FEDERAL COURT OF AUSTRALIA

BTP16 v Minister for Immigration and Border Protection [2018] FCA 585

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

GRIFFITHS J:

1    This appeal is from a judgment of the Federal Circuit Court of Australia (FCCA), which is reported as BTP16 v Minister for Immigration and Border Protection [2017] FCCA 1681. The appellant was represented by senior counsel (Mr S D Ower SC) in the FCCA. Initially he represented himself in the appeal with the assistance of a McKenzie friend, Mrs Lesley Walker. When the matter came on for hearing on 28 February 2018 the appellant applied for an adjournment so that he could obtain legal advice. That application was granted and further directions were made for the future conduct of the appeal and with a view to it being heard on 27 April 2018 by video link to Sydney. Subsequently, Mr Ower SC and Camatta Lempens Pty Ltd Lawyers agreed to represent the appellant on a pro bono basis in the appeal.

2    For the following reasons, the appeal will be dismissed, with costs.

Summary of background facts

3    Drawing largely on the primary judge’s reasons for judgment, the background facts can be summarised as follows. The appellant is an Iranian citizen. He arrived in Australia on 1 April 2013 as an irregular maritime arrival. He lodged a protection visa application on 2 August 2013. His application was refused by the Minister’s delegate on 15 October 2014. He sought a review in the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (AAT)). He was represented by a migration agent and assisted by an interpreter in the AAT. The AAT affirmed the delegate’s decision on 14 June 2016. The appellant then sought a judicial review of the AAT’s decision in the FCCA.

4    The appellant advanced various grounds for his claim to be entitled to a protection visa. As will shortly emerge, the appellant’s claims changed and developed during the different stages of decision-making. His primary claim concerned an adulterous relationship which he said he had had with a married woman whose husband was a senior official in Iran’s security and intelligence service. Another claim related to his fear of persecution were he removed to Iran on general religious grounds because of the appellant’s non-observance and rejection of the Islamic faith. The appellant raised this more general ground relating to his religious faith for the first time in his entry interview. He said then that people born in Iran were “condemned to be Muslim” and had no freedom to explore other religions. He said that he had once been detained by the police in Iran for no apparent reason and had been beaten and accused of breaking Shia law.

5    The appellant’s claims relating to religion were developed more extensively in the course of the AAT proceeding, as is reflected in the following matters:

(a)    In his statutory declaration dated 29 July 2013 in support of his protection visa application, the appellant claimed that he had left Iran because of his relationship with a married woman and that he “also left for religious reasons”. He stated that he was born into a Muslim family, that his parents were very strict Muslims and that he had no other option but to follow and accept the faith. He said that he was forced to attend Mosque at school and pray regularly and that, even when he was working, he was compelled to undertake religious activities such as fasting and religious prayers. He said that he began to distance himself from Islam when he was about 20 years old and that the Iranian government is very oppressive when it comes to religion. He said that this pressure made him form a negative view on Islam. He said that there were regular conflicts with his family about his views when he did not practise Islam or undertake fasting. He said that when he worked for Mazda in Iran he did not undertake religious activities and spoke to colleagues about his views, which he believed was passed on to security and that he believed that they were monitoring his activities. He described the incident relating to someone breaking the lock on his cabinet at work and the refusal by company officials to check the security cameras. He added that he was considered an infidel if he did not follow the Islamic faith and that his “problems arose because of the Iranian societies’ (sic) attitude towards religion and my family’s attitudes”.

(b)    In the delegate’s reasons for decision, it is specifically noted at [2] that during the appellant’s entry interview, the appellant had repeatedly stated that general insecurity was the reason for his relocation to Australia and that he said that his principal reason for departing Iran was “the opportunity to leave”. The delegate then noted that new claims were put forward in the appellant’s statutory declaration dated 29 July 2013, whose contents were set out in full in the delegate’s decision record.

(c)    The delegate did not directly address the appellant’s claims on the topic of religion but concluded that, considering “all evidence presented by the applicant and in view of the discussion above”, the delegate was of the opinion that the appellant had fabricated his claims to advance his claims for a protection visa and that “he is a thoroughly unreliable witness”.

