Federal Court of Australia

CPK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 820

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

Introduction

1    This is an appeal from CPK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1100, a decision of what was then the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) by which the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

2    The second respondent, the Tribunal, filed a submitting notice save as to costs and has taken no part in the appeal.

Conclusion in Summary Form

3    For the reasons which follow, the appeal is dismissed.

Background

4    The appellant is an Iranian national. He arrived in Australia on 24 November 2014 as the holder of a student visa and applied for a protection visa on 20 July 2015.

5    The appellant’s claims for protection arise principally from his asserted conversion from Islam to Christianity during his time studying abroad in Malaysia and his subsequent baptism in Australia. The appellant in his application and subsequent submissions to the Department of Immigration and Border Protection claimed protection on the basis that he feared being killed if he returned to Iran because he is now a practicing Christian.

6    The appellant relevantly claimed that he was born into a strict Muslim family and had to follow religious observances at school. He says he hated pretending to be Muslim and his disgust with the religion caused him to struggle with his mental health.

7    In September 2010 he moved to Kuala Lumpur, Malaysia. He says he remained anti-religious and anti-Islam but that his interest in Christianity grew after he says he befriended a Christian Malaysian student at his university, Abraham Lee. The appellant says he was invited to attend church by Mr Lee and after doing so, the appellant claimed that he had “found serenity he had never felt before”. He says he began to research, study and follow Christianity. While in Malaysia the appellant contends that he practiced as a Christian in private and did not tell his family.

8    In March 2014 he returned to Iran for a short time. He says that he was forced into an arranged marriage to the daughter of an extremist Muslim. He subsequently obtained a student visa to study in Australia and left Iran in November 2014.

9    While in Australia he attended two churches and was baptised on 21 June 2015 at the Liberty Baptist Church. He says he inadvertently revealed his Christian faith to his parents in a phone call. He says his parents were angry and his father said he would stop financially supporting him.

10    On 19 July 2016, the delegate refused to grant the appellant a visa on the basis that the appellant did not satisfy the relevant criteria in s 36 of the Act.

11    The appellant sought review of the delegate’s decision in the Tribunal. On 3 June 2019, the Tribunal affirmed the decision not to grant the appellant a protection visa and delivered reasons (T).

Tribunal’s Decision

12    The Tribunal first summarised the appellant’s claims for protection and his personal and family background before moving to consider whether he was a person to whom Australia owed protection obligations under s 36(2)(a) and (aa) of the Act, being the refugee criterion and complementary protection criterion respectively.

13    The Tribunal found that the appellant’s evidence regarding his claims for protection lacked credibility and that he was not a reliable, credible or truthful witness. The Tribunal accepted that the appellant had attended the Granville and Liberty Baptist churches in Australia, had been baptised at the latter and attended bible classes, but found that the appellant’s conduct was deliberately and solely directed to strengthening his claim for a visa (T[70]). The Tribunal further found that the appellant’s conduct in attending church and church related activities, including undertaking education and being baptised, was for the sole purpose of strengthening his claim for a protection visa. As a result, the Tribunal disregarded that conduct when determining whether the appellant had a well-founded fear of persecution in accordance with s 5J(6) of the Act: (T[70]–[71]).

14    Largely on the basis of its assessment of the appellant’s motivation, credibility and the veracity of his claims, the Tribunal did not accept that the appellant’s conversion to Christianity was genuine (T[54]–[55], [70]–[72]). Key to the Tribunal’s conclusion in that regard were two things. First, that the appellant’s claim that his hatred of Islam caused him to suffer mental health issues was unsupported by corroborative evidence and inconsistent with the absence of evidence of any treatment during the four and half years he had been in Australia. Accordingly, the Tribunal gave the appellant’s claim to have suffered depression when in Iran “little weight”: T[53]. Secondly, the Tribunal considered the appellant not to be a reliable, credible or truthful witness and that his evidence regarding his claims lacked credibility: (T[54]). The Tribunal found the appellant’s “lack of truth” in describing his prior interest in Christianity and his deliberate and targeted approach to becoming baptised in Australia indicated that his claim to have converted to Christianity was contrived: (T[55], [70]–[72]).

15    At the hearing of the appellant’s application, the Tribunal questioned him regarding his choice to study in Malaysia, a majority Muslim country, if Islam caused him psychological issues. Although the Tribunal took into account the appellant’s explanation that he chose Malaysia because it was the closer and easier option, it lent that evidence little weight (T[56]). The Tribunal found that the appellant’s explanation lacked credibility because if he detested the Islamic faith as much as he claimed he would not voluntarily go to a Muslim-majority country to study at a campus with lots of Iranians and strict Malaysian-Muslims when he could have waited a little longer for an application to a non-Muslim country to be submitted and approved (T[57]).

