FEDERAL COURT OF AUSTRALIA

FTQ18 v Minister for Home Affairs [2019] FCA 2025

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with 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

STEWARD J:

1    The appellant is an Iranian citizen who arrived in Australia in 2013. In 2017, he applied for a Temporary Protection (subclass 785) visa. This was refused in 2018 by a delegate of the first respondent (the “Minister”). That decision was affirmed by the second respondent (the “IAA”). In 2019, the appellant sought judicial review of that decision in the Federal Circuit Court; that application was dismissed. The appellant now appeals that decision to this Court.

Applicable Legislation

2    The appellant contends that the IAA misapplied s 5J of the Migration Act 1958 (Cth) (the “Act”). That section relevantly provides:

Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

…

The IAA’s Decision

3    In essence the appellant fears that he will be harmed if returned to the Islamic Republic of Iran because in or around 2006 he stopped believing in Islam and since that time has been a non-believer. In more detail, his claims were summarised by the IAA as follows:

•    He was born in Broujerd, Lorestan Province, Iran to a Shia Muslim family.

•    He is an Iranian citizen and does not have a right to reside in any country other than Iran.

•    He departed Iran legally via the Khomeini International Airport on 16 June 2013 using a genuine passport and arrived in Australia on 13 July 2013.

•    At around the age of 22 (in around 2006) he stopped believing in Islam. He does not currently practise any religion. He fears that if he is returned to Iran he may be subjected to harm, including death, as the punishment for non-believers is death.

•    In June 2012 he was questioned by the Ettela’at about a birthday party that he had held in his fast food shop; he was asked why men and women were together and accused of having alcohol at the party. The Ettela’at accused him of being a non-believer of Islam, promoting ideas contrary to Islam and distributing anti-Islam pamphlets to customers. Ettela’at officers took his laptop and searched through it. They also searched his home. He believes that the Ettela’at had been keeping track of him for some time and had recorded his conversations.

•    The Ettela’at interrogated him several times over several days and then imprisoned him for four days. His aunt used her home to post bail for him.

•    The greatest harm he experienced in Iran was the closure of his business. The Ettela’at prevented him from being able to continue to operate his fast food shop and he had to sell everything and close the business.

•    He did not seek help in response to the harm he experienced because there were no other authorities that he could seek help from.

•    He was forced to leave Iran because he was being persecuted by the Ettela’at for having ideas that were contrary to Islam and for being a non-believer.

•    He fears return to Iran and believes he will be killed by the Ettela’at because the punishment for non-believers in Iran is death.

•    He does not believe that he will be able to seek help from anyone in Iran if he is returned, as it is the authorities who are trying to harm him.

•    He would not be able to relocate to another part of Iran because the Ettela’at is very well-connected throughout Iran and they would be able to find him and continue to persecute him.

4    The IAA did not accept that the appellant had been interrogated and imprisoned by the Ettela’at (or the Ministry of Intelligence of the Islamic Republic of Iran) in June 2012 or that his laptop and home had been searched. It also did not accept that the Ettela’at had been keeping track of him and had recorded his conversations. These findings were not challenged before me.

5    The IAA considered the appellant’s lack of belief in Islam, which it called his “apostasy” or “agnosticism”. Its reasons concerning that issue appear at [31]-[38] below and need to be set out in full as follows (as they were by the learned primary judge):

31.    Country information states that under Iranian law a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. DFAT notes that the Penal Code does not specifically criminalise apostasy but provisions in the Penal Code and Constitution state that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. DFAT’s country report further states that death sentences in apostasy and blasphemy cases are now rare; however in March 2017 the Supreme Court upheld the decision of a criminal court to sentence a young man to death for apostasy. The man had been arrested after making social media posts considered to be critical of Islam and the Koran while he was undertaking military service in 2015. As at March 2018 the death sentence had not been carried out.

32.    In his protection visa application the applicant stated that he was of ‘no religion’ and in a statement attached to the claim explained that he stopped believing in Islam at around 22 years of age and he had numerous conversations with friends about his views.

