FEDERAL CIRCUIT COURT OF AUSTRALIA
MZZNB v MINISTER FOR IMMIGRATION & ANOR	[2014] FCCA 1331	

Catchwords: 
MIGRATION – Application for judicial review of Independent Merits Review decision – whether Reviewer made findings not supported by evidence – whether Reviewer addressed claims made by applicant – whether Reviewer made finding not supported by evidence – whether Reviewer applied wrong legal test – criticisms of decision not made out – application dismissed.	

Legislation:  
Migration Act 1958 (Cth)
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees	

Applicant:	MZZNB	

First Respondent:	Minister for Immigration & BORDER PROTECTION	

Second Respondent:	RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER	

File Number:	MLG 954 of 2013	

Judgment of:	Judge Burchardt	

Hearing date:	4 April 2014	

Date of Last Submission:	4 April 2014	

Delivered at:	Melbourne	

Delivered on:	27 June 2014	

REPRESENTATION
Counsel for the Applicant:	Mr D. M. Robinson	

Solicitors for the Applicant:	Allens	

Counsel for the First Respondent:	Mr R. Knowles	

Solicitors for the Respondents:	Clayton Utz Lawyers	

ORDERS
(1)	The Application filed 1 July 2013 be dismissed. 
(2)	The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne	
MLG 954 of 2013
MZZNB	
Applicant