16    The Tribunal did not accept that the appellant attended Baptist churches whilst studying in Malaysia nor that he was assisted in his faith journey by someone called Abraham Lee (T[58]). The Tribunal found the appellant’s evidence regarding his interest in Christianity in Malaysia lacked credibility.

17    The appellant did not produce any evidence in support of his alleged faith journey save for emails exchanged between him and a representative of the Kuala Lumpur Baptist Church in which the appellant was seeking a letter of support from that church. A letter of support was not forthcoming — the email sent by the church in response indicated that further information was required to identify the appellant before a letter of recommendation could be provided (T[58]). It also struck the Tribunal as strange that the appellant claimed to have attended church twice a month for three years but had never attempted to undertake any formal education in Christianity (T[60]). The Tribunal further noted that there was a “complete lack of correspondence between the applicant and Abraham Lee, the English-speaking, sociable Baptist Malay-Chinese who allegedly introduced the applicant to Christianity and was a close friend for three years” (T[62]).

18    As to the appellant’s evidence of his practice of Christianity in Australia, the Tribunal found that the appellant’s actions were “not indicative of someone seeking to explore or understand the new faith before committing to it”. The Tribunal’s findings in relation to the appellant’s baptism are central to the appeal and are extracted in full (at T[64]–[73]):

64     The applicant’s actions once in Australia are also not indicative of someone seeking to explore or understand the new faith before committing to it. He began attending the Anglican church at Parramatta because there were Iranians there and he wanted to go to a place where there were other Iranians. He then went to the Liberty Baptist Church at North Rocks where he was baptised.

65     The Tribunal is aware that that Liberty Baptist Church is well-known amongst the Iranian community as a place where the pastor will baptise them quickly without much by the way of verifying their level of genuine Christian faith, and that more than 900 Iranians had been baptised here. There also appears to be a degree of urgency in the applicant’s rush to faith once in Australia that was driven more by his desire to apply for a protection visa than by any commitment to a Christian faith.

66     Despite having spent three years allegedly going to church in Malaysia but never seeking to be baptised, he was baptised seven months after coming to Australia. I do not accept that this was because he was taking things slowly in Malaysia but his faith strengthened in Australia, as he didn’t provide any evidence of an extended period of instruction once he came to Australia, save for some short classes at the Liberty Baptist church.

67     Despite claiming that his application for protection was not close to his baptism date, I note that he signed some of his protection visa application documents on 15 and 17 June 2015, he was baptised on 21 June 2015 and the application was received on 21 July 2015. This is indicative of a strong circumstantial link between the desire to be baptised and the submission of a protection visa, and reinforces the Tribunal’s concerns about the targeted and deliberate nature of his Christian conversion.

68    I have taken into account the letter of support provided by Pastor Keith Piper from the Liberty Baptist Church attesting to the applicant’s true Christian faith but I lend it little weight. Pastor Piper has accepted at face value the applicant’s claims of genuineness of faith which I have found to be fabricated. I have already noted the ease with which the pastor is willing to baptise Iranians at his church without doing any due diligence checks on their backgrounds, and the Tribunal has concerns that there may be a belief that joining this church and getting baptised is a means for establishing refugee claims for Iranian asylum seekers.

69    I have also taken into account the evidence given by Pastor Ross Callaghan and the letter of support from Mr Geoff Reid (folio 84) and while I accept that both were genuine in their views, I lend them little weight. Both have taken at face value claims that the Tribunal has found to have been fabricated and their opinions naturally reflect this.

70    That having been said I accept that the applicant has attended the Granville and Liberty Baptist churches in Australia, has been baptised at the latter, and attends bible classes. I find that the actions regarding this church attendance, attendance at religious education and activities, and baptism, have been done deliberately and with the sole purpose of improving his refugee claim.

71    As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.

72    Because I have found that the applicant is not a genuine Christian convert, it follows that he has not told his relatives or friends in Iran, would not proselytise, never downloaded a Farsi bible or tried to enter a church in Shiraz and therefore he would not be imputed with a Christian religious identity on return to Iran.

73    I also do not accept that the applicant had to finish his university studies after one and a half terms because his family stopped financially supporting him once they became aware of his conversion. I have already indicated that I don’t believe his family believes that he has genuinely converted, and he failed to produce the transcripts of his academic study in Australia post-hearing even though he was asked to do so.

