Federal Court of Australia

CDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1283

ORDERS

THE COURT ORDERS THAT:

1.    The draft notice of appeal at annexure “MB3” to the affidavit of Michaela Byers affirmed on 4 April 2022 serve as the notice of appeal.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    Leave to appeal having previously been granted, this is an appeal from a judgment of a judge of the Federal Circuit and Family Court of Australia (Division 2) (the Division 2 Court). The judgment in question was to dismiss the appellant’s application to have his migration review application reinstated after it had been dismissed by a registrar of the Division 2 Court when the appellant failed to appear at a call-over.

Background

2    The appellant is a citizen of Iran. He is of Ahwazi Arab ethnicity and is from Ahwaz, Khuzestan, Iran. He arrived in Australia as an “unauthorised maritime arrival” at Christmas Island in June 2013.

3    For reasons that will become apparent, the dates on which particular events occurred in the chronology that follows are relevant to the questions for determination by me.

4    On 9 July 2013, the appellant undertook an “irregular” maritime arrival and induction interview. At that time, he stated that his religion was Shia.

5    On 7 July 2016, the appellant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV).

6    On 9 January 2017, while being held in immigration detention, with the assistance of a registered migration agent the appellant applied for a SHEV. The appellant’s claims for protection were made on the basis of discriminatory practices on account of his Arab ethnicity and persecution on account of his political opinion and involvement.

7    On 22 March 2017, the appellant was interviewed in his SHEV application process by a delegate of the Minister.

8    On 31 July 2017, the delegate refused the appellant’s SHEV application. The delegate found that the appellant would not face a real chance of persecution for the reason of his race as an Ahwazi Arab or his imputed political opinion if returned to Iran. The delegate noted that the appellant did not make a claim of fear and persecution based on his religion, either in writing or during his SHEV interview. However, during the course of the interview he made references to his “Church mentor” and the issue of religion was explored in some detail. For that reason, the delegate considered whether the appellant is a Christian. The delegate considered the appellant’s “situation to be one of interest in Christianity without having converted”. The delegate stated:

I consider that the applicant appears to have had an interest in Christianity for the time that he was in detention, but the timing of this interest raises concerns about its genuineness. In the absence of further information about the applicant’s religious practice, I am unwilling to find that the applicant is a Christian.

9    On 3 August 2017, the Immigration Assessment Authority notified the appellant that the decision to refuse him a SHEV had been referred to the Authority for review. That referral was under the provisions of Pt 7AA of the Migration Act 1958 (Cth). In accordance with the applicable practice note, the appellant was invited to make a written submission to the Authority on why he disagreed with the decision of the delegate and any claim or matter that he presented to the delegate that was overlooked.

10    On 21 August 2017, the Authority received from the appellant’s migration agent written submissions in response to the invitation. Those submissions did not say anything about the appellant’s religion, or disagree with the delegate’s characterisation of the appellant’s interest in, but not conversion to, Christianity.

11    On 11 April 2018, ie, more than eight months after the delegate’s decision and nearly 13 months after the appellant was interviewed by the delegate, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV. The Authority devoted a section of its reasons to the subject of the appellant’s claim at his SHEV interview, if such there was, to have converted to Christianity. The whole section is the following:

31.     The applicant indicated at the SHEV interview that since being taken into immigration detention after being charged with criminal offences (those charges having been subsequently dropped), he had received visits from a Christian “mentor”, he was reading the bible and preparing to be baptised, and he considered himself a Christian.

32.     The delegate asked the applicant a number of questions about his faith and beliefs and in my view his answers were superficial and revealed a very limited knowledge and understanding of Christian teachings. His responses to some questions were that he does not have a lot of information yet, which appears to cast doubt on how genuine or informed his decision to be baptised is. When asked why he wanted to be baptised he said that he likes Christianity, he has watched miracles on YouTube and is attracted to what he has heard and read. He said that being baptised would bring him closer to Jesus.