And

Minister for Immigration & BORDER PROTECTION	
First Respondent

RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	The applicant seeks judicial review of the decision of the second respondent.  The decision was set out in an Independent Merits Review Report dated 18 February 2012, by which the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugee Convention. 
2.	The applicant’s Application filed 1 July 2013 sets out four grounds of application, some of which, in effect, have sub-grounds themselves.  These grounds, in each instance, allege jurisdictional error in the way in which the Reviewer dealt with – or failed to deal with, as the case may be – claims advanced.  It is asserted, inter alia, that the Reviewer made a finding not supported by the evidence, by failing to address adequately one of the applicant’s claims, by making a further critical finding not supported by evidence and by applying the wrong legal test in the assessment of whether the applicant had a well founded fear of persecution.
3.	As may perhaps be instantly apparent, each of these grounds of application involved detailed consideration both of what the Reviewer found and of the materials that were before him.
4.	In these circumstances, it is necessary to deal in some detail with the materials in the Court Book filed 6 November 2013 and in the transcript of the hearing before the Reviewer, which is annexed to the Affidavit of Dora Anna Banyasz filed 28 February 2014.  
The Applicant’s claims in the Court Book
5.	The applicant’s unauthorised arrival interview is at CB11-39.  At CB20, the applicant answered the question “Why did you leave your country of nationality?”  Relevantly, he said:-
	…the main reason is the Intelligence Services are after me.  
	Why?  Because I do drawing – I would design and draw sexy pictures – naked women – I got attracted to doing this.   
	Do you this for a living?  Not for income, just my interest.
	How did the I.S. found out?  I don’t know why – it is not clear to me.  Bec. I have sent my drawings to my friends and many people. 
	What did the I.S. did to you?  Me and my other 3 friends who meet in a house – bec. we don’t have a formal training – we are just trying to learn from each other.
	What was the threat?  My friends, the 3 of them got arrested except me.
	When?  About 20 days before I left – 
	Who arrested them?  It is not clear if the Intelligence Service – I don’t know exactly.
	How do you know they were arrested?  My shop is on the next bldg - and on the ground floor - is where the workshop is.  Then a tinted car came and went to the house – they got arrested. * As soon as I saw that I knew I was in trouble.  
	What happened to your friends?  No – it is impossible to find out and I do not know who took them. 
	Have you seen them after they were arrested at all – no – I have not seen them and no news at all.  
	After this incident, were you hurt or harass at all?  No.
	What other reason you left Iran?  They are after me too – how did you know it was them? 
	* When they came to the house – where the shop is next to – they took all the drawings – including political drawings and naked drawings (my drawings).
Two days later, they came to my house – to search my house (I was not there.  I am at my brother’s house) for me.  They are asking for me.  My mother asked why they are looking for me – then – she was told – my 3 friends who were arrested told these people that all the drawings are mine and that I am the head of the group.  After that, under the suggestion of my brother-in-law I decided to leave Iran.  
	Any other reason why you left Iran?  Yes.  I always have problem with my religion.  It was forced into me.  I don’t like it.  
	Who forced you?  Family, govt - - they said if you were born Muslim, you should stay Muslim.
	What is the problem w/ your religion?  I want to study and search what I like.  
	Have you told anyone about your deasion about religion?
	I talked to my family – and they didn’t like it and put it aside.  My family warned me about consequences if I wanted to change my Religion.  Bec. in Iran, if someone changes religion, it will be considered as MORTAD – act against GOD and the punishment is execution.  Also, in the eyes of my family and friends it is something unacceptable.
	What type of religion did you want to practise?  I want to compare religion, For example Christianity.  The 3rd reason.  Bec. I draw, I consider myself an artist – I like to do art – w/c is not accepted as an art also it is banned bec. it is considered against Islamic value – bec. I drew naked women.  
	Anything else?  And bec. didn’t have a chance of not getting training in the kind of drawing I like.  There was no future in this regard for me.  I always want to find another country to be able to freely do this.  I don’t believe in ruling the country, they are thieves and steal our votes and other things all the time.
	Anything – other than that?  I think that is enough. 
(The extract is continued at pages 30 to 32 of the Court Book.)  
6.	I note that at CB21 the applicant asserted that, “during election I participated and attended the protest and made slogans” but this part of his claim does not appear to have been prosecuted in any significant way.  
7.	At CB28 the applicant answered the question “Do you have any reasons for not wishing to return to your country of nationality?” as follows:-
	First of all I am being persecuted.
	By who?  I think the Intelligence Security.