19    The Pastor’s letter, written by Pastor Piper of the Liberty Baptist Church in support of the appellant’s claim, which is addressed at T[68], is of central relevance to the present appeal.

20    In addition to considering the appellant’s claims of fear of persecution due to religious conversion, the Tribunal, on its own initiative, considered claims of risk of harm arising from the appellant being a failed asylum seeker and the appellant’s alleged forced marriage to the daughter of an extremist Muslim. Notwithstanding no direct claims were made on these bases, the Tribunal considered these issues, including for the sake of completeness (T[74]). The Tribunal found, based on country information, that Iranian authorities pay little attention to failed asylum seekers and that the appellant faced no risk of harm in this respect (T[74]–[75]). In addition, the Tribunal found that as the Iranian government had indicated it would not accept the return, on an involuntary basis, of failed asylum seekers, it was not satisfied that the appellant would be returned to Iran either now or in the reasonably foreseeable future. As the appellant produced no evidence of any marriage and claimed in his application that he had never been married, the Tribunal did not accept that the appellant was married to the daughter of an extremist Muslim or that this would cause him to fear serious harm on return to Iran (T[77]). Similarly, the Tribunal did not accept that the appellant came from a strict religious family (T[76]).

21    The Tribunal concluded that the appellant’s claims, both singularly and cumulatively, failed to establish a well-founded fear of persecution (T[79]).

22    The Tribunal then moved to consider whether the appellant satisfied the complementary protection criterion in s 36(2)(aa) and found that the appellant did not, having not established that he faced a real risk of significant harm if returned (T[80]–[82]). In considering the complementary protection criterion, the Tribunal reiterated its finding that the appellant’s conversion to Christianity was not genuine and, accordingly, on return he would not be exposed to a real risk of significant harm due to activities related to his alleged Christian faith (T[80]–[81]).

Primary Judge’s Decision

23    In order to explain my references to the primary judge’s reasons (PJ), I note at the outset that there is a minor paragraph numbering error in the primary judge’s reasons. The paragraph numbering is as follows: [1] to [24], [1] (second occurring), [1] (third occurring), [2] to [24] (second occurring) and [25] to [38].

24    Grounds 1 and 2 of the appeal in this Court were grounds 2 and 3 of the judicial review application before the primary judge. The appellant contends that the primary judge erred in not accepting those grounds.

25    Before the primary judge, the appellant raised a ground of review that the Tribunal’s decision was attended by jurisdictional error because findings of fact were made without any logical or probative basis. That ground, which I will refer to as the “no evidence ground”, was not pursued on appeal. However, one of the submissions made in respect of that ground in relation to the Pastor’s letter was repurposed to support ground 1 of the appeal — that the Tribunal failed to consider in the requisite way the Pastor’s letter. For this reason, the primary judge’s reasoning at PJ[19] (second occurring) is relevant to ground 1 of the appeal:

The Tribunal’s findings at paragraph 68 of its decision necessarily entailed a rejection of Pastor KP’s contrary written evidence being that he “tested the genuineness of (the applicant’s) salvation by making eight observations” and that he had spent many hours with the applicant individually and in group sessions “that prove his total genuineness”. The Tribunal impliedly rejected those statements, preferring to rely upon its own body of knowledge, as put to the applicant at the hearing concerning Pastor KP’s “reputation”. The weight that the Tribunal gives to a particular competing body or item of evidence is a factual matter for it.

26    The first of the relevant review grounds before the primary judge was that the Tribunal committed jurisdictional error by failing to consider and/or by failing to give genuine, proper and realistic consideration to evidence concerning the genuineness of the appellant’s conversion to Christianity and specifically to the Pastor’s letter.

27    The primary judge’s conclusion in relation to this review ground was as follows:

32    Ground two alleges the Tribunal failed to give proper, genuine and realistic consideration to Pastor KP’s letter. That claim cannot succeed. The Tribunal clearly considered the material but rejected the views proffered by the Pastor for the reasons given. A Tribunal does not have to accept, uncritically, any and all claims made by an applicant, nor does it have to possess rebutting evidence before holding that a particular assertion is not made out: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at [348]. Further, the Tribunal is under no obligation to give a line by line refutation of every item of evidence: see Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 74 ALJR 405 at [65].

28    The second of the relevant review grounds was that the Tribunal’s decision was affected by jurisdictional error because it was affected by actual or apprehended bias. The allegation of bias focussed on the Tribunal’s comments in respect of Pastor Piper and the Liberty Baptist Church.