33.     Even having regard to some limitation in the interpreter’s ability to translate Christian terminology which seemed apparent at the SHEV interview, and the inherent difficulty of expressing abstract and complex concepts, I am not satisfied on the basis of the available information that the applicant has demonstrated that he was a Christian at the time of the SHEV interview, or that he had, or has, a genuine and ongoing commitment to Christianity. The delegate made similar findings in his decision statement and noted that the applicant had not provided any further information after the SHEV interview and his release from detention to indicate that he had been baptised, or was attending church or was still committed to, or interested in Christianity. Despite being on notice that his claim to be a Christian had not been accepted, and that it might be useful to provide evidence of ongoing attendance at church or engagement with Christianity, no further evidence was provided to the IAA in relation to any fear of harm the applicant might have as a convert to Christianity, and indeed, the claim was not mentioned again. Based on the available evidence, I am not satisfied that the applicant was, in fact, a Christian convert when he was interviewed by the delegate in March 2017 and said that he considered himself to be a Christian. Nor am I satisfied that the applicant has maintained any involvement with or interest in the Christian faith in Australia, or that he would do so on return to Iran.

12    On 27 April 2018, which was within the stipulated time, the appellant filed an application for review of the Authority’s decision and a supporting affidavit in the Division 2 Court in Adelaide. At that time, the appellant was resident in Adelaide.

13    On 1 June 2018, the proceeding in the Division 2 Court was listed for its first court date in Adelaide. The appellant attended. The matter was listed for a directions hearing more than a year later, on 28 June 2019.

14    On 28 June 2019, the appellant failed to appear at the call-over. Registrar Colbran made an order dismissing the appellant’s review application on account of his absence pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (repealed) (the FCC Rules). That rule provided that if an applicant to a proceeding is absent from a hearing, a registrar may dismiss the application.

15    For reasons I will return to, it was not until 19 May 2021, ie, nearly two years later, that the appellant applied, by application in a case, for an order to reinstate his review application. The application for reinstatement was not listed until 15 March 2022, some 10 months later.

16    On 18 March 2022, the primary judge dismissed the reinstatement application. As mentioned, it is against that judgment that the appellant now appeals.

Principles on reinstatement

17    I respectfully adopt what was said by Davies J in DAE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 79 at [8] with regard to the principles applicable to the exercise of the power under r 16.05(2)(a) of the FCC Rules to vary or set aside a judgment or order that has been entered in the absence of a party:

Generally a court will have regard to three factors in exercising the power and consider whether, on balance, those factors tend for or against the reinstatement. Those factors, as explained by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] are:

(a)    whether there was a reasonable excuse for the applicant’s absence from the hearing in which the proceeding was struck out;

(b)    the existence and nature of any prejudice that might flow to the respondent from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and

(c)    whether the applicant has a reasonable chance of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi‑Cultural and Indigenous Affairs [2005] FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

(Ryan J’s emphasis)

However, as the Full Court observed in [FBS18 v Minister for Home Affairs [2019] FCAFC 196] at [55] and [58], the discretion in r 16.05(2)(a) of the FCC Rules is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise that discretion. Factors commonly cited in case law, such as those listed by Ryan J in MZYEZ, are to be taken as a guide to what may be considered when exercising the discretion in r 16.05 of the FCC Rules, and the statutory discretion should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list.

18    The appellant accepts that because the decision in question involved the exercise of a discretion, the appeal from that decision will attract the principles in House v King [1936] HCA 40; 55 CLR 499 at 504. That is to say, the appellant has to show that some error has been made in exercising the discretion, such as acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision, mistaking the facts, or failing to take into account some material consideration. Also, if the decision is unreasonable or plainly unjust, the appellate court may infer that in some way there was a failure to properly exercise the discretion. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

The case before the primary judge

19    The appellant’s proposed grounds of review of the Authority’s decision, if his application for review of that decision is reinstated, are recorded by the primary judge as follows (at J[39]):

Ground One

The Authority acted legally unreasonably by making a finding on 11 April 2018 that the applicant did not have a genuine and ongoing commitment to Christianity based on evidence and information given to the delegate on 22 March 2017.

Ground Two

The Authority was legally unreasonable in finding that the applicant was not Christian without exercising its discretion under s 473DC(3) [of the Migration Act] to request the applicant to provide further information regarding his practice of Christianity.

20    In relation to ground one, the primary judge was not satisfied that the Authority’s findings were without logical or probative basis, and found that the appellant did not provide to the delegate any independent material which might have supported his claim of conversion from Shia Islam to Christianity. The primary judge held that the finding by the Authority that the appellant was not a convert to Christianity was open to it for the reasons that it gave, and that ground one accordingly had no merit.