	Why?  Bec. drawing the naked women are unacceptable there and political cartoons.  I don’t draw political cartoons, but I was blamed for drawing them when my friends got caught, and I was not there to defend myself.  The place – the workshop – I’ve got the key – and I arranged for the workshop.
	Any other reason why you can’t go back to Iran?  Bec. I like to continue this work and there is no facility in Iran.
	Anything else?  I also want to choose my religion in this country.  I don’t want to live in a cage.  
	Anything else?  No.  
The Applicant’s Statutory Declaration.
8.	The applicant provided a statutory declaration which is at CB75-77.  I do not propose to set out the whole of the statutory declaration.  It was essentially consistent with the information earlier provided, although it provided further detail.  I note that the applicant fled Iran “because of my fear of being persecuted and tortured by the Department of Intelligence”.  
9.	The applicant made it clear that it was his drawing of pictures that had caused the problem.  At paragraph 9, the applicant described the incident where his friends were arrested in the following terms:-
	I noticed that there was a car parked outside with tinted windows.  Four or five people, I think they were from Security Intelligence went into the house one of them through the roof, and my 3 friends who were in the house were arrested and taken away together.
10.	The applicant went on to say, at paragraph 14:-
	My fear of returning to Iran is that I will be targeted by the Security Intelligence because they considered me to be leader of the group and that I was responsible for the nude drawings and also the political and religious caricatures.  I will be arrested and tortured and the penalty may be execution.
11.	The applicant went on to say, at paragraph 17:-
	Another reason I would like to be accepted to Australia is that, although I was born a Shia Muslim I did not accept the religion and was not practising.  If I changed to another religion in Iran I would be considered apostate, and the penalty for is execution.
12.	The Department’s Refugee Status Assessment (“RSA”) record is at CB100-109.  The applicant’s claims for protection are summarised at CB101 consistently with his claims in his entry interview and statutory declaration.  The applicant’s factual assertions also reflect his earlier assertions, although I note that at CB102 the assessor recorded:-
	The claimant stated that he feels Islam is a brutal religion forced on him.  It is a religion about war and blood and is not consistent with his moral values.  He has been to the mosque very few times, mainly for mourning.  People around him knew that he was not practising Islam but the majority of them did not care.  He has not found a new religion yet and still considers himself a Shi’a Muslim.
13.	I note that the claimant’s representative requested towards the conclusion of the interview that the Convention reasons for the claimant’s claimed persecution were imputed political opinion, religion and membership of a particular social group, being “failed asylum seekers” (CB102).
14.	The assessor found the applicant’s claims to be vague and not credible (see CB107) and formed the view that he did not face a real chance of politically based persecution if he were to return to Iran, now or in the reasonably foreseeable future, including as a result of his being a returned asylum seeker, although the assessor accepted that this might come to the attention of the Iranian authorities.
The information forwarded by the Refugee and Immigration Legal Centre Inc. 
15.	On 15 December 2011 the RILC forwarded material to the second respondent in anticipation of the forthcoming Independent Merits Review (“IMR”) hearing.  The written submissions run from CB116-158.  They repeat the applicant’s concerns arising out of his drawing and asserted narrow escape from arrest.  The submissions also assert at CB117 that the applicant had rejected Iran and faced persecution for apostasy.  The written submissions repeat (CB117) the fear of persecution as part of the membership of a particular social group of failed asylum seekers from Iran.
16.	The written submissions responded to the credibility concerns by the RSA assessor and referred extensively to country information.
17.	The applicant’s statement accompanying the written submissions is at CB159-163.  It responds to some of the matters found against the applicant by the assessor.  A further email from the applicant at CB167-179 does not, in my view, take the matter much further.
18.	At CB175-178 the RILC responded to certain matters raised at the IMR hearing.  The submissions attached evidence as to when the applicant’s Yahoo account was opened, and attached the translation of the information the applicant had researched regarding the Iranian laws relating to his activities in Iran.  The written response, lastly, responded to country information regarding the return of Iranian asylum seekers to Iran.
The transcript of the IMR hearing
19.	At page 5 of the transcript, the applicant details the arrest of his three friends and his escape.  In response to a question from the Reviewer, “When you say sexy pictures, do you mean pornographic pictures or do you mean artistic nudes?”, the applicant replied, “Both of them, every kind.”  
20.	He also confirmed that he had put such pictures on the internet.
21.	At page 7 of the transcript, the applicant was asked if there were any other reasons why he was afraid to go back and he replied:-
