ADL17 v Minister for Immigration
[2020] FCCA 148
•4 February 2020
CIRCUIT COURT OF AUSTRALIA
| ADL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 148 |
| Catchwords: MIGRATION – Complementary protection – whether substantial grounds for believing there is a real risk applicant may suffer significant harm – whether principle enunciated in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs apply to complementary protection – whether such principle should be extended beyond its rationale – statutory construction – Appellant S395 principles not applied – Ground 2 rejected. MIGRATION – Judicial review – Authorities obligation to consider claims made expressly and those which arise clearly on the material before it – whether failure to exercise the jurisdiction conferred on the Authority – practical common sense approach to whether an unarticulated claim arose tolerably clearly from material before the Authority – Ground 3 rejected. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AB |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 |
| Other texts and materials cited: Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 |
| Applicant: | ADL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 52 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 April 2019 |
| Date of Last Submission: | 17 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 4 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.P.W. Maloney |
| Solicitors for the Applicant: | Baker McKenzie |
| Counsel for the Respondents: | Mr T. Goodwin |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The further amended application dated 25 March 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,464.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 52 of 2017
| ADL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Application dated 25 March 2019, the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) made on 15 December 2016 affirming a decision of a delegate of the first respondent to refuse his application for a Safe Haven Enterprise (subclass 790) visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
In summary, I am not satisfied that the Authority erred in its consideration of whether the applicant satisfied the criteria for refugee status and in particular what may happen if the applicant returned to Iran or whether he could then take reasonable steps to modify his behaviour. Nor am I persuaded on the very limited submissions made before me that the principles in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[1] should be applied to complementary protection under s 36(2)(aa) of the Act. Finally, I do not accept that there was error by the Authority in the asserted failure to consider properly what was described as the applicant’s ‘nuanced’ claim to protection based upon the further pursuit of some level of interest in Christianity.
[1] (2003) 216 CLR 473.
Background
The applicant, an Iranian citizen aged 33 years, arrived in Australia on 24 March 2013. The applicant travelled by air from Iran to Jakarta and then, when the boat on which he was traveling to Australia was intercepted, to Christmas Island as an irregular maritime arrival.
On 28 April 2013, the applicant participated in an irregular maritime arrival interview in which he stated the manner of his departure from Iran and that he had travelled with a friend. The interview record identified that the applicant had completed an Advanced Diploma of Commerce at Elmi Karbordi University, Babol, and that in the period 2011-2013 he had undertaken (but not completed) a Bachelor of Commerce at Elmi Karbordi University, Tehran. The employment details provided at his interview stated “retail, Persian dance class, DJ at parties, interior design for shops.” The applicant identified that his parents and two siblings resided in Iran and stated that if he returned to Iran he believed he would be imprisoned for having travelled to another country illegally.
On 20 April 2016, the applicant lodged his SHEV visa application, doing so with the assistance of a registered migration agent.
In a statement supplied with his application, the applicant stated he had been raised as a Muslim but that the Islamic faith was forced upon Iranians. He described being raised in a non-religious family and that his father did not believe in Islam but held beliefs in Zoroastrianism.
The applicant also stated that from about 2001, he had developed a passionate interest in music. The applicant stated that he taught himself guitar and drums and obtained employment as a DJ. He described how, in about 1998-99, a former music teacher had returned to Iran, told him that he was on a blacklist and for that reason the teacher was no longer able to perform music without being arrested. The statement recorded that the applicant did not know how the teacher knew of those matters but proceeded to speculate that he too may also have been monitored and detained due to his connection with that music teacher.
The applicant also stated that he had been one of six persons who supplied music and entertainment at a party in 2008. The applicant stated that the Basij arrived at the party where he was arrested, blind-folded and detained but released after his parents had paid the Basij not to lash him. The applicant described a further incident in 2009 in which he had been a DJ at the party of a friend’s sister and again being arrested by the Basij, beaten and, while wearing a shirt, given too many lashes to count. Again the applicant was released after his parents had met a demand for money. He gave an undertaking to the Basij to no longer engage in such conduct.