21    Since, as will be seen, the proposed grounds of appeal in this Court refer specifically to the primary judge’s reasons at J[52] and J[53], it is just as well to set them out in full:

52     Ground two fails to raise any matter which discloses a jurisdictional error on the part of the Authority. Ground two suggests it was legally unreasonable for the Authority not to seek new information from the applicant about his conversion to Christianity due to the lapse of time between the delegate’s decision and the decision by the Authority. First, the time delay was not excessive. The delegate made their decision on 31 July 2017. The Authority handed down its decision on 11 April 2018. The applicant relies upon NAIS and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [9], [106] and [172]. The Court is not satisfied that the delay in this case was sufficient to raise issues of inherent unfairness as found in that decision.

53     The course adopted by the Authority in not seeking further information from the applicant was entirely unremarkable. Further, the applicant’s representative provided the Authority with a submission set out at paragraph 5 of the decision record. That submission made no reference to additional material as to the applicant’s conversion to Christianity. Section 473DB of the Act makes it clear that any review should be made without accepting or requesting new information and without interviewing the applicant. Significant limits on what new information may be accepted are set out in s 473DD of the Act including the existence of exceptional circumstances. The Court is not satisfied there was anything unreasonable on the part of the Authority not to seek new information from the applicant. Ground two has no merit.

22    In the concluding section of his Honour’s reasons, the primary judge said that he was not satisfied with the explanation given by the appellant in relation to his failure to appear at the directions hearing following which the matter was dismissed by the registrar, and that he was also not satisfied with the appellant’s explanation as to the delay in lodging the application for reinstatement (J[54]). The primary judge noted the concession by the Minister that they would suffer no prejudice, but expressed concern “that there should be finality in this matter which involves the consideration of constitutional writs” (J[55]). Lastly, the primary judge concluded that a consideration of the proposed grounds of judicial review do not reveal, even on an impressionistic basis, that the matter has merit. In the circumstances, his Honour concluded that it would be pointless to exercise jurisdiction in favour of the appellant to reinstate the matter (J[56]).

The grounds of appeal

23    The draft notice of appeal, which in view of leave having been granted is to serve as the notice of appeal, sets out the following grounds of appeal (with “applicant” being substituted by “appellant”):

1.     The Court erred in finding that the delay of a review of a fast track review application did not involve jurisdictional error.

Particulars

a.     The Court erred at [52] in finding that the time delay was not excessive without consideration of the fast track process under s 473BA of the Migration Act 1958 (Cth) (“the Act”) requiring a limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review) and thereby asking itself the wrong question.

2.     The Court erred by not allowing the re-instatement application by reason of its error in assessing the merits of the proposed amended grounds.

Particulars

a.     At [53] the Court considered the wrong time period. The time elapsing between the appellant giving evidence to the delegate at the SHEV interview on 22 March 2017 and the Authority's decision on 18 April 2018 was 13 months;

b.     At [53] the Court failed to consider the possible development of the Appellant's sur place claims of converting to and practising Christianity in Australia over a 13-month period;

c.     It was legally unreasonable not to exercise the Authority’s discretion to ask for new information under s 473DC(3) before making a decision on evidence relating to a sur place claim given 13-months to the delegate; and

d.     The Court erred in its consideration of the merits of the proposed amended grounds in dismissing the application for re-instatement.

3.     The Court erred in dismissing the re-instatement application without considering the consequences of refusal for the appellant.

Particulars

a.     In an affidavit affirmed on 30 April 2020 the appellant provided a reasonable excuse for failing to attend the hearing and the delay in applying for re-instatement as homelessness, poverty, heavy use of drugs, imprisonment, immigration detention and the Covid pandemic;

b.     The Court failed to consider the consequences for the appellant of dismissing the reinstatement application as indefinite detention and indefinite separation from his Australian citizen partner and son;

c.     At [53] the Court made an irrelevant consideration and/or misdirected itself regarding “the time was not excessive”, instead of considering whether failing to exercise its discretion under s 473DC(3) of the Act to request new information on the Christianity claim, the Authority was legally unreasonable;

d.     The respondent conceded that there was no prejudice to the respondent; and

e.     The Court failed to consider the three factors for re-instatement on balance and fell into error.

