FEDERAL COURT OF AUSTRALIA

SZVZH v Minister for Immigration and Border Protection [2018] FCA 896

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to file a notice of appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(Revised from transcript)

GLEESON J:

1    This is an application for an extension of time to file a notice of appeal under r 36.05 of the Federal Court Rules 2011 (“Rules”) from a decision of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the second respondent (“Tribunal”) made on 9 December 2014: SZVZH v Minister for Immigration & Anor [2017] FCCA 2648. The Tribunal had affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a Protection (Class XA) visa.

2    The application was filed on 18 December 2017, 27 days after the last date for filing a notice of appeal under r 36.03 of the Federal Court Rules 2011. In his affidavit sworn on 18 December 2017, the applicant explains the delay on the basis of lack of funds, and his lack of knowledge that he could apply for a waiver of the relevant filing fee on the ground of financial hardship.

3    The proposed appeal concerns the applicant’s claims for protection based on his conversion to Christianity.

Background

4    The applicant did not dispute the following matters, set out in the Minister’s written submissions and the reasons of the FCCA judge, concerning the applicant’s background and claims for protection.

5    The applicant is a citizen of the Islamic Republic of Iran who came to Australia in July 2012 as an irregular maritime arrival. The Minister having lifted the bar imposed by s 46A of the Migration Act 1958 (Cth), the applicant applied for a protection visa on 3 December 2012.

6    At [4] to [7] of his Honour’s reasons, the FCCA judge set out the following matters concerning the applicant’s claims for protection made to the Department of Immigration and Border Protection:

[4] The applicant’s protection visa application was submitted under cover of a letter dated 30 November 2012. In that letter, the applicant submitted that he had a well-founded fear of persecution in Iran because of:

a)    his actual or imputed political opinion;

b)    his religion, or lack of it, as a non-observant Muslim; and

c)    his membership of the particular social group “young Iranian male who favours western culture and lifestyle and does not follow an Islamic approach to life” [sic] and “failed asylum seeker imputed with political opinion as a result of his attempt to gain protection from the Iranian state”.

[5] The applicant’s written claims for protection were set out in a statement lodged with his application form and in a letter provided to the delegate on 9 May 2013. Relevantly, he made the following claims:

a)    he was a Shia Muslim;

b)    he completed his military service in 2003. He was unemployed for a period thereafter, but then found work as a cleaner. He was dismissed from this role a few years later because he did not have the right connections;

c)    after he was dismissed, he used his savings to buy a car and worked as a driver. However, the car was old and often broke down and he was not able to earn very much. It was also hard for him to find work as he did not know the right people;

d)    he lived close to the headquarters of the Basij and Sepah and was frequently a victim of their physical and verbal harassment. Once, the Basij detained him for two days for no reason;

e)    his (younger) brother was killed in a car accident (in 2005). The person who caused the accident was well-connected to the Basij and in subsequent court proceedings was released without charge. When the verdict was delivered, the applicant protested and swore at the judge at which point he was informed by his lawyer and a court representative that he would never get justice for his brother as his brother had been politically active and had plotted against the government;

f)    he believed the Iranian militia plotted the car accident that killed his brother;

g)    his mother became depressed following his brother’s death and died a few months later. As a result of these tragedies, all the members of his family, the applicant included, began suffering psychological problems;

h)    although he tried to avoid the Basij by working in suburbs away from his home, they were always aware of his whereabouts and continued to harass him for the next six years. They would inspect his car, interrogate him and his passengers, tow his car away and detain him;

i)    he was being followed by the Basij in the period before he left Iran;

j)    some of his friends were active in a political group and he feared being associated with them;

k)    he had no freedom in Iran and could not survive there in the way that he wanted to. The Basij controlled the things he did;

l)    many of his friends had committed suicide. He, too, had attempted to commit suicide on a number of occasions; and

m)    although he was opposed to the government, he had never had the courage to protest.

[6] The applicant attended a departmental interview on 9 May 2013.

[7] On 6 June 2013 the applicant provided the Department with various documents and extracts of online conversations said to have been between him and his contacts in Iran. It was submitted that the documents supported the applicant’s claim (made at his interview) that he had been politically active, and demonstrated that he was associated with a group perceived by the Iranian authorities to be a significant security threat.