	Because in Iran ... so they are forcing everyone they that they have to be Muslim.  My father and my mum, they are Muslim.  I was also counted as a Muslim, but I never believed in Islam and I don’t believe in Islam.  And I came here ... I’m trying to find another religion for myself.  And for sure, the religion which I will choose, that will be Christianity.  But I still don’t have much information regarding that religion because it’s divided to different branches.  And as I mentioned, for sure, I will accept Christianity.  And if I return back to Iran, I will not be available to continue my religion as a Christian.  And then the government knows about that.  Of course, they will bother me.  Even my family. 
22.	He went on to say that the government would find out because he would go to church and otherwise reveal his religion.  It is fair to say that the Reviewer expressed a certain amount of scepticism about the applicant’s claims in relation to Christianity recorded at pages 8-10 of the transcript.
23.	It should be noted that the Reviewer traversed in terms with the applicant, at transcript page 14, the proposition that:-
	before you would do an arrest like that, you wouldn’t just turn up, come out of your car and arrest people because what happened if somebody had left the house 10 minutes before you arrived.  So before you would do the arrest it is normal that you would have the place under observation in case people left, other people came in, so you know how many people are in the house. 
24.	The Reviewer returned to this matter more than once.  
25.	The decision of the Reviewer is at CB200-215.  The Reviewer introduced the matter and paraphrased the relevant law at CB200.  Nothing turns on those matters.
The Reviewer’s Decision 
26.	The Reviewer paraphrased the claims and evidence at CB201-208.  The Reviewer paraphrased the materials raised in the entry interview, in my view accurately, at paragraphs 11-14 and likewise the matters raised at the RSA submission at paragraphs 15-21.  The Reviewer set out at length the matters raised by the applicant in his second RSA interview on 28 February 2011 at paragraphs 22-36 and the written submissions provided at paragraphs 37-45.
27.	At paragraphs 46-68 (CB205-208) the Reviewer paraphrased the matters raised at interview.  It should be noted that some of the matters recorded by the Reviewer were the subject of challenge inasmuch as the applicant’s counsel asserted that they were inaccurate.  I note that at paragraph 52 the Reviewer put the applicant on notice that:-
	…evidence of a conversion to Christianity may strengthen the applicant’s claim and accordingly, under Section 91R(3) of the Migration Act I am able to disregard such evidence if I believe that such an action is undertaken for the sole purpose of strengthening one’s claim.
28.	The Reviewer set out Country Information at CB 208-210, dealing particularly with failed asylum seekers returning to Iran.  This included a Danish Immigration Service report to the effect that persons returning to Iran who have left illegally will not face problems with the authorities upon return, though they may be fined (paragraph 75).
29.	The findings and reasons of the Reviewer are set out at pages 210-215.  I note that the Reviewer stated at paragraph 77:-
	In considering a claimant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before a claimant fully appreciates what is relevant and the degree of detail required.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The reviewer is not required to accept uncritically any and all claims made by a claimant.  
30.	I would accept the force of all of those observations.
31.	The Reviewer went on to find that the claimant was not reliable, credible or truthful and, as a result, did not accept that he had a well founded fear of persecution for a Convention reason on return to Iran.  I do not propose to paraphrase the Reviewer’s reasoning in any greater detail at this stage because detailed consideration needs to be given to those aspects of what the Reviewer found that are the subject of the grounds of application.  
Ground 1
32.	The second respondent committed a jurisdictional error by making a critical finding not supported by evidence or failing to address, or inadequately addressing, one of the claims made by the applicant.
Particulars
(a)	The applicant claimed to have a well founded fear of persecution for Convention reasons, including because his artistic activities had come to the attention of Iranian security forces.
(b)	The applicant claimed that on 5 December 2010 ‘security forces’, ‘security people’ or ‘intelligence’ raided his home and arrested his friends.
(c)	The second respondent (at paragraph 80 of his report) rejected the applicant’s claim that he (or his activities) had come to the attention of the Iranian security forces on the basis that the second respondent did not believe that any “professional security force” would undertake an arrest operation in the manner described by the applicant.
(d)	The second respondent’s finding fails to address the actual claim that was made by the applicant by assuming that the people alleged by the applicant to have conducted the raid were part of a professional security force. 
33.	The argument advanced by the applicant under this ground is set out at paragraphs 13 and 14 of the written submissions as follows:-