(d)    In the written submissions dated 12 December 2014 by the appellant’s migration agent in the AAT proceeding, the following matters were raised:

    the appellant is of the Shi’a Muslim faith although he has stated that he does not practice any religion;

    the appellant was a man who does not practice any religion but had been brought up by a strict Shi’a family and he was at risk from the authorities “because of his desertion of the true faith”;

    apostasy is “a secular and religious crime” and that it is enough that the person rejects Islam;

    the appellant “has committed the form of apostasy known as murtad fitri – being born into an Islamic family but later rejecting that faith”. The religious offence of forsaking Islam is a crime of apostasy under Iranian law and the appellant is at risk because his lack of religious observance could be reported to local religious and civic authorities such as the Basij;

    it was submitted that there is “ample evidence to show that our client’s situation entitles him to recognition as a refugee on the grounds of religious-based persecution, on two grounds of adultery and apostasy” as well as entitlement to complementary protection;

    emphasis was placed on the fact that the delegate did not mention that the appellant was a non-believer in Islam and does not participate in any religious observances and that his profile on return would be sufficient for his details to be brought to the local Basij, which “will be sufficient to identify him as an apostate”;

    it was again stated that country information indicated that penalties for apostasy can include imprisonment; and

    given “past threats and actions against Iranian apostates and against those found guilty of adultery”, the appellant may be arbitrarily deprived of his life.

6    The AAT gave detailed reasons for its decision. It rejected the appellant’s claims regarding the adulterous affair on the basis of its adverse findings on credit (see [103] to [140] of the AAT’s reasons for decision).

7    In its reasons for decision, the AAT referred to the appellant’s statutory declaration which accompanied his protection visa application, his evidence at his entry interview and his evidence before the AAT. The main section of the appellant’s statutory declaration dated 29 July 2013 which included his claims were set out in the AAT’s reasons for decision. The AAT referred to it having raised with the appellant “his lack of religious beliefs” and the appellant’s response, which included statements that “he does not affiliate himself with any religion and does not follow any religion”. The AAT referred to the appellant’s response to questions about his work at Mazda and that he said he had had discussions with other workers about Islam “and believed that these conversations had been the reason his personal work locker had been tampered with”. The AAT noted at [91] of its reasons for decision that the appellant’s representative had stated at the AAT hearing that the Convention grounds on which the appellant sought protection “were religious based on the applicant’s feelings towards Islam and religion in general”. The AAT also noted that the representative made a submission to the effect that if the AAT did not accept the appellant’s claims concerning his affair with a married woman, the appellant’s “religious beliefs, or lack thereof, on their own would be unlikely to found a claim for protection on the convention ground of religion” (emphasis added).

8    The AAT addressed the appellant’s claims regarding religious persecution in a separate section of its reasons for decision commencing at [149]. It is desirable to set out in full [149] to [159]:

Claims of religious persecution/imputed political opinion

149.    As the Tribunal does not accept the applicant's account of past harm or well-founded fear of future harm because it does not accept that he had an adulterous relationship, the Tribunal turns to consider the more general claims the applicant made about his religion.

150.    In doing so, the Tribunal notes that the applicant, while not relying on or emphasising those claims before the Tribunal, also did not resile from them completely.

151.    While the applicant made limited claims on this basis, I have considered, as did the delegate, whether the applicant has a well-founded fear of persecution based on his religion and/or imputed political opinion, noting that religion and politics, in Iran, is often intertwined.

152.    The applicant claims to have been raised Muslim, but was not observant. He did not claim to have converted to any other religion. It is well established that the lack of a religion, failure to practice one's religion or absence of belief can form the basis of a Convention claim on the basis of religion.

153.    The Tribunal accepts that the applicant had minor conflict with his family in relation to his adherence to religious observances. However, from the evidence of his ongoing relationship with his family and living in the family home until he left the country, it is evident that this family tension was relatively minor.

154.    The Tribunal accepts that Mazda in Iran is owned, in a roundabout way, by the Sepah and if he had spoken to colleagues there about his religious views, he would reasonably expect repercussions. Whether the interference with his locker and the apparent refusal of the company to investigate that was related to his expression of his religious views is speculative. No further incidents took place because the applicant chose to leave the company shortly after that in 2011, going on to establish his own company, which he ran for nearly two years.

155.    The applicant argued that because he does not follow his faith, he would be considered an infidel and could be executed. Although he claims to believe in God, he does not claim to follow any religion. He has not made any clear claims that he has been questioned or persecuted for his non-belief or non-adherence. Even if the Tribunal were to accept that the incident in 2011 at Mazda was based on the applicant's expression of his religious beliefs or on his imputed religious beliefs, the Tribunal notes that he has made no claim that he experienced any further questioning, investigation or harm in the subsequent two years he lived and worked in Iran.