4.     The Court erred in dismissing the re-instatement application by giving its opinion on the appellant’s explanation for delay in his affidavit by a negative reference and association to the Court’s personal view of his former clients when he was a criminal law practitioner.

24    With reference to appeal ground 2, particular (c), it can be noted that a person who becomes a refugee after leaving their country of nationality or habitual residence is called a refugee sur place. A person may become a refugee sur place for different reasons. There may be a change in the conditions of that country after their departure from it, which results in that person developing a well-founded fear of persecution if they were to return to it. A person may also become such a refugee sur place as a consequence of their own activities after their departure because those activities may come to the attention of the authorities in that country. See Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; 238 CLR 642 at [40].

Appeal grounds 1 and 2

25    These grounds of appeal go to the merits of the proposed grounds of review before the Division 2 Court. In particular, they are directed at the conclusion of the primary judge that the proposed grounds of review do not have merit.

26    The appellant submits, first, that the primary judge applied the incorrect test by not asking whether the proposed grounds were “arguable”, but instead directed his attention to whether they had “reasonable prospects of success” or “sufficient prospects of success”, or whether any “jurisdictional error is made out”. The essence of the point sought to be made by the appellant is that the primary judge in effect decided the proposed grounds of appeal on the merits in the so-called reinstatement application which denied the appellant receiving a first instance hearing on the merits. He submits that the Court’s task is more limited in that it need only consider whether the proposed judicial review grounds were arguable so as to justify reinstatement of the proceeding.

27    I am not persuaded that there was any error by the primary judge by applying an incorrect “test”. The primary judge understood that he had a discretion to reinstate the application for judicial review and he identified the factors listed in MZYEZ that are generally considered in deciding such an application, including whether the appellant “has a reasonably arguable prospect of success on the substantive application” (J[5]). As mentioned, the discretion in the relevant rule is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise the discretion. There is no error in the primary judge considering the merits of the proposed review grounds at a more definitive level than whether they are merely “arguable”, as the appellant submits, or that they have “a reasonable chance of success”, as referred to in DAE18.

28    This point is similar to an argument recently rejected in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 in relation to the exercise of the power under s 477A(2) of the Act to extend the time to bring an application for judicial review of a migration decision if the court “is satisfied that it is necessary in the interests of the administration of justice to make the order”. The High Court (at [19] and [61]) disapproved of dicta in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 at [68] that an evaluation of the merits of the proposed substantive application that goes further than an “impressionistic evaluation of the [applicant’s] proposed ground of review, strongly suggest that it misconceived its functional power and acted in excess of its jurisdiction”. As it was explained by the High Court (at [18]), there will be circumstances in which it is appropriate for the court to engage in more than an impressionistic assessment of the merits. In the context of a reinstatement application, if the delay is short and the explanation for the failure to appear compelling, it may be that an assessment of the merits at only an impressionistic level is sufficient. However, if the delay is long and the explanation less compelling, it may be that a more definitive assessment of the merits is appropriate. The broad discretion in the rule does not prevent a judge from undertaking a detailed and relatively definitive assessment of the merits and from relying on that to refuse to reinstate the application.

29    The appellant submits, secondly, that the primary judge made an error of law by misconstruing s 473DB as “mak[ing] it clear that any review should be made without accepting or requesting new information and without interviewing the applicant” (J[53]). It is said that the error is that s 473DB is expressed to be “subject to this Part”, which includes s 473DC(1) which confers a discretion on the Authority to get “new information” and s 473DC(3) which confers a discretion on the Authority to invite any person to provide new information in writing or in an interview. Reference is made to BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [15]. On the basis that the identified discretions were exercised unreasonably, or not at all, the appellant submits that the review grounds are at least arguable.

30    It may be accepted that the review grounds in reliance on the discretions in s 473DC(1) and (3) having miscarried were arguable, but there was no error in the primary judge’s approach to them. His Honour’s statement in J[53] which the appellant submits is characterised by error accurately expresses the “primary requirement” and “primary rule” for the conduct of reviews under Pt 7AA by the Authority: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22].