33.    During the protection interview the applicant stated that he did not grow up in a particularly religious family. When asked by the delegate if he had renounced his Islamic faith or whether he was just a non-practising Muslim the applicant said that he largely considers all religions and faiths as a control over people and that he did not consider himself to be an advocate of any religion and specifically not Islam. When asked by the delegate whether he believes there is a God the applicant said that he did not see God in terms of “Hell and Paradise” but rather “a figure who is a source of internal energy” that is perceived “negatively or positively inside you as interior conscience”. The delegate noted that the applicant had commented earlier in the interview that he found himself an apostate at age 22. She asked if that was a title he had given to himself or given to him by others. The applicant said that apostate is a term given to those who have renounced their faith but he would actually call himself a secular humanist and believes in liberty of expression of faith. He said that when living in Iran he became fed up and disenchanted with religion, especially Islam, and its propaganda and promotion. The applicant said that he saw no reason to propagate and promote what he believed in and push his views on to others, although he did speak with immediate family members and close friends about his views. The applicant explained that he was also careful about making comments on his views about religion in public because his mother had asked him not to discuss his views as [he] was [her] only remaining child and did not want him to come to the attention of authorities.

34.    I found the applicant’s explanation of his religious views and anti-Islam sentiment to be consistent and genuine and his explanation for not making his views publicly known to be plausible. I accept that he does not follow the Shia Muslim faith or any other faith, and that his belief system is best described as agnostic.

35.    The applicant has not been part of any anti-Muslim groups in Iran or Australia and he has not provided any information that indicates he has made his lack of support for religion publicly known or that he wishes to do so. On his own account, the applicant has largely been able to incorporate his agnosticism and non-adherence to Islam into his daily life in Iran without coming to the ongoing attention of authorities for not following the Muslim faith. He has never acted in a way to deliberately bring attention to his views in a public setting. The applicant has not provided any evidence that suggests he intends or wishes to publicly express his views regarding religion in either Australia or Iran more than he has in the past. On the contrary, he has intentionally kept his views about religion private.

36.    As stated earlier in this decision, based on the evidence before me I am not persuaded that the applicant was interrogated by the Ettela’at and imprisoned in June 2012 due to accusations of serving alcohol during a party, promoting ideas contrary to Islam or distributing anti-Islamic pamphlets to customers. Given his longstanding tendency to keep his religion views private, I am also not satisfied that the applicant was interrogated and imprisoned by the Ettela’at during this period due to his religious views, including his non-belief in Islam.

37.    The applicant has not provided any evidence that he is of ongoing interest to any religious groups or authorities in Iran as a result of his religious views. He was able to obtain a passport in approximately June 2012 and depart Iran legally in June 2013 without being questioned by authorities or religious groups about a year after his claimed interrogation and imprisonment by the Ettela’at. I consider that authorities would have been able to track and locate the applicant prior to his departure if he was a person of ongoing interest to them.

38.    The applicant’s concerns about fearing harm by authorities in Iran due to his agnosticism are not supported by the current DFAT report, especially given his lack of activism and public comment in relation to religious opinion. I find the applicant would be able to continue to privately adhere to his agnosticism and non-support of Islam if he were to return to Iran and that he does not face a real chance of harm for being agnostic. I am not satisfied that the applicant is a person of interest to Iranian authorities or religious groups due to his agnosticism.

(Footnotes omitted.)

6    There are two key findings in the foregoing reasons which should be noted:

(a)    first, that the appellant had also said that his mother had asked him to be careful about speaking out about his religious views because he was her only remaining child and she “did not want him to come to the attention of authorities”; and

(b)    secondly, that the appellant would be able to continue privately to adhere to his agnosticism and non-support of Islam if he were to return to Iran.