29    The primary judge regarded comments made by the Tribunal about Pastor Piper and the Liberty Baptist Church as “clearly infelicitous” (PJ[34]) but as falling short of giving rise to bias as alleged (at PJ[35]–[36]):

35     The Court is left to ponder whether the overall comments of the Tribunal member gives rise to an apprehension by a fair minded lay observer that the Tribunal member was not bringing a fair and impartial mind to the making of the decision. Using the four step process set out by Hayne J in Jia Legeng, first, it is clear that the Tribunal member had an opinion on the reliability of the evidence of Pastor KP. Second, it is clear that by placing no weight on the letter provided by Pastor KP, the Tribunal member applied that opinion to the matter in issue. The third issue is whether the Tribunal member did so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

36     The Tribunal member did not find against the applicant simply on the basis that he rejected the evidence of Pastor KP. There was a clear analysis of a number of other factual matters including the timing of the applicant’s baptism as well as the lack of objective evidence of his involvement with the Christian faith while in Malaysia. The Court is satisfied that it was these matters that ultimately led the Tribunal to the conclusion that it did, that the applicant was not a genuine convert to the Christian faith. In these circumstances, the Court is not satisfied that the reasonable lay observer would determine that the Tribunal member had prejudged the issue. Rather, the Tribunal member gave a basis for why he gave no weight to the evidence of Pastor KP and was able to provide a rational and logical basis for the conclusion that he did based on the totality of the evidence.

Grounds of Appeal

30    The notice of appeal raises two grounds of appeal as follows (as written):

The Federal Circuit Court erred in not accepting Grounds Two and Three below, alleging that:

1. (Ground 2 below): Ground 2: The Tribunal committed jurisdictional error by failing to consider and/or by failing to give genuine, proper and realistic consideration to evidence concerning the genuineness of the applicant's conversion to Christianity.

Particulars:

a) The Tribunal failed to consider evidence given by the pastor of the Liberty Baptist Church to the effect that the pastor had spent many hours personally with the applicant and in group sessions with him that proved the genuineness of the applicant's conversion to Christianity.

b) The Tribunal's failure to have regard to this evidence infected the Tribunal's reasoning processes and caused the Tribunal to reject the applicant's claims to have a well-founded fear of persecution on religious grounds.

2. (Ground 3 below): The Tribunal's decision was affected by actual or apprehend bias, and for that reason was affected by jurisdictional error.

Particulars:

a) The Tribunal was fixed in its view that Pastor K was not able to give reliable evidence as to the genuineness of the conversion of the applicant.

b). That was egregious in the circumstances where (I) the only apparent reason for that belief was a statistical analysis of the pastor's prior baptism of "Iranians" (an inflammatory term given the ethnic diversity of people from Iran and that some of them claimed to have been persecuted by the Iranian state0; (ii) that statistical analysis assumed, clumsily and inappropriately, rather than analysed, that those past baptisms were not genuine converts to Christianity; (iii) there was before the Tribunal, and not assessed in any meaningful was, a detailed explanation of why the pastor considered that the appellant's conversion was genuine.

c) The refusal to countenance evidence from the pastor about this key evidence was so significant to the review that the Tribunal member had closed his mind to a key issue and displayed actual bias.

d) Alternatively, it gave rise to a reasonable apprehension of bias.

31    Although ground 2 alleges that the Tribunal’s decision was affected by both actual and apprehended bias, in his submissions the appellant withdrew the allegation of actual basis. Apart from the scope of the bias ground being confined in this way, the appeal grounds essentially repeat the review grounds pressed before the primary judge. The primary judge’s conclusions in rejecting the appellant’s submissions in respect of the grounds which are now advanced on the appeal are extracted at [25], [27] and [29] above. The appellant’s submissions on appeal essentially repeat the submissions advanced before the primary judge, which are summarised by the primary judge at PJ[3] to [5] (second occurring). The submissions summarised at PJ[3] (second occurring) were made below in respect of the no evidence ground of review but are presently relevant to the first ground of appeal. The “face value” finding is now the focal point of the allegation that the Tribunal failed to consider the Pastor’s letter in the requisite legal sense. The appellant’s approach on appeal focuses on the Tribunal’s reasons without engaging with the primary judge’s reasons for dismissing substantially similar arguments below. The appellant has not addressed error on the part of the primary judge other than as a bald assertion of error in the chapeau to grounds 1 and 2 of the Notice of Appeal. I infer that the appellant is, in effect, contending that the primary judge erred by misconstruing the Tribunal’s reasons.