31    I accept the submission on behalf of the Minister that the primary judge’s assessment that the Authority’s decision to not seek further information from the appellant was “entirely unremarkable” (J[53]) was correct. The appellant had, and took, the opportunity to make submissions to the Authority following the delegate’s adverse decision. The appellant said nothing in those submissions with regard to his belief in Christianity and took no issue with the delegate’s conclusions in that regard. That is unsurprising when one considers that the appellant never independently made the claim for refugee status based on any belief in Christianity – the issue only arose obliquely during the appellant’s SHEV interview which the delegate, to their credit, explored further with the appellant to see whether a sur place basis for refugee status existed. For the Authority in those circumstances to have sought no further information can hardly be said to be unreasonable, even taking into account the passage of time.

32    The appellant submits, thirdly, that the primary judge failed to give reasons for its conclusion (at J[52]) that “the Court is not satisfied that the delay in this case was sufficient to raise issues of inherent unfairness as found in [NAIS v Minister for Immigration [2005] HCA 77; 228 CLR 470]”. It is said that the primary judge failed to take account of the statutory context of the Authority’s decision, being that it was in a “fast track” process within Pt 7AA of the Act which required the Authority’s limited review to be quick and efficient (s 473FA). With reference to NAIS at [161], the appellant submits that the point of prejudice is at least arguable.

33    I accept the submission on behalf of the Minister that the effluxion of time between the date on which the appellant was interviewed by the delegate and the date of the Authority’s decision is of no consequence in the circumstances of the present case. That is, again, because the appellant had the opportunity when submissions were made on his behalf in August 2017, five months after he was interviewed by the delegate, to bring forward any further evidence relevant to the question of his Christian belief and he failed to do so. Although the evidence on which the Authority made its decision dated back to March 2017, it was the most up-to-date evidence that the Authority had at its disposal and the appellant had done nothing to seek to update that evidence.

34    NAIS, while deploring delay in decision-making, does not advance the appellant’s case. Unlike in that case, in the present case it is not shown how the delay created prejudice in the decision-making process such as to render it unfair. In that case, the unfairness arose from the fact that the tribunal followed an inquisitorial procedure that, in the circumstances of that case, depended to a significant extent on the tribunal’s assessment of the sincerity and reliability of the appellants. The considerable delay between the time of the tribunal’s hearing and its decision led to a real and substantial risk that the tribunal’s capacity to make an assessment of the appellants was impaired: [9] and [10] per Gleeson CJ, [85], [92], [102] and [106] per Kirby J, and [168]-[174] per Callinan and Heydon JJ. That does not apply in the present case.

35    Finally, the appellant submits that the primary judge made a number of factual errors in the sense described in House v King at J[51]. They are said to be the following:

(1)    The primary judge erred in concluding that the Authority’s finding that the appellant had not “converted to Christianity” was not illogical or without a probative basis. That is on the basis that the appellant had not claimed to have “converted” to Christianity.

(2)    The primary judge erred “by misrepresenting the matter as a didactic [scil. binary?] construct between converted or not converted, the key issue of the development of the Christian beliefs in the time since the hearing before the delegate was obscured”.

36    Before dealing with those two alleged errors by the primary judge, two further alleged errors should be dealt with. First, in the appellant’s submissions at [34(c)] a third error is said to be identified, but no such alleged error is discernible. The alleged errors in that paragraph are identified as alleged errors of the delegate and the Authority, without any identification of error by the primary judge.

37    Secondly, in the appellant’s submissions at [34(d)] it is said that the primary judge erred in saying (at J[47]) that “it was not a matter for the Authority to exercise its discretion to obtain new evidence on this issue, particularly because the Authority did not believe the applicant’s claimed interest in Christianity”. The appellant submits that this “finding by the Court below was clearly incorrect”. However, that complaint is directed not at any finding or reasoning by the primary judge but at the primary judge’s summary of the Minister’s submissions to the primary judge. The criticism is entirely misdirected.

38    Returning now to the alleged errors summarised at [35] above, I understand the essence of the complaint to be that the Authority misunderstood the question of the appellant’s apparent Christian belief to be whether he either had or had not converted to Christianity without recognising, as the delegate had, that converting to a particular faith is a process rather than an event. It is said that the Authority should have recognised that the quality of the appellant’s conviction in the Christian faith was developing and that the Authority failed to enquire whether in the long period since the appellant had been interviewed by the delegate it had further developed to a point sufficient to ground a refugee claim.