7    At [8] to [10] of his Honour’s reasons, the FCCA judge set out the following matters concerning the applicant’s claims for protection made to the Tribunal:

[8] In a “Submission Letter” dated 14 November 2014 the applicant also made the following claims:

a)    he liked to drink alcohol, wear western clothing and listen to western music, all of which were banned under Iranian and Islamic rules;

b)    he was targeted by the Basij and Sepah after his brother’s death (in 2005). He was detained many times, including for two days in 2009;

c)    some of his friends were active in a political group called “Yaran Kaman”. He became involved with the group as a driver, delivering letters and transporting members to seminars. However, after the leader of the group disappeared, he decided to cease his activities because he feared for his family;

d)    because he was being monitored by the Basij and Sepah he was unable to get a job in the public sector;

e)    he attempted suicide once. After a long battle, he decided to leave Iran and come to Australia, arriving in July 2012;

f)    his absence from Iran was noticed by the authorities who questioned his brother and father about his whereabouts and intentions;

g)    he became suicidal after his protection visa application was refused in August 2013. At his friend’s suggestion, he visited a church and was impressed by its spirituality. After some further research, he decided to become a Christian and for about a year attended church weekly;

h)    he “offered Christianity” to his family and friends in Iran, particularly to his elder brother, and spoke openly to them about his conversion;

i)    on 26 November 2013 his (elder) brother was stopped by the authorities. When the authorities checked his phone, they found text messages from the applicant which mentioned that he was attending church (in Australia), as well as a picture of the church. His brother was immediately arrested and the following day a summons was sent to their father telling him to attend the police station;

j)    upon his attendance at the police station, his father was advised that the applicant’s conversion was being investigated by the intelligence agency. He was also told that the applicant’s younger brother had been killed because “he was against Islam and was promoting Christianity”; and

k)    the applicant’s elder brother was detained for three days, during which time he was tortured for information. His brother and father were made to sign a pledge that they would not leave Tehran and would inform the authorities of the applicant’s activities.

[9] In support of his claims, the applicant provided:

a)    “Summons to Attend” dated 26 November 2013 directing the applicant’s father to attend a police station;

b)    the applicant’s baptismal certificate dated “Sunday 26 October”; and

c)    a screenshot from the applicant’s mobile phone of a text conversation between him and his brother on 24 November 2013, with the applicant relevantly stating that he could not talk as he was “at church right now”. The screenshot also shows that the applicant sent his brother a photograph with the comment “[l]ook how the [sic] big and beautiful our church is”.

Tribunal’s decision

8    The Tribunal's reasons are summarised by the FCCA judge at [11] of his Honour’s reasons. The FCCA judge noted at [11] (a) that the Tribunal did not accept the applicant was a generally credible witness.

9    His Honour set out the various findings and reasons of the Tribunal concerning the applicant’s claims for protection unrelated to his claimed conversion to Christianity.

10    Concerning the applicant’s claimed conversion, the FCCA judge summarised the Tribunal’s findings as follows (at [11](i) to (k)) of his Honour’s reasons:

i)    the Tribunal noted that the applicant’s knowledge of Christianity was very limited and, in the circumstances, was not satisfied that he understood what he was purportedly prepared to risk persecution for. Consequently, and because the Tribunal did not accept that the applicant was generally credible, it was satisfied that his conversion to Christianity was not genuine;

j)    the Tribunal did not consider it plausible that the applicant would be suspected of genuinely converting to Christianity in Australia based purely on the text messages to his brother, or that those messages were sufficiently incriminating to warrant his brother or father being more than questioned, if that. Further, the Tribunal was not satisfied that those messages would have motivated the Basij to expend resources to detain and/or torture the applicant’s elder brother. The Tribunal therefore did not accept that the applicant’s brother’s phone was checked by the Basij, although it accepted that the messages were sent. It therefore rejected as false the applicant’s claim that his brother and father had come to the adverse attention of anyone in Iran for the reasons claimed. In light of its findings, the Tribunal did not accept that the applicant’s profile, however described, was such that he warranted being sought by anyone after he departed Iran;

k)    the Tribunal noted that country information indicated that fraudulent documents were readily available in Iran. In light of this, and given the Tribunal’s previous findings as to the applicant’s credibility and claims, it gave no weight to the “Summons to Attend”…

FCCA proceeding

11    The applicant commenced proceedings in the FCCA by way of an application filed on 13 January 2015. By a further amended application (“application”), the applicant advanced three grounds upon which he asserted the Tribunal's decision was affected by jurisdictional error.

