different one, namely to ask how resilient his faith is likely to be in the future.

90    The primary judge referred to the Tribunal’s findings in relation to the appellant’s conversion to Christianity at [30] of his judgment and held that the Tribunal was addressing the relevant question in the context of its ultimate finding that the appellant did not have a well founded fear of persecution for a Convention reason should he be returned to Iran. The Minister submits that in that way the primary judge did address the predictive nature of the exercise the Tribunal undertook.

91    The primary judge’s reasons are rolled up in a summary fashion. He did not fail to provide reasons but the reasons that are provided are of limited, if any, assistance to the Court in relation to the particular ground. They do not expose the primary judge’s reasoning on the ground and in that regard they are, in my opinion, inadequate.

92    There may have been a failure to provide reasons, if ground 1 of the notice of appeal was raised below. Further, the reasons provided in rejecting the argument that the Tribunal ought to have accepted that there was a real chance of it being imputed in Iran that the appellant had converted to Christianity, as raised by ground 6, are inadequate. However, I do not propose to remit the matter to the Federal Circuit Court.

93    This is a matter where, as the Full Court in Carlisle Homes identified, I am able to see that the same result would necessarily be reached if it was remitted. A similar approach was taken in City of Wanneroo. In this instance, the parties ought not to be put to the expense of having the matter remitted to the Federal Circuit Court for the provision of further reasons when doing so will not impact on the outcome and I am able to resolve the issues without the need to do so. These are not grounds dependent on findings of fact, an understanding of the material on which the findings of fact were made or the reasoning leading from those finding to the ultimate findings and conclusions. Nor are the circumstances in this case the same as those in AMF15 where there were other grounds for remitting the matter.

CONCLUSION

94    In light of my findings I will make orders giving effect to the agreed basis on which the matter proceeded as set out at [22] above and will order that the appeal be dismissed and that the appellant should pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    21 June 2016