The applicant stated that from this time “I continued to work as a DJ but tried to limit my work and really only played for family. I loved music and saw this as part of my identity.” He also described: his participation in two mass protests in 2009 and to being beaten; opening a dance studio and a retail outlet for women’s clothing; having tattoos related to Freemasonry applied to his body; being beaten by the Basij; developing an interest in Christianity, and; having his dance studio and retail outlet closed by the authorities (in 2010 and 2012 respectively) at which point, he said, his parents had encouraged him to leave Iran.
The applicant also described his pursuit of Christianity in Australia while in detention, including his attending Sunday worship and of being baptised; but still maintaining a belief in God despite struggling with the idea of organised religion. Other aspects of his interest in Christianity are addressed further below in relation to Ground 3.
The applicant claimed to face a real chance of risk or risk of serious harm if he returned to Iran due to his interest in western culture, incorporating his ambition for a career in music and dance, his involvement with Christianity and his tattoos (which he had been careful to conceal while in Iran). He identified himself as a person affected by “the data breach”.[2]
[2] The data breach issue was not advanced in this court.
On 12 August 2016, the applicant’s registered migration agent provided the Department with submissions outlining the applicant’s claims for protection. The agent’s submissions identified and expanded upon each of the applicant’s claims and stated that “these characteristics are fundamental to the Applicant’s identity and he could not take steps to modify them as per Section 5J(3)(b) and (c)(i).” The submissions identified country information in support of the claims.
On 25 August 2016, a delegate of the Minister refused to grant the applicant a SHEV. The delegate’s decisional record provided a detailed analysis of the applicant’s claims and the reasons for refusing the SHEV.
The delegate formed the view that although some elements of the applicant’s written and oral submissions were credible, there were other elements that had been exaggerated or fabricated so as to enhance his claims for protection. The delegate accepted the applicant had tattoos which had connections to Freemasonry and that he had worked as a musician/DJ whilst in Iran. However, the delegate was not satisfied that the applicant’s claims to have converted to Christianity were genuine. The delegate also accepted that a data breach by the Department meant that the Iranian government may have accessed information released on the Department’s website and that the applicant may be recognised as a failed asylum seeker if he returned to Iran. However, the delegate was not satisfied that these facts, individually or cumulatively, would result in the applicant facing a real chance or risk of serious or significant harm.
On 29 August 2016, the Authority advised the applicant that the delegate’s decision to refuse his visa application had been referred to it for review. On 14 September 2016, the applicant’s authorised migration agent provided the Authority with written submissions.
On 15 December 2016, the Authority affirmed the decision to refuse the applicant’s visa application and provided reasons for doing so (Reasons). I address those Reasons in the context of the grounds of review.
Procedural history
On 11 January 2017, the applicant filed an application for judicial review of the Authority’s decision. The applicant also furnished an affidavit exhibiting a copy of the Authority’s Reasons and character references from Thornbury Community Church, a Commonwealth senator and from an organisation, Labor for Refugees.
By a Response filed on 25 January 2017, the Minister opposed the orders sought, doing so on the basis that the application did not establish any jurisdictional error in the decision of the Authority.
On 14 and again on 15 August 2017, the applicant’s lawyers filed an amended application by which the applicant abandoned the original grounds of review and substituted two new grounds of review.
On 25 March 2019, orders were made, by consent, providing for the applicant to file and serve a further amended application together with a supporting affidavit which exhibited a USB containing audio recordings of the applicant’s arrival and SHEV interviews and transcripts of those recordings.
By the further amended application dated 25 March 2019, the applicant amended Ground 1, abandoned Ground 2 and added two further grounds of review.
Consideration
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[3] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[3]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
By s 65(1)(b) of the Act, an administrative decision-maker, upon considering a valid application, is obliged to refuse to grant a visa if not satisfied that the criteria prescribed by the Act or Regulations have been satisfied. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[4] the plurality considered the true nature of the Minister’s decision-making function under the Act as being conditioned upon achievement of the state of satisfaction for which s 65 provides.
[4] (1996) 185 CLR 259, 274-5.
In Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003,[5] Black CJ, Sundberg and Bennett JJ affirmed that “In the absence of that satisfaction, the section requires the delegate to reject the application” and that “As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.” The process of achieving satisfaction is necessarily evaluative and requires the decision-maker to decide, upon the materials and arguments before him or her, whether the claim has been made out.[6] Again, in Minister for Immigration and Multicultural Affairs v Lay Lat,[7] Heerey, Conti and Jacobsen JJ affirmed that Wu Shan Liang and VSAF of 2003 made clear that s 65 requires an administrative decision-maker “to refuse to issue a visa in the absence of a positive finding of satisfaction.”
[5] [2005] FCAFC 73, [16]-[17].
[6]Abebe v The Commonwealth (1999) 197 CLR 510, 187; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [38].
[7] (2006) 151 FCR 214, [72]-[73].
Ground 1 – modification of behaviour
Although the parties were agreed that Grounds 1 and 2 of the further amended application could be considered together, it is convenient that they be considered in turn. Ground 1 reads:
The decision of the Immigration Assessment Authority (Authority) is affected by jurisdictional error, in that the Authority
misconstruedfailed to perform the statutory task which fell to it,and/or alternatively, took into account an irrelevant consideration or failed to consider the Applicant’s claim, pursuant to s 5J(3) of the [Act].Particulars
a.Section 5J(3) of the Act stipulates, inter alia, that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour so as to avoid a real chance of persecution, other than a modification that would conflict with a characteristic that is fundamental to a person’s identity or conscience, or conceal an innate or immutable characteristic of the person.
b.The Authority accepted or assumed that the Applicant’s expression of his interest in music and dance through performance was a fundamental characteristic of his identity or an innate and immutable characteristic of his person.
c.The Authority further found that the Applicant could avoid a real chance of persecution ‘by exercise[ing] some discretion’, taking ‘reasonable steps . . . to modify his behaviour’ and expressing his interest in music and dance ‘underground’ and ‘with caution’: Reasons [33]
d.The latter finding was not open. Section 5J(3) of the Act prohibits the finding that there is no real chance of persecution, where it is premised on an exception of behaviour modification which conflicts with a fundamental characteristic of a person’s identity or an innate or immutable characteristic of the person. Accordingly, the Authority misconstrued its task and fell into jurisdictional error.
As appears below, this ground of review was framed in terms which captured the error of law that was upheld by a 4:3 majority in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[8]
[8](2003) 216 CLR 473, [35], [43] (McHugh and Kirby JJ), [63], [88]-[89] (Gummow and Hayne JJ); cf [11] (Gleeson CJ, diss’); 112 (Callinan and Heydon JJ).
The substantive basis on which Ground 1 was advanced was that it was not open to the Tribunal to find that the applicant could avoid a real chance of persecution by exercising some discretion or taking reasonable steps to modify his behaviour, or otherwise expressing his interest in dance and music with caution. The submission that this finding was not open rested upon a premise that such modifications in behaviour conflicted with a fundamental characteristic of the applicant’s identity or with an innate or immutable characteristic of his person.
By framing the challenge in this way, the applicant characterised his interest in dance and music through performance as constituting a fundamental characteristic or as constituting an innate or immutable characteristic of his identity. The applicant thereby sought to invoke the exclusions enacted by par 5J(3)(a)-(b) of the Act where otherwise s 5J(3) would have precluded a conclusion that he faced a well-founded fear of persecution and so fell within the definition of ‘refugee’.
By way of overview, Ground 1 was expressed in a conclusory form and sought to elevate the applicant’s interests in dance and music to the status of fundamental or innate or immutable characteristics of his identity without addressing whether modifications of his behaviour as considered by the Authority would conflict with such characteristics.
Applicable principles
Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to remain in Australia.[9] Sub-section 35A(3A) of the Act creates a class of temporary Protection visa known as a Safe Haven Enterprise Visa. The criteria for the grant of any class of Protection visa include those set out in s 36 of the Act.[10] Under Sch 1 of the Migration Regulations 1994 (Cth), there is a class of visas called “Safe Haven Enterprise Visas”.[11] Clause 790.221(2) of Sch 2 provides that a criterion to be met at the time of the decision is that the Minister is satisfied that s 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
[9] Act, s 29(1)(b).