Legal Principles

General: judicial review

32    It is well-established that the Tribunal’s statement of reasons must be read fairly in the context in which they were delivered and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280,287.

Ground 1: requisite level of engagement     

33    By ground 1, the appellant contends that the primary judge erred in not accepting that the Tribunal had failed to consider important evidence, in the requisite legal sense. The ground is framed as a failure to give “genuine, proper and realistic consideration” to evidence concerning the appellant’s religious conversion. The appellant’s submissions focus on a failure to give “active intellectual engagement”. The appellant relies on Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [36] in which the Full Court summarised a number of key points in respect of the exercise of the decision-making function under s 501CA(4).

34    The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 was delivered after the hearing of the present appeal. In Plaintiff M1/2021, the plaintiff and the Minister agreed to state questions of law for the opinion of the Full Court of the High Court. The primary question presented by the special case was whether, in deciding whether there was “another reason” to revoke a cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act, the decision-maker was required to consider the plaintiff’s representations which raised a potential breach of Australia’s international non-refoulement obligations in circumstances where the plaintiff was able to make a valid application for a protection visa. The present appeal does not concern representations which raise the issue of non-refoulement in the context of an application for revocation under s 501CA(4)(b) of a mandatory visa cancellation. The decision in Plaintiff M1/2021 is relevant to the present appeal because in answering the stated questions the majority cautioned against using labels such as those which inform this appeal — “proper, genuine and realistic consideration” and “active intellectual process” — without adequate regard to the proper context in which those phrases have been used in previous authorities. To do so risks introducing a de facto gateway to merit review (at [24]–[27]).

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(footnotes omitted)

35    The observations in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] highlight the risk of slipping into impermissible merits review (at [45], Basten JA and Allsop P (as his Honour, the Chief Justice, then was) agreeing):

The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79]. If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, “to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the appellant] natural justice”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]-[88] Kirby J), applied by this Court in Spanos v Lazaris [2008] NSWCA 74 at [19], in my judgment, Beazley and Bell JJA agreeing. Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.

Ground 2: apprehended bias

36    By ground 2, the appellant contends that the primary judge erred in not accepting that the Tribunal’s reasons were affected by apprehended bias. The Full Court summarised the relevant principles in relation to apprehended bias in an administrative decision-making setting in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; 284 FCR 455 at [89]–[93], noting that the principles are relatively well-settled. This appeal is concerned with questions of application and not principle.

37    The appellant must demonstrate that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the review: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [17] (Kiefel CJ and Gageler J); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344[6]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 at 989-990 [27]–[28]. The purpose of combining the “double might” with the construct of the hypothetical “fair-minded lay observer” is to stress that the bias rule is concerned as much to preserve the public appearance of “independence and impartiality” on the part of the decision-maker as it is to preserve the actuality: CNY17 at [18]. The requisite independence is decisional independence, most importantly from influence by the executive. The requisite impartiality is objectivity in the finding of facts, in the exercise of procedural discretions, and in the application of the applicable legislated criteria for the grant or refusal of a protection visa: CNY17 at [18]. In essence, the test involves two stages. First, identifying what it is that might lead the decision-maker to determine a case other than on its legal and factual merits. Secondly, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits: CNY17 at [57] (Nettle and Gordon JJ).

38    In applying the test for apprehended bias, it is necessary to consider the legal, statutory and factual contexts in which the decision is made, what is involved in making the decision, and the identity of the decision-maker: CNY17 at [58]. The fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision, and the context in which it was made. Further, where the statutory context is complex, the fair-minded lay observer is imputed to have, at least, knowledge of the key elements of that scheme: CNY17 at [59].

39    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J observed that there are four elements that form the prerequisites to a conclusion of apprehended bias (at [185]):

Saying that a decision maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.”

40    In the context of the present appeal, it must be borne in mind that the Tribunal is not bound by the rules of evidence and is permitted to have regard to its store of developed knowledge: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 at 969[7], 970[12], 988[116], 1010[263], 1015[291], 1016-1017[300]. In Jia Legeng, in relation to the then Refugee Review Tribunal, Hayne J observed (at 562- 563[180])

...[a] body like the Refugee Review Tribunal, unlike a court, is expected to build up “expertise” in matters such as country information. Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.