12    The FCCA judge dismissed the application.

First ground of review

13    In the application, the first ground was entitled (unhelpfully) “Misapplication of law or failure to ask correct question”. The first ground was followed by a page of text which raised issues about the Tribunal’s reasoning concerning the applicant’s claimed conversion to Christianity and the risk that he would be found guilty of apostasy in Iran.

14    The FCCA judge addressed the first ground of review at [14] to [20] of his Honour’s reasons. At [17], his Honour noted that, while the Tribunal did not give separate consideration to the applicant’s claims about apostasy in the context of the complementary protection criteria, the Tribunal had rejected not only the genuineness of the applicant’s claimed conversion to Christianity (at para 50 of the Tribunal’s reasons) but also the possibility that in Iran he would be perceived to have become a Christian (at para 71 of the Tribunal’s reasons).

15    At [18], the FCCA judge rejected a submission that the genuineness of the applicant’s conversion was not relevant to the Tribunal’s consideration. As his Honour recognised, that matter was relevant to whether the applicant would wish to practise Christianity were he to return to Iran and, consequently, his risk of harm in Iran.

16    At [19], the FCCA judge noted that the only evidence of the applicant’s purported apostasy apparently available to the Iranian authorities was the information contained in text messages which the applicant had allegedly exchanged with his elder brother in Iran. However, the FCCA judge also noted that the Tribunal did not believe the applicant’s evidence that his brother’s telephone had been checked by the Basij.

17    At [20], the FCCA judge concluded:

That reasoning, which was expressed in the context of the applicant’s Convention-related claims, was open to the Tribunal and led to the findings in para.71 of the Tribunal’s reasons that the applicant was of no particular interest to the Basij and would not be perceived in Iran to have converted to Christianity. Those factual claims having been rejected in the context of the applicant’s Convention-related claims, no further consideration of them was necessary in that part of the Tribunal’s reasons dealing with complementary protection questions.

Second ground of review

18    The second ground of review was that there was “an insufficient logical or evidentiary basis for the Tribunal to conclude that the applicant was ignorant of the elements an adherent to the religion might reasonably know”.

19    The FCCA judge addressed the second ground of review at [21] to [24] of his Honour’s reasons.

20    At [21], his Honour referred to the applicant’s complaint that the Tribunal asked “just two questions” concerning his knowledge of Christianity. The FCCA judge set out para 48 of the Tribunal’s decision record which recorded the relevant questions and answers as follows:

At hearing, when then asked why he converted to Christianity, the applicant said he was suicidal after being refused by the delegate and a Christian friend had introduced him to Christianity. He said that after becoming a Christian he became ‘calm’. He said he had a dream where a Messiah figure appeared and this gave him hope. When asked what he knew about Christianity, he said Christians are polite, kind and have a good attitude. When asked again, he said as a Christian he may drink alcohol and have a friendship with a female. He said that now he ‘knows Jesus’, he will be protected. He said that in Islam, people may be stoned to death. He said his spirit had become ‘fresh’ since he converted to Christianity.

21    At [22], the FCCA judge noted the applicant’s reference to the Tribunal’s finding (at para 49 of the decision record) that the applicant’s “knowledge of Christianity was very limited”, and its conclusion (at para 50 of the decision record), as follows:

In the circumstances, I am not satisfied the applicant knows sufficient about Christianity such that he even understands what it is he is purportedly prepared to risk persecution for. For all the reasons set out herein, neither do I accept the applicant is generally credible. I am therefore satisfied the applicant’s conversion is not genuine, and any benefits arising from his ongoing engagement in the Christian church in Australia (which I believe is more akin to temporary therapy), are readily available in Iran in a range of non-sectarian alternatives that will not bring him to any adverse attention.