[10] Act, s 35A(6)(a).
[11] Regulations, reg 2.01(2), Item 3A.
A criterion for the grant of a Protection visa is that the person is a ‘refugee’,[12] a term defined by s 5H(1)(a) as meaning, relevantly, that a person, who is outside their country of nationality, and owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.
[12] Act, s 36(2)(a). Complementary protection is afforded by s 36(2)(aa) of the Act.
It is the responsibility of a person claiming a Protection visa that he or she specifies all particulars of their claims for protection and provides sufficient evidence to establish their claims.[13]
[13]Act, s 5AAA; AWL17 v Minister for Immigration and Border Protection [2018] FCA 570, [43] (Bromwich J).
Section 5J supplies the meaning of the expression well-founded fear of persecution for the purposes of the application of the Act and is structured in a manner to identify persons who have such a fear and those who do not. The cumulative requirements of sub-s 5J(1) provide that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and there is a real chance that, if returned to their receiving country, the person would be persecuted for one or more of those reasons and that real chance related to all parts of that receiving country. If a person fears persecution for one or more of those reasons, that reason must be the essential and significant reason for the persecution, the persecution must involve serious harm[14] and the persecution must involve systematic and discriminatory conduct.[15]
[14] Act, s 5J(5).
[15] Act, s 5J(4).
In the determination of whether a person has a well-founded fear of persecution, any conduct engaged in by a person in Australia is to be disregarded unless he or she satisfies the Minister that he or she had engaged in that conduct otherwise than for the purposes of strengthening their claim to be a refugee.[16]
[16] Act, s 5J(6).
As concerns a claim to be a member of a particular social group, s 5L relevantly provides that a person is to be treated as a member of a particular social group (other than the person’s family) if:[17]
(a)a characteristic is shared by each member of the group; and
(b)the person shares, or is perceived as sharing, the characteristic; and
(c)any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
[17]The requirements in s 5L derive largely from but in some respects expand upon the judgments in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 242, 263-264, 286 and Applicant S v Minister for Immigration and Multicultural Affairs(2004) 217 CLR 387, [36], [63]-[68], [98].
(d)the characteristic is not a fear of persecution.
While persecution covers many forms of harm, whatever form it may take, the harm will constitute persecution only if, by reason of its intensity or duration, the person cannot be expected to tolerate it.[18] To that end a non-exhaustive definition of the expression ‘serious harm’ is now supplied by s 5J(5) of the Act.
[18]Appellant S395/2002, supra (2003) 216 CLR 473, [40] (McHugh and Kirby JJ); cf [66] (Gummow and Hayne JJ), [107] (Callinan and Heydon JJ) “There is a great difference however between persecution and disapproval” and at [109] “The distinction between criminal sanctions and persecution is not yet a settled one”.
For the purposes of the application of the Act to a particular person, a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in their receiving country. Relevantly, s 5J(3) provides:
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) Conflict with a characteristic that is fundamental to a person’s identity or conscience; or
(b) Conceal an innate or immutable characteristic of the person; or
(c). . .
By s 5J(3), modification of conduct can be required of a person so as to remove them from the spectre of a well-founded fear of harm if the modification does not go so far as to compromise essential terms of the definition of ‘refugee’ as set out in s 5H. That is, “a person cannot claim to have a well-founded fear of persecution if reasonable steps could be taken to avoid a real chance of that persecution by modifying their behaviour provided that the modification does not entail any of the matters listed in s 5J(3)(a), (b) or (c)”: AWL17 v Minister for Immigration and Border Protection.[19]
[19] [2018] FCA 570, [50] (Bromwich J).