7    The IAA ultimately affirmed the delegate’s decision and decided that the appellant did not satisfy either s 36(2)(a) or (aa) of the Act. Overall, it concluded at [45] as follows in relation to s 36(2)(a):

In considering the applicant’s other claims and evidence as a whole, I am not satisfied that there is a real chance of the applicant facing any harm now or in the reasonably foreseeable future if he was to return to Iran, including due to apostasy and agnosticism, being a failed asylum seeker from a western country, or any combination of these or any other factors. I find that the applicant does not have a well-founded fear or persecution within the meaning of s.5J of the Act.

8    The same conclusion was reached in relation to the application of s 36(2)(aa).

The Federal Circuit Court

9    The appellant’s legal representative below relied upon the decision of the High Court in Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. In that case, the protection visa applicants claimed they feared persecution in Bangladesh because of their homosexuality. The then Refugee Review Tribunal decided that it was not possible for the applicants to live openly as homosexuals in Bangladesh but nonetheless held that if they lived discreetly they would avoid being harmed. The essence of that decision was subsequently summarised by French C.J., Hayne Kiefel and Keane JJ. in Minister for Immigration and Border Protection v. SZSCA (2014) 254 CLR 317 at 325 [17] as follows:

The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.

(Footnote omitted.)

10    The appellant submitted that the same error had occurred here when the IAA found that he could live safely in Iran, so long as he only privately adhered to his beliefs. The learned primary judge did not agree with that submission. Appellant S395/2002 was distinguished by his Honour at [23] as follows:

The present case is not one where, as in S395, the tribunal improperly dealt with the factual questions before it. In the present case, the Authority has properly identified that there was no reason to believe that the applicant, if returned to Iran, would do anything differently from what he did either prior to his departure from Iran, or since his arrival in Australia, relating to his agnosticism. The Authority found at [39] of its reasons that the applicant did not face a real chance of harm on return to Iran on the basis of such agnosticism, and it was entitled to do so.

11    On that basis, and for other reasons not pursued before me, the primary judge accordingly decided that the IAA had not made a jurisdictional error in dealing with the appellant’s claims based upon his apostasy.

Ground of Appeal

12    The singular ground of appeal was as follows:

The Federal Circuit Court of Australia erred in failing to find that the Second Respondent fell into jurisdictional error by failing to properly apply s5J of the Migration Act 1958 (Cth) (the Act).

The Appeal

13    The appellant submitted that the IAA had erred when it decided that his claim to fear persecution was not well-founded because he did not proselytise his apostasy. It had never turned its mind, it was said, to consider whether that fear had caused or contributed to the appellant’s long-standing practice of keeping his religious beliefs private. There was evidence that a fear of persecution lay behind his reason for not promoting his apostasy. That evidence was his mother’s advice, set out above, which, it was said, he acted upon.

14    The Minister submitted that the IAA had made no finding to the effect that the appellant would avoid persecution by acting discreetly. Rather, it was said, the IAA found that if he were returned to Iran, he would continue to adhere privately to his agnosticism for reasons other than a fear of persecution, in particular, because he had no interest in expressing his views publicly. Those other reasons were summarised by the Minister in his written submissions as follows:

Contrary to the appellant’s submission that the IAA failed to consider the reason for his ‘long standing tendency to keep his religion views private’ in light of his evidence concerning his mother’s wishes (at [22]), the IAA’s decision clearly demonstrates that it did, in fact, consider why the appellant had not made his views with respect to his agnosticism publicly known. The IAA decision reveals the appellant’s own evidence that he did not consider himself to be an advocate of any religion and saw no reason to propagate and promote what he believed in (AB2 186–187: [33]). The IAA considered this explanation, found it to be plausible and noted that the appellant had been able to incorporate his agnosticism into his daily life in Iran without coming to the attention of authorities and had intentionally kept his views about religion private (AB2 187: [34]–[35]). The appellant never claimed that he had acted discreetly with respect to his agnosticism so as to avoid persecution, nor that acting in this manner was of itself persecutory harm.