22    At [24], the FCCA judge rejected the applicant’s submission that “it had not been logically or evidentially open to the Tribunal to make such findings on his religious beliefs based only on the two questions which para.48 of its reasons recorded it had posed”, concluding that:

It was open to the Tribunal to be more probing in its questioning of the applicant but it was under no obligation to seek from him an elaboration which he was not inclined to make: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 per Gummow and Heydon JJ at 451 [58], Gleeson CJ agreeing at 438 [1]. It asked him what he knew about Christianity and it received an insubstantial response. When pressed by a repetition of the question he again made no reference to any essential element of the religion he claimed to profess and focussed instead on social behaviours which, by implication, were different from those associated with his experience of Islam. If those were the answers the applicant wished to give to those questions after having on his own account been to church weekly for a year, then the Tribunal was entitled to rely on them and to find the applicant’s knowledge of his new religion to be materially deficient and his claim to conversion correspondingly unpersuasive.

Third ground of review

23    The third ground of review was that there was an insufficient logical or evidentiary basis for the Tribunal to find the applicant was not a “genuine” Christian having found that the applicant was baptised, attended bible classes and church services.

24    The FCCA judge addressed the third ground of review at [25] to [27] of his Honour’s reasons.

25    At [25] of his Honour’s reasons, the FCCA judge noted that the third ground of review was closely related to the second, saying:

The substance of it was that the Tribunal had wrongly imposed an arbitrary standard of religious knowledge which he had had to satisfy before his claims of conversion to Christianity would be accepted.

26    At [26], the FCCA judge concluded that the applicant’s arguments were, in substance, arguments that the evidence supported a conclusion different from the one which the Tribunal reached and that it should have reached that different conclusion. His Honour stated that these arguments were an “invitation to undertake impermissible merits review”. His Honour also noted that the applicant did not identify any arbitrariness on the part of the Tribunal or any application of an impermissible test.

27    At [27], the FCCA judge stated that “although provided with an opportunity to do so, the applicant failed to provide the Tribunal with evidence of any real knowledge or understanding of even the most basic and essential Christian beliefs”. With respect, in my view, it was plainly open to the FCCA judge to reach that particular conclusion.

Application for extension of time

28    The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] (“DZAAD”). The relevant considerations are:

(1)    the reasons for and length of the delay – the Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored;

(2)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and

(3)    the merits of the appeal: SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9]; and DZAAD at [28].

29    The substantive application should have such prospects of success as not to render the EOT an exercise in futility: SZUOV v Minister for Immigration and Border Protection [2017] FCA 1420 at [5], [8]; see also BAG15 v Minister for Immigration and Border Protection [2018] FCA 307 at [18].

30    The principal factor relied upon by the Minister in opposing the proposed extension of time was the lack of any prospect that an appeal on the grounds set out in the draft notice of appeal would succeed.

Proposed grounds of appeal

31    The applicant’s draft notice of appeal, set out in a document annexed to the applicant’s affidavit sworn on 18 December 2017, mirrors the grounds of review that were advanced in the applicant’s further amended application and which were considered by the FCCA judge.

First proposed ground of appeal

32    In both the draft notice of appeal and Mr Williams’ written submissions, the applicant contended that:

With regard to [the first ground of review], the primary judge erred at [20] by finding that “no further consideration of [the appellant’s claims of apostasy] was necessary under the complementary criteria, after finding at [17] that the “Tribunal did not give separate consideration, in the context of the complementary protection criteria, to the applicant’s claims of apostasy”.

33    As the Minister’s submissions noted, this simply repeated the submissions the applicant advanced before the FCCA. Orally, the applicant further repeated his argument that the Tribunal took into account an irrelevant consideration as to whether the applicant's conversion from Islam to Christianity was genuine or disingenuous for the purposes of considering the applicant’s complementary protection claims.