Much emphasis was placed upon the decision in Appellant S395,[20] a decision made prior to the commencement of s 5J(3). Appellant S395 informed the proper approach to the effect of modification of behaviour in deciding whether a person’s claim to hold a well-founded fear of persecution satisfied the definition of ‘refugee’. Curiously, a difficulty which arose in that case is that the appellants had not raised any issue of modifying their behaviour because they feared persecution.[21] This difficulty provides much of the explanation why the Court was split 4:3 in the decision. The special importance of the appeal was that it presented for consideration whether the imposition of a requirement to be discreet so as to avoid persecution effectively reversed the Convention requirement that a state give protection from persecution, including in cases where a member of a particular social group might be required (as was said) to conceal the fact of their membership of a particular social group so as to avoid the risk of such harm.[22]
[20] (2003) 216 CLR 473.
[21](2003) 216 CLR 473, [39] (McHugh and Kirby JJ); cf [1], [11] (Gleeson CJ), [84] (Gummow and Hayne JJ), [100], [103] (Callinan and Heydon JJ).
[22] (2003) 216 CLR 473, [103] (Callinan and Heydon JJ).
In Appellant S395, the Tribunal had found that although homosexuality was unacceptable in Bangladesh, the appellants (being homosexual), had previously conducted themselves in a discreet manner such that there was “no reason to suppose that they would not continue to do so if they returned home now’. Upon that finding, the Tribunal had not been satisfied they faced a real chance of harm. An application for judicial review and an appeal from that application were unanimously dismissed.
In allowing the appeal, McHugh and Kirby JJ considered that the Tribunal had erred by failing to consider why the applicants would live discretely, and ‘whether that was a voluntary choice uninfluenced by the fear of harm if they did not do so’.[23] Their Honours held that:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
[23] (2003) 216 CLR 473, [35] (McHugh and Kirby JJ).
Gummow and Hayne JJ held:
But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
Their Honours emphasised that consideration of the central question – whether a person held a well-founded fear of persecution – required that an essentially individual and fact-specific inquiry be made and that it was accordingly wrong to analyse the issue from the perspective that a person must be expected to live in a discreet manner.[24]
[24] (2003) 216 CLR 473, [78], [82]-[83].
Gummow and Hayne JJ considered that the Tribunal had been distracted from addressing the critical question; namely, whether the appellants were likely to live in a particular way that would, or would not, give rise to a well-founded fear of persecution.[25] Their Honours’ reasoning confirms that the determination of this question engaged the subjective and objective elements of the definition of ‘refugee’: (a) does the applicant hold a subjective fear of persecution?; (b) is that fear well founded? – an inquiry which required close consideration of the position of the particular applicant and a predictive analysis of what was likely to happen if the person was returned to their country of origin.[26]
[25] (2003) 216 CLR 473, [78], [84], [88].
[26] (2003) 216 CLR 473, [72]-[77].
As to the dissentients, Gleeson CJ, and in a separate judgment, Callinan and Heydon JJ, grounded their decisions on findings that the applicants’ claims as to the basis on which they feared persecution had been “comprehensively disbelieved”[27] and “not only full of inconsistencies but also of improbabilities.” Their Honours also considered that on a fair reading of the Tribunal’s reasons, the Tribunal had neither counselled nor required the appellants to live discreetly.[28] As their Honours viewed the matter, the issue addressed by the majority had not arisen for consideration by the Tribunal at all.
[27] (2003) 216 CLR 473, [3], [112].
[28] (2003) 216 CLR 473, [10], [110].
Of relevance to the applicant’s reliance on Appellant S395, was the statement by McHugh and Kirby JJ that insofar as earlier decisions had held that asylum seekers may be required, or could be expected, to take reasonable steps to avoid persecutory harm, such decisions were wrong and ought not be followed.[29] It is therefore useful to examine authorities which have considered Appellant S395.
[29] See, eg, (2003) 216 CLR 473, [50] (McHugh and Kirby JJ).
In Minister for Immigration and Multicultural and Indigenous Affairs v VWBA[30]the Full Court stated the following summary of the principles that were to be derived from Appellant S395:
(a)The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do.[31]
(b)If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error.[32]
(c)The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.[33]
[30] [2005] FCAFC 175, [6].
[31]Citing S395 at [40], [50] (McHugh and Kirby JJ); [80], [82] (Gummow and Hayne JJ).