39    The factual findings by the Authority were that the appellant claimed at the interview with the delegate that “he was now a Christian” (A[3]) and that “he considered himself a Christian” (A[31] and [32]). There is no mischaracterisation by the primary judge of the Authority’s findings or reasoning in saying that the appellant “claimed to the delegate that he had converted to Christianity”. The appellant seeks to put all the emphasis on the word “converted”, but it is not an emphasis to be found in the reasoning of the Authority or the primary judge. “Convert” is used by the primary judge as a descriptor of whether the appellant is “now a Christian”.

40    The primary judge found there was no error in the Authority’s findings and reasoning, which included the finding that the appellant had not demonstrated that he had “a genuine and ongoing commitment to Christianity” (A[33]). That demonstrates that the Authority did not regard the development of the appellant’s professed interest in Christianity to be measured on a binary scale of “converted” or “not converted”.

41    In Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; 105 FCR 548, Gray J stated at [16] that:

Religion is a matter of conscientious belief, professed adherence and practice. The [Tribunal] seems to have approached the issue on the basis that the appellant had to satisfy the [Tribunal] that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the [Tribunal] to take on the role of arbiter of doctrine with respect to any religion.

42    In WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28] the Full Court, referring to the comments of Gray J in Wang, stated:

Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.

43    The Full Court in WALT went on (at [30]) to observe that in that case the Tribunal did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity; it merely explored the level of his knowledge and understanding, and his commitment. In that case, the appellant had virtually no knowledge or understanding of Christianity, and he had not practised his claimed new religion in any way that he identified. All of those observations are equally applicable to the present case.

44    A further and detailed exposition of the nature of the inquiry as to a person’s adherence to a particular religious belief for the purposes of founding a refugee claim based on persecution because of that belief is set out in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 at [47] by North, Bromberg and Mortimer JJ. No error by the Authority in the present case is disclosed with reference to that exposition.

45    Although the Authority in the present case commented that it viewed the appellant’s answers to the delegate’s questions about his faith and beliefs to be superficial and reveal a “very limited knowledge and understanding of Christian documents”, those comments do not suggest that the Authority regarded itself as an “arbiter of doctrine” or that it impermissibly prescribed a specific level of doctrinal knowledge of, and commitment to, Christianity as a precondition to the appellant being accepted as a Christian. Rather, the Authority considered that the appellant’s answers, including the response to some questions that he did not have a lot of information yet about Christianity, appeared to cast doubt on how genuine his decision to be baptised as a Christian was. The Authority considered the information before it with respect to the appellant’s “journey” with Christianity, which did not include evidence of ongoing attendance at church or engagement with Christianity despite the appellant being put on notice that his claim had not been accepted by the delegate, and concluded that it did not believe that the appellant was a genuine and ongoing adherent. There was therefore no discernible jurisdictional error by the Authority in this regard, and therefore none by the primary judge.

46    It should also be borne in mind that the appellant adduced no evidence before the primary judge that he had progressed on his “journey” towards Christianity, even in the five year period between the interview with the delegate and the hearing before the primary judge, let alone in the 13-month period that he complains of between the interview with the delegate and the decision of the Authority. In his affidavit supporting his reinstatement application, the appellant said only that “I have also got back in touch with my Christian faith, and with the help of Pastor [name redacted], I am making real steps towards getting my life back in order”. He annexed two certificates saying that he had successfully completed two Bible study courses, but there is no information with regard to what those courses entailed and they do not speak to the state of the appellant’s Christian conviction.

47    The appellant accordingly failed to demonstrate that even if the Authority was unreasonable in not seeking further information from him with regard to his Christian faith, had the Authority sought any such information it could have made any difference. Any error by the Authority was therefore immaterial to the outcome of the decision and was therefore not jurisdictional error: Nathanson v Minister for Home Affairs [2022] HCA 26 at [32]-[33] per Kiefel CJ, Keane and Gleeson JJ.

48    In the circumstances, there is no error by the primary judge in relation to his Honour’s assessment of the potential merit of the appellant’s proposed review grounds. Appeal grounds 1 and 2 must therefore fail.

49    I accept the submission on behalf of the Minister that the conclusion that the proposed grounds of review have no merit means that it is unnecessary to consider the remaining grounds. That is because even if another ground of appeal was otherwise good, there would be no point in reinstating the application for review in circumstances where it cannot succeed: MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] per North J.

Disposition

50    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    28 October 2022