15    The Minister referred to a decision of Rangiah J. in SZVZL v. Minister for Immigration and Border Protection [2018] FCA 1299. In that case, the applicant claimed to fear harm if returned to Iran on the basis of, amongst other things, his real and imputed political opinions about a separate Kurdish state and his Kurdish ethnicity. The Tribunal rejected that applicant’s claims because it was not satisfied that he had any political convictions and thus would not engage in political activities if returned to Iran. The decision in Appellant S395/2002 was distinguished by Rangiah J. At [19]-[20], his Honour said:

In the present case, the Tribunal’s finding that it was not satisfied that the appellant faced any real chance of persecution in Iran was not based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups. Instead, the Tribunal was satisfied that the appellant “would not wish to continue to engage in such groups should he return to Iran”. That finding was based upon the Tribunal’s satisfaction that the appellant “lacks any real interest” in Kurdish political organisations and its lack of satisfaction that he had “any political (or other) convictions, that would give rise to a real chance of persecution in Iran”. Those matters, in turn, reflected the Tribunal’s earlier findings that the appellant’s involvement in protests in Australia had been limited and that he had not been truthful in his claims to have been involved with the [Kurdish Democratic Party] in Iran.

The Tribunal did not suggest that the appellant was not at risk of harm because he could avoid persecution by being discreet in the expression of his political opinions. Rather, the Tribunal found that the appellant would voluntarily choose to not engage in political protests in Iran, not because of fear, but because he had no interest in doing so. The Tribunal considered what might happen to the appellant if he returned to Iran, as it was required to do, as part of its consideration of whether the appellant faced a well-founded fear of persecution. The primary judge was correct to hold that the Tribunal had made no error in its consideration and application of Appellant S395/2002.

16    In contrast, Mr Black of Counsel, who appeared for the appellant, referred to another decision of Rangiah J. In ESD17 v. Minister for Immigration and Border Protection [2018] FCA 1716, the applicant feared harm if returned to Iran because he had concealed the fact that he had in the past been sexually abused. Rangiah J. said at [34]:

In the present case, the Authority accepted that if the appellant’s sexual abuse as a child were exposed, he would be at risk of serious harm in Iraq. It found, however, that the appellant would remain silent about his sexual abuse and, in that way, avoid harm. The Authority made the error of failing to ask whether the appellant would remain silent in order to avoid the risk of persecution. If that question had been asked, and the answer was that he would remain silent because he feared that he would be harmed if he revealed the sexual abuse, s 5J(1)(b) may have been satisfied, depending upon the Authority’s findings concerning any “real chance” that the appellant would be “persecuted”.

17    Mr Black submitted that the same, or at least an analogous, error of law had been made here.

18    Mr Psaltis of Counsel, who appeared before me for the Minister, submitted that Appellant S395/2002 was distinguishable. He submitted that the country information set out at [31] of the IAA’s decision indicated that an apostate would only fear harm in Iran if she or he spoke out about their beliefs. Otherwise death sentences in apostasy and blasphemy cases “are now rare”. The case cited in the country information concerned a man “arrested after making social media posts considered to be critical of Islam and the Koran”. There was no evidence, it was said, that the appellant was going to do anything like this. In essence, the appellant, it was contended, was not religious. As such, there was no reason to expect him to promote something he had little interest in, whilst in Iran.

19    Mr Psaltis referred the Court to the decision of the High Court in Applicant NABD of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 where the majority upheld a decision of the then Refugee Review Tribunal that had found that the applicant in that case would not face persecution in Iran because his past practice had not been to broadcast his Christianity or conspicuously proselytise. Hayne and Heydon JJ. explained Appellant S395/2002 in the following terms at 582 [162]:

In Appellant S395/2002, the tribunal was held to have erred by dividing the genus of homosexual males in Bangladesh into two groups — discreet and non-discreet homosexual males. That led, in that case, to the Tribunal assigning the appellants to the former group, without it considering how the appellants wished or intended to behave if returned to Bangladesh. Moreover, the classification which was adopted was one which appeared to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. More fundamentally, however, the reasoning adopted by the Tribunal in that case revealed that it had not made the essentially individual and fact-specific inquiry which is necessary: does the applicant for a protection visa have a well-founded fear of persecution for a Convention reason?

(Footnote omitted.)