[32] Citing S395at [43], [53] (McHugh and Kirby JJ); [88] (Gummow and Hayne JJ).
[33] Citing S395 at [56] (McHugh and Kirby JJ); [85]–[86] (Gummow and Hayne JJ).
Again, in SZATV v Minister for Immigration and Citizenship,[34] Kirby J emphasised that in Appellant S395, the Tribunal’s “error lay in failing to consider how the applicants in that case would in fact act and whether such conduct would involve a real chance of persecution on one or more of the Refugees Convention grounds.” His Honour’s reasoning emphasises the prospective nature of the evaluative task that is required.
[34] (2007) 233 CLR 18, [85] and see [86-[89].
In Minister for Immigration and Border Protection v SZSCA,[35] the plurality observed in relation to Appellant S395 that the Tribunal’s error in that case turned on its reasoning that, because the appellants who had lived openly as homosexuals in the past, there was no reason to suppose they would not continue to do so if returned to Bangladesh stating: [36] “The Tribunal failed to consider the question it had to decide – whether the applicant had a well-founded fear of persecution. The question for the Tribunal was whether there was a real chance that, upon return to Bangladesh, the applicants would be persecuted for a Convention reason. This had not been addressed.” French CJ, Hayne, Kiefel and Keane JJ further stated:
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.
[35] (2014) 254 CLR 317.
[36] (2014) 254 CLR 317, [15] (French CJ, Hayne, Kiefel and Keane JJ).
In SZSCA, Gageler J (who had appeared in Appellant S395), observed that Appellant S395 was concerned with the third element of the definition of ‘refugee’; namely, that the fear of persecution for a Convention reason must be “well-founded”,[37] and stated:[38]
The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.
His Honour endorsed reasoning that the rationale for that principle was that “[i]f the price that a person must pay in order to avoid persecution is that he must conceal his . . . membership of a social group . . . then he is being required to surrender the very protection that the Convention is intended to secure for him.” [39] Gageler J stated that Appellant S395 should not be extended beyond its rationale and had no application to a person who would or could be expected to hide or change his or her behaviour “for some reason other than a fear of persecution.”[40]
[37] (2014) 254 CLR 317, [35].
[38] (2014) 254 CLR 317, [36].
[39](2014) 254 CLR 317, [36] citing HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596, [110] (Dyson JSC).
[40] (2014) 254 CLR 317, [37].
In my view it is settled that “the tribunal may err if it assesses a refugee claim on the basis that an applicant is required or expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The risk of harm must be assessed on the basis of what an applicant will do, rather than what he or she could or should do”: SZSZM v Minister for Immigration and Border Protection.[41]
[41][2014] FCA 984, [66], [71] (Katzmann J) citing Appellant S395 (2003) 216 CLR 473, [40], [50] (McHugh and Kirby JJ); [80], [82] (Gummow and Hayne JJ).
More than a decade after Appellant S395, the holding in that appeal was addressed by the Parliament legislatively by the insertion of s 5J(3) into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act),[42] which commenced operation on 18 April 2015.
[42] Act 135 of 2014.
It was submitted that s 5J(3) of the Act qualified the ambit of the holding in Appellant S395. In support of that submission, I was taken to the Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (EM). While recourse to such material may be used to confirm (rather than displace) the meaning of a statutory provision,[43] I note that the intended effect of the section was explained in the EM as being to: “clarify that any assessment of whether a person has a well-founded fear of persecution is to take into account not only what a person would do to avoid a real chance of persecution . . . but also what ‘reasonable steps’ they could objectively take to avoid persecution.”[44]
[43]Acts Interpretation Act 1901, s 15AB(1)(a); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47].
[44] EM, cl 1194.
The effect of s 5J(3) was described in the EM as being that “a person who could avoid a real chance of persecution by taking reasonable steps to modify his or her behaviour, would be found not to have a well-founded fear of persecution. This is provided that the modification of behaviour required to avoid the persecution does not conflict with the characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic of the person.” The EM further stated that:[45] “As the new subsection 5J(3) imports a consideration of ‘reasonable steps’ and is qualified by new paragraphs 5J(3)(a) and 5J(3)(b), the government considers that new subsection 5J(3) is not inconsistent with the principles enunciated . . . in S395.”