34    The first proposed ground of appeal is doomed to fail. The Tribunal’s factual findings that:

(a)    the applicant is not a genuine Christian convert, who would not be imputed as being a Christian convert should he return to Iran (at para 71 of the Tribunal’s decision record); and

(b)    the older brother’s phone was not checked (as claimed) by the Basij or anyone else in Iran (at para 56 of the Tribunal’s decision record),

meant that it was open to the Tribunal to give no consideration to the risk that the applicant would be found guilty of apostasy when considering the complementary protection criteria, because there was no factual basis for the existence of any such risk. There is no legal basis for the contention that the FCCA judge erred in finding that no further consideration of the “claims of apostasy” was necessary under the complementary protection criteria.

35    Further, it was relevant to consider the genuineness of the applicant’s conversion for the reasons given by the FCCA judge at [18] of his Honour’s reasons.

Second proposed ground of appeal

36    The applicant contended:

With regard to [the second ground of review], the primary judge erred at [24] of the judgment by finding that there was a sufficiently disclosed rational basis for the Tribunal to conclude that the elements of which the applicant was ignorant, are elements that an adherent to the religion might reasonably be expected to know.

37    As the Minister’s submissions correctly observed, this contention is not an accurate summary of the FCCA judge’s reasons at [24]. Rather, the FCCA judge concluded that the Tribunal was entitled to rely on the applicant’s answers to the questions posed to find that the applicant’s knowledge of Christianity was materially deficient and his claimed conversion correspondingly unpersuasive.

38    Moreover, contrary to Mr Williams’ oral submissions, Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 is not analogous to the present case. The error in SZLSP involved the Tribunal’s reliance on incorrect answers to questions about the supposed tenets of the practice of Falun Gong. In contrast, in this case, the Tribunal asked the applicant twice the most open-ended of questions: “What did the applicant know about Christianity?” The Tribunal’s decision record records that having been asked that most general question twice, the applicant identified nothing about Christian religious doctrine.

39    Accordingly, this proposed ground of appeal has no prospects of success.

Third proposed ground of appeal

40    The applicant contends:

With regard to [the third ground of review], the applicant contends that there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a “genuine” Christian…after accepting the applicant was baptised …and attended church…and in the light of the evidence presented by the applicant below.

41    In the draft notice of appeal, the applicant also contended that the FCCA judge erred at [26] of his Honour’s reasons “by finding that the applicant undertook “impermissible merits review” and “at no point did the applicant identify any arbitrariness of the [part] of the Tribunal or the application of an impermissible test””.

42    There is no basis for any suggestion that there was an insufficient logical or evidentiary basis for the Tribunal’s finding that the applicant’s conversion to Christianity was not genuine. Nor do the matters identified in the written submissions made on behalf of the applicant concerning his baptism and church attendance compel a different result.

43    In oral submissions, Mr Williams referred to para 55 of the Tribunal’s decision record as a further matter which supported or indicated that the third proposed ground of appeal has some prospects of success. Paragraph 55 records that:

The Tribunal has not further discussed section 91R(3) of the Act herein, as it was not satisfied the relevant messaging between the applicant and his brother was solely for the purposes of strengthening his claim to be a refugee.

44    It is apparent from para 50 of the decision record (as set out at [21] above) that the Tribunal formed the view that the applicant may have derived or been deriving some benefits from his ongoing engagement with a Christian Church in Australia. This finding explains the finding at para 55. I reject the submission that it was necessary for the Tribunal to conclude in light of its finding at para 55 that the applicant’s messaging with his brother involved a purpose related to the existence of a genuine Christian faith. To the contrary, it is plain from para 50 of the Tribunal’s decision record that it considered that the applicant’s conversation was not genuine, a matter not in any way inconsistent with its recognition that the applicant had some form of engagement with the relevant Church.

45    As such, this proposed ground of appeal is also hopeless, there being no basis for thinking that the FCCA judge erred in finding that this aspect of the Tribunal’s reasons involved no jurisdictional error.

Conclusion

46    For these reasons, I accept the Minister’s submission that the proposed appeal has no merit. In those circumstances, it would be futile to grant the extension of time sought by the applicant and the application should therefore be dismissed regardless of the adequacy or otherwise of the applicant’s explanation for his delay. Costs should follow the event.

Associate:

Dated:    13 June 2018