41    In Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223, Rares and Jagot JJ observed (at [38]–[39]):

38    The mere fact that a decision-maker has previously expressed a view on the same or a similar subject does not, of itself, give rise to an apprehension that he or she will not bring a fair and impartial mind to the new decision to be made: see for example in relation to judges Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. After all, decision-makers can be expected to apply the law and relevant policies in a consistent and predictable way. Likewise, decision-makers in the position of a reviewer or administrative official frequently will have to decide the same issues raised by different persons in separate applications including when a number of persons make generic claims. A decision-maker must have a fair and unprejudiced mind when he or she comes to decide a question including one concerning a generic claim that he or she has addressed on another occasion. However, that does not mean that he or she must have a blank or empty mind on the topic. As Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554:

Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

39    And, in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] Gleeson CJ and Gummow J said:

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

Consideration

Ground 1

42    By ground 1, the appellant contends that the primary judge erred in not finding that the Tribunal failed to consider the Pastor’s letter, which supported the genuineness of the appellant’s conversion to Christianity, in the requisite legal sense of giving it “active intellectual engagement”, relying on Omar at [36].

43    The appellant submits that the Tribunal’s conclusion at T[68] that “Pastor Piper has accepted at face value the [appellant]’s claims of genuineness of faith…” is plainly wrong. The appellant points to the following part of the Pastor’s letter (emphasis in original):

I test the genuineness of his salvation by making eight observations:

1) Is he willing to confess with his mouth the Lord Jesus as his Saviour to another person according to the test in Romans 10:9? [CPK19] satisfies this test having told about 15 people outside our church that he has received the Lord Jesus Christ as his Saviour.

2) If a person is truly a Christian he will love fellow Christians enough to meet with them regularly at church each Sunday, as stipulated in 1 John 3:14 “We know that we have passed from death to life because we love the brethren." [CPK19] satisfies this test because he has faithfully and regularly attended our church since the date of his salvation.

3) If a person is a true Christian, he will reject his old religion of Islam as being false. [CPK19] satisfies this condition because he absolutely rejects Islam. He rejects Mohammad, considering him to be a false prophet and one of the most evil people that ever lived. He rejects the Quran as an evil book that commands killing, war, rape, theft, polygamy and slavery as God's laws.

4) If a person is a true Christian, he will be baptized by immersion as Jesus was (Mark 1:9-11). [CPK19] has satisfied this test at his baptism on 21st June 2015 where he declared to about sixty people that he is a Christian.

5) If a person is a true Christian, they will seek to live an honest life that avoids sinful activities. As far as I and other Iranians in our church are concerned, we have observed that he exhibits consistent Christian character, and so satisfies this test.

6) If a person is a true Christian, they will understand the basic Bible doctrines of salvation as set forth in the STOP pamphlet. Based on his answers to my questions, [CPK19] seems to have a good grasp of these doctrines as you would expect a Christian to have.

7) [CPK19] talks about the gospel to his family in Iran, but they reject his words.

8) If a person is a true Christian, he will seek the salvation of other people. [CPK19] satisfies this test because he has introduced one of his friends to me who also happily received Jesus Christ as their Saviour.

44    The appellant submits that this information comprising the Pastor’s testing of the appellant’s faith was worthy of being given probative weight. The appellant argues that in saying the Pastor had accepted his claimed faith “at face value”, the Tribunal either overlooked or misunderstood this evidence and while the Tribunal was not bound to accept the Pastor’s evidence, such evidence could not be rejected for the reason given by the Tribunal at T[68]. The appellant submits that “one might realistically think that a religious Minister’s assessment of one’s faith is a better judgment than that of a Tribunal member”: the appellant’s written submissions at [5]. The appellant contends that if the Pastor’s evidence was not overlooked or misunderstood, it could realistically (and probably would) have caused the Tribunal to accept the genuineness of the appellant’s Christian faith. In the appellant’s submission that would then have resulted in the Tribunal having to consider whether a genuine Christian convert faced a real chance of persecution if returned to Iran. Accordingly, the appellant submits that would give rise to a realistic prospect of the appellant obtaining a protection visa based on the country information in the DFAT Report for Iran.