	In short, there was nothing in [applicant]’s claim and nothing in the evidence before the reviewer to indicate that the people who [the applicant] claimed had raided his studio belonged to a group or agency which exhibits any consistent quality of professionalism in conducting surveillance, arrest and other intelligence and security related operations.  That notion came entirely from the reviewer himself.
	Accordingly, the reviewer’s characterisation of those people as being part of a ‘professional security force’ was either a finding which had no basis in evidence, or an assumption that misconstrued the actual claim that was made, and thus constituted jurisdictional error.
34.	It was submitted that the applicant had never claimed that the people who arrested his friends were part of a professional security force and indeed that he had not been able to identify them precisely at all.  
35.	The first respondent’s written submissions characterise the applicant’s position as one that puts an undue gloss on the Reviewer’s decision and effectively constituted merits review.  I note that at paragraph 56 (CB206) the Reviewer said of the IMR interview:-
	He claimed that the security forces had information and there must have been someone telling them how many people were in the house, and raided according to their plan.  It was put to him that his story about him leaving the house just before it was raided and moving next door without being seen appeared to be very convenient and not in accordance with the way professional security forces would operate.  The claimant claimed that the operation was still a success, and the fact that all four of them were there together before they mounted the operation showed what good information they had.  He claimed that they must have made a mistake.
36.	At paragraph 80 (CB201), the Reviewer’s finding was:-
	I do not accept the claimant’s claim that he has come to the attention of the Iranian security forces.  His account of the alleged arrest of his friends is implausible.  I do not believe that any professional security force would undertake an arrest operation on suspected dissidents in a building without keeping that building under some form of surveillance in order to determine who exactly is in the building (or who has left).  For the claimant to walk out the front door of the target building and enter the shop next door, completely unseen, minutes before the security forces arrived and therefore avoid arrest is implausible.  I believe that the claimant has concocted this claim in order to create a basis for being of interest to the security forces. 
37.	During the currency of the hearing, the transcript reveals a number of extracts where this topic was discussed.  At transcript page 10 the applicant relevantly said:-
	At the time when I went to the shop, I’m talking with a customer and there was a car at that time.  It came in front of ... to the shop.  There was ... it was belonged to the intelligence.  And three or four people, they just took off from that car.  And then they came to us to the shop.  Because the people who are working with intelligence in Iran, they have their own style.  So then I found out that who they were. 
38.	At transcript page 12, the Reviewer asked, “So what agency was this particular style?”  and the answer was, “Well, the Basij and Sepah and also intelligence, they are on the same side.  Their uniform is different but the way that they’re ... those people who came to arrest my friends, they had their kind of clothes.  They were not on the uniform.”
39.	The applicant confirmed at transcript page 13 that these people were working for the government.
40.	At transcript page 14 the Reviewer said:-
	I find it a bit strange for intelligence agencies that they would just pull up out the front of a house and then go straight into the house, that they wouldn’t do any surveillance of the house to see who comes and who goes.  That would be the normal thing that a security agency would do.  So I’m wondering why you think they just pulled up and went straight in.  
41.	Further on the same page the Reviewer said:-
	…I am talking about before you would do an arrest like that you wouldn’t just turn up, come out of your car and arrest people because what happened if somebody left the house 10 minutes before you arrived.  So before you would do the arrest it is normal that you would have the place under observation in case people left, other people came in, so you know how many people are in the house.  So I’m wondering why people just ...  it’s unusual that security people would just turn up, come out of their car and go straight into the house.
42.	The applicant replied that they had their own information to know who was in the house.  The Reviewer continued:-
	Yes, what I’m saying to you is that it’s normally basic procedure if you’re going to arrest people at a target that you don’t just turn up at an appointed time, you have somebody looking at the house so that, say if somebody like you leaves the house 10 minutes before they arrive, they know exactly where you are so they pick you up at the same time.  I find it very strange that a very professional intelligence organisation as you claim would just turn up into a house and miss you because you walked out of the house 10 minutes before.  That sounds very convenient and it doesn’t sound the way that intelligence services operate.
43.	The applicant replied:-
	So they did their operation really successfully, that was like a chance for me that I get out of the house and I was able to escape from there, otherwise they had really ... they took the target really nicely.  And they were professional as well.  They are there for information, they are professional because usually you are not trying to stay in the house or be in the house like four of us on that day, of course they knew that.  We are four, these people, they’re all in the house so that’s why they came.