156.    The country information notes extremely low attendance of Tehranis at mosque on a weekly basis and the clergy have identified concerns about the population's failure to practice Islam. The most recent report by the Department of Foreign Affairs and Trade (DFAT) states that non-believers are unlike to come to the attention of the authorities unless they are vocal or outspoken in their sentiments.

157.    The applicant has indicated no past harm has come to him based on his non-observance and he has not indicated any intent to publicly espouse his absence of beliefs in the future. I do not accept that in his previous employment with Mazda, his difficulties at work were clearly related to his claim to have discussed his religious views with co-workers. I consider his claims in this respect to have been highly speculative.

158.    The Tribunal is of the view that the applicant does not evidence a well-founded fear of persecution based on his actual or imputed religious beliefs. The Tribunal accepts that in countries like Iran, religion and politics are often interrelated. For the sake of completeness, the Tribunal similarly concludes that the applicant has not evidenced a well-founded fear of persecution based on his actual or imputed political opinion.

159.    On the evidence before me, the applicant has not satisfied me that he has a well-founded fear of persecution based on his religious beliefs or lack thereof.

9    For similar reasons, the AAT was not satisfied that the appellant had established any basis for complementary protection.

The FCCA’s reasons for judgment summarised

10    The three grounds of judicial review raised and pressed below may be summarised as follows:

(a)    The AAT committed jurisdictional error by failing to ask itself the correct question when considering the appellant’s claim of past harm or well-founded fear of future harm on the basis of his religion. The appellant claimed that the AAT had failed to take into account the extent to which his anti-Islam views had crystallised while he was in the West, as well as his resolution to speak out against Islam on behalf of Muslims and non-Muslims.

(b)    The AAT committed jurisdictional error by asking itself the wrong question in taking the view that the appellant’s claimed fear of future persecution on religious grounds was determined by the past conduct of Iranian authorities.

(c)    The AAT fell into jurisdictional error in failing to ask itself the question of whether the appellant had a well-founded fear of persecution based on his actual or imputed political beliefs in Iran.

11    The primary judge gave detailed reasons for rejecting each of these three grounds of judicial review. Those reasons may be summarised as follows. As to the first ground of review summarised above, the primary judge found that, by reference to the AAT’s reasons for decision, it had given consideration to the appellant’s claims of past and future harm based on religious grounds, and concluded that he did not have a well-founded fear of persecution based on his actual or imputed religious beliefs. The primary judge held that the AAT relied on country information in arriving at its findings, which were not unreasonable in the relevant legal sense, nor irrational or illogical. The primary judge also held that the appellant was not denied natural justice by reason of an alleged failure of the AAT to consider his actual claims, because those claims were in fact considered.

12    The primary judge dealt with the next two grounds of judicial review together. At [23], the primary judge described these grounds as raising an error of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (S395). The primary judge found, however, that the AAT did not simply focus on how the appellant could avoid persecution. Rather, his Honour concluded that the AAT had made a positive finding that the appellant did not have a well-founded fear of persecution based on his actual or imputed political beliefs, matters which themselves were the subject of specific findings by the AAT regarding the appellant’s past behaviour and by reference to the country information referred to above. Thus the primary judge concluded that, having regard to the AAT’s findings as to how the appellant had lived in Iran in the past and his “lack of avowed intentions to live differently in the future” if returned to Iran, he would live there as he had done previously.

13    As to the appellant’s complaint that the AAT had failed to ask itself whether he had a well-founded fear of persecution based on his actual or imputed political beliefs in Iran, the primary judge observed at [24] that if the appellant regarded his lack of religious belief as an actual political opinion, he had to bring this to the AAT’s attention. On the question of whether the appellant’s lack of religious belief was an imputed political opinion, the primary judge found at [24] that the AAT considered and rejected this claim by reference to country information.

14    Accordingly the judicial review challenge was dismissed.

The appeal

15    The appellant relied on an amended notice of appeal dated 9 April 2018. It contained the following single ground of appeal (without alteration):

1.    The learned primary judge erred in not holding that the decision of the second respondent (the Tribunal) was affected by jurisdictional error, in that, whether taken separately or cumulatively:

1.1    His Honour erred in finding that the Tribunal had considered and addressed the appellant’s claim to be apostate, when His Honour ought to have found that the Tribunal had erroneously categorised the appellant as simply non-observant.

1.2    His Honour erred in finding that the Tribunal had asked the right question, namely what the appellant would do in the event that he returned to Iran, when His Honour ought to have found that the Tribunal had, in effect, asked what the appellant may do to avoid persecution.