45    Although framed as a failure to consider evidence in the requisite way, ground 1 reduces to a complaint about the weight the Tribunal gave to the Pastor’s letter. The ground must be rejected for substantially the same reasons as the primary judge rejected the corresponding review ground below. The Tribunal expressly considered the Pastor’s letter and explained why it gave the letter “little weight” (T[68]). The appellant seizes on the Tribunal’s description of the Pastor’s acceptance of the genuineness of the appellant’s faith as being made at “face value”. The appellant contends that the “face value” finding equates to a finding that the Pastor accepted the appellant’s claims without undertaking any due diligence. On that basis, the appellant submits that the Tribunal erred because in his letter, the Pastor outlines the eight ways in which he has tested the “genuineness of [the appellant’s] salvation”. No error has been demonstrated with the primary judge’s reasoning for rejecting this submission. The Tribunal’s use of the description — “at face value” — must be read in context, particularly with respect to the Tribunal’s findings about the appellant’s motivation for his conduct (at T[70]). The Tribunal found that the appellant’s “church attendance, attendance at religious education and activities, and baptism, have been done deliberately and with the sole purpose of improving his refugee claim”. Contrary to the appellant’s submission, the Tribunal’s reference to the Pastor’s acceptance being at “face value” does not equate to a finding that the Pastor did not undertake any due diligence in respect of the genuineness of the appellant’s faith. Read fairly and in context, the Tribunal described the Pastor’s assessment as being at face value because it was not informed by reference to the totality of the material which was before the Tribunal and which the Tribunal regarded as relevant when assessing the appellant’s motivation for his conversion. The Tribunal found that the Pastor’s assessment of the issue of the genuineness of the appellant’s conversion was based on accepting the bona fides of the appellant’s conversion without examining the appellant’s underlying motive. It is in this sense that the Tribunal’s description of the Pastor’s assessment as being “at face value” is properly understood. The specific observations made by the Tribunal with respect to “due diligence” at T[68] are expressly directed to the Tribunal’s understanding of the Pastor’s general practice, which the Tribunal described at T[65]. The Tribunal does not say either by implication or in terms that the Pastor did not undertake any due diligence in respect of the appellant’s purported conversion. To the contrary, the Tribunal states that it has taken into account the Pastor’s letter but given it little weight because, in its view, the Pastor’s conclusion is based on accepting what the appellant has said at face value. That conclusion was open to the Tribunal based on its assessment of the totality of the material available to it.

46    The primary judge was correct to conclude that the Tribunal’s findings at T[68] necessarily entailed a rejection of the Pastor’s conclusion as to the genuineness of the appellant’s conversion and that the genuineness of the appellant’s conversion was a factual matter for the Tribunal to assess based on its weighing of the evidence before it, including its own body of knowledge which was put to the appellant at the hearing. The primary judge correctly observed that in the context of the Tribunal’s obligation to provide a statement of reasons under s 430 of the Act, the Tribunal has no obligation to “set out the evidence which is contrary to the findings of the Tribunal on any material questions of fact where such evidence is not evidence upon which a positive or negative finding is based”, quoting from Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740; 94 FCR 379 at [4]–[5] at PJ[22] (second occurring).

47    Secondly, the appellant’s submission is premised on a misconception of what is required in terms of adequacy of the Tribunal’s reasons and, relatedly, a misreading of the Tribunal’s reasons for the reasons given by the primary judge at PJ[19] (second occurring) and PJ[22] (second occurring).

48    The allocation of weight was a matter for the Tribunal. The Tribunal’s reasons reflect that the Tribunal read, identified, understood, and evaluated the Pastor’s letter and the views contained therein, namely that the appellant’s conversion to the Christian faith was genuine. The Tribunal came to a contrary conclusion and in doing so exposed its reasons by reference to the particular circumstances of the appellant’s claim. No error has been demonstrated in respect of the primary judge’s reasoning, nor in respect of the Tribunal’s reasoning. Accordingly ground 1 must be dismissed.

Ground 2

49    As pressed, ground 2 was confined to an allegation of apprehended bias on the part of the Tribunal based on statements made by the Tribunal at the hearing regarding Pastor Piper’s practice in relation to baptisms. The Tribunal referred to its understanding that Pastor Piper had baptised over 900 Iranians and only ever refused to baptise one Iranian (at T[43]). Further, that the Pastor’s church was well known as a place that would baptise Iranians without much effort (at T[44]). The appellant submits that the Tribunal’s thoughts on Pastor Piper and his church were highly influential in the Tribunal reaching its conclusion at T[68], extracted above. The appellant submits that the Tribunal’s approach gives rise to a reasonable apprehension of bias.