20    Their Honours concluded at 583-584 [166]-[168] as follows:

In the present case, the tribunal made findings about the way in which the appellant had hitherto practised his faith and about what he would choose to do in Iran. It accepted that he had discussed Christianity with other detainees but it did not accept that his activities since leaving Iran “constitute[d] active attempts to convert others through proselytism as distinct from quiet sharing of his faith”. It concluded that he would not “choose to generally broadcast his practice of Christianity or conspicuously proselytize in Iran”. It found that “any decision to avoid proselytizing in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices”. And, as noted earlier, it found that he was not constrained in the practice of his faith “nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution”.

The tribunal related its conclusions to the information it had about conditions in Iran. That information drew a distinction which, whatever its difficulties and imperfections, the Tribunal had to consider. It concluded that the appellant’s conduct in Australia, if continued in Iran, was properly described as not being proselytizing or actively seeking attention. That is, the Tribunal concluded that the appellant’s conduct would fall wholly within one of the descriptions of conduct given in the information it had about treatment of Christians in Iran.

At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.

21    Mr Psaltis submitted that the foregoing passages showed that evidence of an applicant’s past discreet practice of Christianity in Iran could support a prediction that such an applicant could continue to practice his faith in that way if returned to that country.

22    I make two observations. First, the key to Appellant S395/2002 is that the Tribunal had not considered whether the reason why the applicants had lived discreetly was because they feared persecution. As Gummow and Hayne JJ. said at 503 [88]:

The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.

23    Earlier, at 501 [82], Gummow and Hayne JJ. made it clear that the Tribunal had no power to direct how an applicant might live in another country. Their Honours said:

Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.

24    Mr Black recognised that Appellant S395/2002 turned upon a failure by the Tribunal to ask whether the applicants in that case only lived discreetly because they feared persecution. He submitted that the IAA had made the same error here. That error could be seen in the last sentence of the reasons at [33]: it was not clear whether the additional reason for not making “comments on his views about religion in public” arose from fear of persecution or from respect for the wishes of the appellant’s mother. It followed, it was said, that the IAA had failed to make a positive finding that the appellant had lived discreetly because of reasons other than fear of persecution. In other words, it expressly did not find that he had voluntarily lived inconspicuously.

25    Secondly, Appellant S395/2002 concerned the Act before the amendments made to it by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Those amendments included the introduction of s 5J(3) of the Act, as set out above. Here, it was not suggested that the IAA had relied upon s 5J(3) to determine that the appellant did not have a well-founded fear of persecution. The IAA did not decide that the appellant could modify his behaviour to avoid a real chance of persecution. Rather, the findings it made about the likelihood of persecution were based upon the appellant continuing to behave as he had in the past in Iran.

26    On balance, and with respect to Mr Black, in my view the IAA did not ask the wrong question for the purposes of s 5J of the Act. It did not seek to impose on the appellant a requirement that he should behave discreetly to avoid the risk of harm. Nor did it make an assumption that he would behave in that way. Rather, the IAA judged the risk of harm based upon its finding that the appellant would continue to behave as he had. The principal reason why the appellant had behaved discreetly was his own belief that religion acts a “control over people” and that he did not consider himself to be “an advocate of any religion and specifically not Islam”. For him, God was “a source of internal energy” perceived “inside” a person as “interior conscience”. The appellant is a “secular humanist” who believes “in liberty of expression of faith” but who sees no reason to “propagate and promote” his views. These are the primary reasons for explaining the appellant’s discretion. They demonstrate that the appellant’s behaviour in Iran was not the product of fear, but of his personal values. It was voluntary in nature. In that respect, the evidence did not show that the mother’s advice had caused a modification of the appellant’s way of life in Iran. It did not silence him. Rather, it was just another reason for the appellant’s existing inconspicuous behaviour with respect to his agnosticism.

27    For these reasons the learned primary judge correctly distinguished Appellant S395/2002. This appeal should be dismissed with costs as agreed or as assessed.

Associate:

Dated:    4 December 2019