44.	The Reviewer returned to the proposition that it was strange that such a professional organisation would let one person go on the same page and the applicant repeated, in effect, his answer on transcript page 15 that it was his good fortune not to be there at the time the authorities arrived.  
45.	When one looks at the transcript and the Reviewer’s decision, it seems clear to me that the gravamen of what the Reviewer put to the applicant was that he found it strange that an organisation as well-organised as he understood the applicant to say it to be would have simply walked in and arrested people without placing the premises under surveillance.  The references the Reviewer made were to a professional body, this being the Reviewer’s characterisation of what he understood the applicant to say.  In the passage I have set out above, the applicant confirmed the alleged professionalism of the persons concerned.
46.	In these circumstances, while it is true to assert that the applicant was not able precisely to say who those arresting persons were, it is clear in my view that the Reviewer’s use of the word “professional” in this context was entirely evidence-based (on what the applicant had in fact said to him) and was a perfectly reasonable distillation of the materials before him.  Accordingly, the Reviewer did not fall into error in the fashion asserted.  He did not ascribe a definition to them that was not open on the evidence, and nor did he misunderstand what the applicant was saying.  
Ground 2
47.	The second respondent committed a jurisdictional error by failing to address, or inadequately addressing, one of the claims made by the applicant.
Particulars
(a)	The applicant claimed that if he was forced to return to Iran there was a real chance that he would be seriously harmed for a Convention reason, being his breach of Shar’iah law and Islamic moral rules by his artistic activities.  
(b)	The second respondent rejected the applicant’s claim based on the finding that:
i.	no security force had raided his home and seized his artistic work, and his artistic work could not have come to the attention of the authorities in any other way;
ii.	none of the images drawn by the applicant were ‘pornographic’, ‘of a sexual nature’ or ‘featured caricatures of political figures’; and
iii.	the drawings were done by the applicant as a personal hobby and were never meant for public display.  
(c)	Further to making these findings, the second respondent then failed to consider:
i.	if the applicant’s drawings (or drawings that might be attributed to him) were of a nature that might nonetheless provoke persecution if discovered by the authorities;  and
ii.	whether there was a real chance that those drawings could be discovered by the authorities in the future.
48.	What this ground of application raised, as counsel made clear, was an alleged failure on the part of the Reviewer to consider a residual risk.  It was submitted that the applicant’s claim was based on his being an artist, a matter the Reviewer did not reject in terms.  What was submitted (see written submissions paragraphs 16 and 17) was that the Reviewer was still obliged, notwithstanding the factual findings made, to consider whether the applicant faced a real risk of persecution from the facts as the Reviewer found them to be.  
49.	The second aspect of this ground related to the possible exposure of the applicant’s work.  This could happen through private showing and was a claim that had not been addressed.
50.	The applicant’s oral and written submissions stressed that the applicant had claimed his fear of persecution on the basis of being an artist.  It is clear from paragraph 84 of the Reviewer’s decision (CB211) that the Reviewer accepted that the applicant had created drawings.  The criticism made can be put shortly.  It was submitted that, while the Reviewer found that the applicant’s work was wholly amateur and private, the Reviewer had simply not addressed the question as to whether this might give rise to persecution in any event.
51.	The second subset of the argument relating to the possible exposure of the works through private showings seems to me to ultimately be part and parcel of this aspect of the claim.  
52.	The first respondent’s submissions asserted that the Reviewer had covered all relevant matters.  
53.	The findings at paragraphs 84 and 85 (CB211) are as follows:-
	84. I believe that whatever drawing he did was done in a private and amateur capacity with no intent to display them publicly.  While it is possible that the claimant had drawn human figures, I do not accept that any of these were pornographic, of a sexual nature or likely to gain the attention of security forces.  I note that no examples of the claimants work were provided as part of his review hearing, that in his evidence he claimed that he had shown his family some of his pictures, but none of the ones that featured nudes, and that he had not come to the attention of the security forces for these activities.  Given the credibility issues previously identified, I believe that the applicant has embellished the claims regarding the public nature of his drawings whereas, in reality they were done as a personal hobby, were never meant for public display, never pornographic, nor did they feature caricatures of political figures.