50    In relation to the staged assessment outlined in Jia Legeng, the appellant submits that the Tribunal evidently had an opinion about the reliability of Pastor Piper’s views concerning the genuineness of an “Iranian person’s” conversion to Christianity. The critical point being, in the appellant’s submission, that the Pastor would baptise Iranians “without much effort”. The appellant contends that this was a serious matter and indeed probably decisive, because, so the submission goes, on the issue of religious conversion, the Tribunal could have been expected to defer to the opinion of Pastor Piper. The appellant submits that the Tribunal plainly applied its pre-existing view in respect of Pastor Piper’s practices when weighing the Pastor’s letter in this case: T[44], [68]. The appellant contends that the Tribunal applied its pre-existing opinion of Pastor Piper without giving fresh consideration to the Pastor’s letter in respect of the appellant’s conversion. The appellant submits that the Pastor’s letter evidenced that Pastor Piper had undertaken due diligence in respect of the appellant’s conversion, which warranted, but did not receive, fresh consideration by the Tribunal. The appellant faintly contends that latent in the reference by the Tribunal to Pastor Piper performing baptisms “without any due diligence on their backgrounds is potentially “something particularly sinister” if it means “they are asylum seekers”. The appellant submits that for these reasons, a reasonable apprehension of bias arises.

51    The appellant has not demonstrated that the Tribunal’s decision was affected by apprehended bias for the following reasons.

52    First, it may be accepted that the Tribunal had pre-existing knowledge in relation to the general practice of Pastor Piper and the Liberty Baptist Church in respect of performing baptisms and that that opinion was recounted and taken into account by the Tribunal in reaching its conclusion in respect of the genuineness of the appellant’s conversion: see T[43]-T[44] and T[65]. Apart from apprehended bias, no complaint is made in respect of procedural fairness. Although the transcript is not included in the Appeal Book, it is apparent that the Tribunal raised its concerns in respect of its understanding of Pastor Piper’s general practice during the hearing and informed the appellant of the effect of ss 5J(6) and 424AA of the Act: T[43], T[46]. The appellant was represented by a migration agent at the hearing and no application was made by way of recusal. The Tribunal’s knowledge derives from its store of knowledge developed in the context of its administrative function. As such, the Tribunal’s knowledge is something to which the Tribunal is permitted to have regard in its assessment of the appellant’s claims: Muin at 969[7], 970[12], 988[116], 1010[263], 1015[291], 1016-1017[300]; Jia Legeng at 562- 563[180]; SZQHH at 236[40], 237[43].

53    In applying the test for apprehended bias in the context of the Tribunal, the fair-minded observer is imputed with knowledge of the relevant statutory and administrative context and that the Tribunal as a specialist decision-maker is permitted to have regard to its developed body of knowledge. Similarly, the fair-minded observer is imputed with knowledge of the Tribunal’s obligation to afford the appellant an opportunity to respond to issues which may inform the Tribunal’s assessment of the appellant’s application. In this way, the Tribunal raising the issue during the hearing would not be perceived as pre-judgment by the fair-minded observer appropriately informed as to the relevant setting.

54    Secondly, contrary to the appellant’s submissions, the Tribunal did not apply its pre-existing knowledge about Pastor Piper’s general practice without considering the material specific to the appellant’s claim, including the Pastor’s letter. The primary judge addressed and rejected the appellant’s submissions on this issue at PJ[35]–[36], extracted at [29] above, concluding that the Tribunal did not find against the appellant “simply on the basis that he rejected the evidence of Pastor KP. There was a clear analysis of a number of other factual matters including the timing of the applicant’s baptism as well as the lack of objective evidence of his involvement with the Christian faith while in Malaysia.”: PJ[36]. The appellant has not sought to grapple with, nor demonstrate error, in respect of the primary judge’s reasoning. The Tribunal was not required to approach the issue of the genuineness of the appellant’s conversion with a blank or empty mind on the general practice of Pastor Piper with respect to baptism, provided that, the Tribunal was open to persuasion based on the particular evidence and arguments presented by the appellant in his claim. Contrary to the appellant’s submissions, the issue of the genuineness of the appellant’s conversion was a factual matter for the Tribunal to determine and not a matter upon which the Tribunal could be expected to defer to Pastor Piper’s opinion. The Tribunal’s reasons disclose that the Tribunal sifted through the totality of the material available to it and expressed a rational and logical basis for its conclusion as to the genuineness of the appellant’s conversion by reference to the specifics of the appellant’s claims. As to the appellant’s submission that there is potentially “something particularly sinister” in the Tribunal’s reference to the lack of due diligence on “their backgrounds”, I reject that submission – read fairly and in context, no such inference arises.

55    The appellant has not demonstrated the error for which he contends in ground 2, and accordingly ground 2 must be dismissed.

Conclusion

56    The appeal is dismissed. The appellant must pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    20 July 2022