1.3    His Honour erred in finding that, in any event:

1.3.1    the Tribunal had not erred in failing to ask why the appellant may act in a certain manner when he returns to Iran; and

1 .3 .2    the Tribunal had not erred in considering whether in light of the severity and nature of the penalty for being an apostate, there was any prospect of the appellant being found to be an apostate, irrespective of his conduct.

(a) The appellant’s submissions summarised

16    The appellant contended that the primary judge erred in not holding that the AAT’s decision was affected by jurisdictional error. It was submitted that the error could be described either as a failure to consider a claim or a failure to ask the right question in the light of S395. It was submitted that the Tribunal failed to consider claims that were expressly or squarely raised on the material before it, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58]-[61]. The error was said to relate to the appellant’s claims of evidence that he no longer adhered to the Islamic faith. This claim was made in the statutory declaration dated 29 July 2013 which supported the appellant’s visa application, in which he said that he did not follow any religion. He said that he had left Iran for religious reasons after he had begun to distance himself from Islam when he was 20 years old. He said that while he was working with Mazda, he did not undertake religious activities and “spoke to colleagues about my views”.

17    The appellant drew attention to the fact that the delegate did not ask him any questions about his religious beliefs.

18    The appellant also pointed out that his migration agent had included in his written submission to the AAT a claim that “as a man who does not practice any religion”, the appellant was “at risk from the authorities because of his desertion of the true faith”. The appellant was described in the submission as an “apostate”. The submission stated that the delegate had ignored all of the appellant’s claims concerning religion and made no mention of the fact that the appellant said that he was a non-believer in Islam and did not participate in religious observances.

19    The appellant acknowledged that the AAT addressed his claims relating to his religion, although its primary focus was on the appellant’s claims relating to the alleged adulterous relationship. The appellant described the AAT’s consideration of his claims regarding religion as having been conducted in a “somewhat derisory fashion”.

20    Although the appellant acknowledged that the primary judge found that the AAT had appeared to accept the position as to the appellant’s past religious faith as “considerably more than one of mere observance” (at [20] of the reasons for judgment), he complained that there was nothing in the AAT’s reasons to suggest that it recognised the distinction between the position of a believer who simply does not attend, as opposed to a person who actively does not believe in the faith. The appellant also noted that the primary judge may have gone a step further and found that, in any event, that distinction was not significant.

21    The appellant submitted that the AAT’s failure properly to characterise his claim led to the AAT not asking the correct question as to what he would do if he were returned to Iran. He submitted that the AAT was obliged to make a finding as to his particular circumstances and whether they meant that he had a well-founded fear of persecution. Consistently with S395 at [40]-[43], the appellant said that the AAT must not ask itself whether he could avoid persecution, but rather it had to consider that he would, in fact, be persecuted.

22    The appellant submitted that the primary judge erred in not finding that the AAT had acted inconsistently with S395. This was because the AAT’s reasons did not amount to a finding as to what the appellant would do if he were returned to Iran. This was partly because of the AAT’s incorrect conflation of non-observance of religion with apostasy.

23    Finally, the appellant submitted that even if the primary judge correctly characterised the AAT’s findings, it was wrong not to find jurisdictional error in any event. This was because it was neither sufficient, nor correct, merely to ask what a person would do upon his return to his country of origin. Rather, it is necessary to ask why the person would act in a particular manner upon return and whether they would do so because of their fear of persecution, citing S395.

(b) The Minister’s submissions summarised

24    In summary, the Minister’s submissions in respect of the amended notice of appeal were that the AAT:

(a)    correctly identified, and considered, the appellant’s claim based on religion;

(b)    did not fall into the kind of error identified in S395; and

(c)    otherwise dealt with the appellant’s claims in an orthodox manner and within jurisdiction.

25    The Minister emphasised that the appellant did not claim to have converted from Islam to another religion. Rather, he merely claimed to be a “non-believer in Islam and [did] not participate in any religious observances”. In this respect, the Minister submitted that the appellant’s representative erroneously described the appellant as an “apostate”.

26    Further, the Minister submitted that the appellant’s claims were not misapprehended by the AAT. Rather, the AAT considered the appellant’s claims as advanced before the AAT.

Analysis and disposition of the appeal

27    As presented, the appellant’s sole ground of appeal appears to have two aspects. The first is that the FCCA erred in not finding that the AAT did not consider and deal with an integer of his claim to protection, namely that he was an apostate and the AAT addressed the matter on the basis that the appellant was “simply non-observant” of the Islamic faith.