	85. As a consequence, I do not believe that there is a real chance that the claimant will face persecution, either now or in the reasonably foreseeable future, for reasons of imputed political opinion against Iranian Government and pro-Western political opinion due to his breach of shar’iah law and Islamic moral rules because of his artistic activities.
54.	At paragraph 106 (CB214) the Reviewer went on:-
	The claimant is by his own admission a shopkeeper, and whatever drawings he did were for his private benefit.  Given that this pursuit is not known, he is cognisable in Iranian society as a shopkeeper rather than an artist.  Similarly, given that drawing is his past time done privately he is not cognisable as an artist, let alone one who is dissident through the subject matter that is addressed.
55.	This latter finding was, of course, made in considering whether the applicant was part of a particular social group.  
56.	I think there is some force in the applicant’s assertion that the Reviewer may not correctly have characterised the answers the applicant gave.  The applicant had said that he had drawn pornographic pictures and artistic nudes (see transcript page 5).
57.	The Reviewer rejected the assertion that the paintings were pornographic or of a sexual nature.  It is a fine line as to whether artistic nudes would come within that definition.  
58.	Reading the Reviewer’s decision fairly and as a whole, I think that the better view is that the Reviewer formed an active appreciation that the applicant’s artistic work was of a nature that would not transgress Islamic mores or Sharia law.  
59.	Further, the Reviewer found that the applicant’s drawings were done entirely in a private capacity and were not likely to come to the attention of the authorities in any event.  Minds might agree or disagree as to whether this was the appropriate finding, but in my view it was a finding that was open to the Reviewer to make on the evidence.
60.	Thus, even if the Reviewer might be said to have misunderstood the applicant’s position as to the nature of his drawings (something that, in my view, is by no means clearly established), the Reviewer’s ultimate finding that the applicant did not face persecution as a result would still be, in my view, effective.  It follows that this ground is not made out.  
Ground 3
61.	The second respondent committed a jurisdictional error by making a critical finding not supported by evidence.
Particulars
(a)	The applicant claimed that he feared persecution for reasons or having, or having perceived to have, abandoned Islam.
(b)	In rejecting the applicant’s claim, the second respondent found that he could ‘find no evidence’ in support of the applicant’s claim.
(c)	In fact, during the IMR interviews, the applicant gave evidence that:
i.	he does not believe in the tenets of Islam;  and
ii.	his family and others around him were aware that he does not participate in Islamic religious practices, nor subscribe to the moral views propagated by the Iranian regime when he resided in Iran.
(d)	There was also evidence before the second respondent in the form of country information that the Iranian Government actively enforces religious belief and practice and persecutes people who do not conform to the government’s religious expectations.
(e)	The second respondent’s finding that there was no evidence in support of the claim was, therefore, itself a finding unsupported by evidence.
62.	The applicant addressed grounds 3 and 4(a) and (b) together.  The first matter raised was the alleged error on the part of the Reviewer to find that there was no evidence supporting the applicant’s absence of belief in Islam.  The applicant pointed to his statement (at paragraph 12, CB 161), “I am afraid that if I was returned to Iran, I would be forced to practise Islamic rituals and prayers for a religion that I no longer believe in.”  He also referred to transcript page 7:  “I was also counted as a Muslim, but I never believed in Islam and I don’t believe in Islam.”
63.	The applicant’s written submissions point out that there was evidence as to the difficulties arising for apostates in Iran and it was put that, in finding that there was “no evidence” of the applicant’s apostasy, the Reviewer necessarily fell into jurisdictional error.
64.	The submissions of the first respondent concentrated, naturally enough, on the Reviewer’s findings.
65.	Counsel for the first respondent submitted that the use of the phrase “no evidence” should be seen in its proper context in the light of reading the Reviewer’s reasons fairly and as a whole.  It is a fact that at paragraphs 91-97 (CB212-213) the Reviewer set out in some detail his rejection of the applicant’s claims to have an interest in Christianity and to be at risk for apostasy.  At paragraphs 94-95 the Reviewer stated:-
	As a result of the inconsistencies in the claimant’s evidence regarding his desire to convert to Christianity, as well as his overall credibility issues, I do not accept that his interest in Christianity predated his arrival in Australia or that he has a current interest in Christianity and find that the claimant has engaged in his religious activities in Australia for the sole purpose of strengthening his claim.  As I advised the claimant during my interview with him, in these circumstances s.91R(3) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution.  
	I lend no weight to the evidence he has presented that he had a pre‑existing interest in, or is contemplating converting to Christianity, or that he would be perceived as having done so on return to Iran.  I therefore do not accept his claim that he has a genuine desire to convert to Christianity or that he would do so on return to Iran.  
66.	It is against those observations that the statement “Regarding his claim to fear persecution for reasons of having, or perceived to have abandoned Islam I can find no evidence to support this claim” is as set out.  Construed fairly, what I think the Reviewer was trying to say was that he did not accept that there was evidence that persuaded him of such a circumstance.
67.	It follows that ground 3 is not made out. 
68.	In so far as the applicant relies upon ground 4(a), I hope I do no disservice to counsel’s submissions when I say that this matter was not so far as I can recall pressed in any significant way either in the written submissions or in the oral submissions made before the Court. In so far as it might be thought to be pressed, I would only say that the Reviewer’s decision was not as simplistic as this ground would posit it. Plainly the applicant’s history of non-persecution was a relevant matter but in reading the Reviewer’s decision as a whole I do not think it can be fairly said that the Reviewer regarded this matter of itself as being determinative of the outcome of the proceeding. 
69.	In so far as ground 4(b) is concerned, namely the risk of persecution for how the applicant might be perceived by the authorities, I accept the submission of the first respondent at paragraph 4.30 and following. In particular I note footnote 54 where the submissions assert:-
	The Reviewer was cognisant of the need to consider not only the actual status of the applicant but also how the applicant might be perceived be others in Iran. Hence, the Reviewer referred to a claimed fear of persecution “for reasons of having, or [being] perceived to have abandoned Islam”(CB 212-213 [96]).
70.	In the face of this, a finding, in my view the assertion that the Reviewer fell into jurisdictional error in this regard is not made out. 
Ground 4
71.	The second respondent erred in law by applying the wrong legal test in his assessment of whether the applicant had a well founded fear of persecution.  
Particulars
(a)	The second respondent treated the applicant’s past history of non-persecution as determinative of whether he had a well founded fear of persecution.
(b)	The second respondent considered whether there was a risk of persecution because the applicant is a non-believer and does not participate in Islamic religious practices by reference to the applicant’s own classification of his religious affiliation, rather than by how his actions would be perceived by the agent of persecution.
(c)	The second respondent did not consider the totality of the applicant’s circumstances, including the cumulative effect of his non‑belief and non-practice of Islam, production of artistic nudes and status as a failed asylum seeker.
72.	The first two sub-grounds have already been addressed in substance under consideration of ground 3.  I note that at paragraph 97 (CB213) the Reviewer observed:-
	During his RSA interview the claimant claimed that he was a Shi’a Muslim until such time as he converted.  Given that he has not converted, nor shown an inclination to other than for the sole purpose of strengthening his claim, I believe that the claimant is a non-observant Shi’a Muslim.  As a result of the evidence available to me I do not accept that there is a real chance that the claimant will face persecution either now or in the reasonably foreseeable future for reasons of religion.
73.	Minds might differ as to whether the conclusion reached by the Reviewer was the appropriate one, but this is not an application for merits review.  The Reviewer has to be shown to have fallen into jurisdictional error in the sense described in the numerous authorities dealing with these matters.  In my view, the Reviewer understood the task that confronted him and applied himself to it.  If he has made a mistake of fact in this regard, it would not amount to jurisdictional error in this instance.  
74.	The final matter urged is the question as to whether the Reviewer considered the applicant’s claims put cumulatively.  The matter is set out in greater detail in paragraphs 39-44 of the applicant’s written submissions.  Essentially, the criticism made boils down to the proposition that the Reviewer’s report “contains no substantive analysis of how the matters relevant to each claim interact”.  
75.	Counsel for the first respondent, by way of response, asserted that the Reviewer had dealt with this matter at paragraphs 86-90 of the decision (CB211-212).  
76.	Those paragraphs dealt with the risks to the applicant should he return to Iran as a failed asylum seeker.  The Reviewer found that, in the applicant’s circumstances, he was at no such risk.  Having read the decision as a whole, I think that that finding was open to the Reviewer.  
77.	There is nothing in the applicant’s original claims (his drawings, his potential apostasy and his possible membership of a social group) that the materials suggest would necessarily be viewed in any different way simply because of the applicant’s return as a failed asylum seeker. It follows that this ground is also not made out.
Conclusion
78.	The applicant’s claims not being made out, it follows that the application should be dismissed with costs. 
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:  

Date:  27 June 2014