28    The second aspect involves a claim that the primary judge erred in not finding that the AAT acted inconsistently with the principles in S395.

29    It is convenient to deal with these two limbs in turn.

(a) Alleged failure to consider the appellant’s claim to be an apostate

30    This issue turns on the primary judge’s consideration and findings in respect of how the appellant presented his case as it related to the issue of religion and whether or not that case in the AAT, as presented, was considered by the AAT. It is important to bear in mind that the AAT is under no obligation to put the appellant’s case for him (see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [36] per Gray, Cooper and Selway JJ).

31    At the outset, it needs again to be emphasised that, on a judicial review, the AAT’s reasons for decision need to be approached by reference to the well-established principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272.

32    It is evident from the AAT’s reasons for decision that it understood the appellant’s claims relating to religion. The AAT noted the appellant’s argument that “because he does not follow his faith, he would be considered an infidel” and he did not claim to follow any religion (see at [155] of the reasons for decision). The AAT also made express reference to the written submission dated 12 December 2014 in [58] of its reasons for decision. That submission raised for the first time a claim by reference to the concepts of “apostasy” and “apostate”.

33    The primary judge expressly stated in [17] that he was satisfied that the AAT had considered “the evolution of the applicant’s relationship with Islam as demonstrated in the materials before it”. His Honour’s reasons for making that finding are set out in [17] to [22] of the reasons for judgment. The primary judge expressly noted at [19] that, while the AAT described the appellant as “non-observant” rather than using the term “apostate”, it did use the word “infidel” at [155] of its reasons for decision. The primary judge gave detailed reasons why he was satisfied that the AAT was “alive” to the history of the appellant’s relationship with Islam, by reference to what was said at the entry interview, the statutory declaration and what the appellant said during the course of the AAT hearing. In particular, the primary judge found at [20] that the AAT appeared to view the appellant’s past as involving “considerably more than one of non-observance”.

34    The appellant has failed to establish any appealable error in respect of the primary judge’s analysis and findings concerning this aspect of the appellant’s claim as advanced in the AAT concerning his religious faith. In my respectful view, his Honour was correct to consider the appellant’s complaint in this respect by reference to the AAT’s reasons for decision as a whole, as well as to how the appellant’s claims concerning religion evolved. The AAT’s reasoning is not confined to that which is set out in [157], where there is a reference to “non-observance” as there also is in [152], upon which the appellant placed heavy reliance. All of [149] to [158] need to be considered, as well as the AAT’s summary of background matters, including the summary of the appellant’s evidence in the AAT. It is notable, for example, that there is an express reference by the AAT in [155] of its reasons for decision to the appellant claiming that he would be considered an infidel and could be executed.

35    His Honour was correct to conclude that the AAT approached the question on a broader basis than merely that the appellant was a non-observer of the Islamic faith.

(b) Did the AAT act inconsistently with S395?

36    The essence of the majority judgments in S395 is that it is inconsistent with Australia’s obligations under the Refugee Convention to require a person to be discreet or otherwise modify some attribute or characteristic to avoid harm.

37    The primary judge did not err in rejecting the appellant’s claim that the AAT had acted inconsistently with the majority judgments in S395. That is because, as the primary judge found, the AAT did not simply focus on how the appellant could avoid persecution. Rather, as outlined in [12] above the primary judge reasoned that, having regard to the AAT’s findings as to how the appellant had lived in Iran previously and taking into account his lack of avowed intentions to live differently if he were returned to Iran, the AAT was satisfied that the appellant would not have a profile which would attract attention to him from the authorities. The AAT did not approach the matter on the basis of asking whether it was possible for the appellant to live in Iran in such a way so as to avoid adverse consequences because of his lack of religious faith. Rather, it found that the appellant had not suffered past persecution on religious grounds and it was unlikely that that would change if the appellant returned to Iran and continued to live as he had in the past. This approach adequately conforms with the approach of the majority in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; 79 ALJR 1142 at [8]-[10] per Gleenson CJ and at [163] to [166] per Hayne and Heydon JJ.

38    For these reasons, the primary judge did not err in rejecting the appellant’s claim that the AAT had acted inconsistently with S395.

39    The Court expresses its gratitude to Mr Ower SC, Ms Rutherford and Camatta Lempens Pty Ltd Lawyers, who acted for the appellant on a pro bono basis and provided helpful assistance to the Court.

Conclusion

40    The appeal should be dismissed and the appellant ordered to pay the first respondent’s costs, as agreed or assessed.

Associate:

Dated:    30 April 2018