[45] EM, cl 1194.
In explaining s 5J(3)(a) in particular, the EM distinguished between fundamental and non-fundamental aspects of ‘conscience’ (as distinct from identity): “A modification in behaviour which is contrary to any aspect of ‘conscience’ will not necessarily indicate that the person could not take reasonable steps to avoid a real chance of persecution. Only a modification of behaviour that is fundamental to the person’s conscience will be relevant for the purposes to the new paragraph s 5J(3)(a).”[46] While this discussion in the EM was confined to the question of ‘conscience’, it is apparent that s 5J(3)(a) of the Act create exceptions grounded upon characteristics that are fundamental to a person’s identity or conscience. By parity of reasoning with this discussion in the EM, equally a modification of behaviour that was fundamental to a person’s identity would also be relevant for the purposes of par 5J(3)(a). It follows that a modification to identity does not necessarily indicate that a person could not take reasonable steps to avoid a real chance of persecution. Where the issue of identity is raised, only a modification that is objectively fundamental to a person’s identity will be relevant as bringing that identity within the exception created by par 5J(3)(a).
[46] Ibid.
In ESD17 v Minister for Immigration and Border Protection,[47] Rangiah J held that nothing in the EM contained any indication that the principles in Appellant S395 should not apply in the consideration of par 5J(3)(b). His Honour further considered that they should apply “at that stage of the decision making process”. By extension, the same would also apply at that stage of the decision-making process for par 5J(3)(a).
[47] [2018] FCA 1716, [29].
In AWL17 v Minister for Immigration and Border Protection,[48] Bromwich J explained the Parliament’s rationale for enacting s 5J(3) as being to confine the application of Appellant S395 in these terms:
. . . Appellant S395 was addressed by Parliament legislatively, not to curtail that case in its terms but, rather, to confine the scope of its potential application to the sort of case in which it arose. The current manifestation of that legislative response is contained in part of s 5J, a provision which defines in some detail the Refugees Convention concept of a “well-founded fear of persecution”, being an aspect of what is necessary for refugee status and the grant of a protection visa under ss 5H(a) and 36(2)(a) respectively. Section 5J(3) provides:
. . .
The outcome in Appellant S395 would have been the same had s 5J(3) existed at the time it was decided. However, s 5J(3) operates so that modification of conduct can be required if it does not go so far as to compromise the essential terms of the Refugees Convention, now set out in s 5H. Thus, a person cannot claim to have a well-founded fear of persecution if reasonable steps could be taken to avoid a real chance of that persecution by modifying their behaviour, provided that the modification does not entail any of the matters listed in s 5J(3)(a), (b) or (c). Other exclusions of such conduct contained in s 5J do not require consideration in this case.
Later Bromwich J stated:[49]
The whole point of enacting s 5J(3) was to confine the scope of the application of Appellant S395 to Convention-like reasons for modifying behaviour. If, as a result of the modification of behaviour of the kind required by s 5J(3), there was either no harm at all, or harm falling short of serious harm, then no further inquiry is required on that aspect of the claim of a well‑founded fear of persecution. The only circumstance in which that does not apply is if the modification of behaviour is of a kind that does not fall within s 5J(3), so as to be back within the operation of Appellant S395 (as essentially covered by the terms of paragraphs (a), (b) and (c) of s 5J(3)).
AWL17 does not appear to have been further considered. I note that an application for special leave to appeal from the decision was refused.[50]
[48] [2018] FCA 570, [40]-[41].
[49] [2018] FCA 570, [50].
[50] [2018] HCASL 279 (Bell and Nettle JJ).
More recently, it has been suggested that the ‘key’ to Appellant S395 is that the Tribunal had not asked whether the reason why the appellants had lived discreetly was because they feared persecution: FTQ17 v Minister for Home Affairs.[51] There, Steward J further observed that Appellant S395 had concerned the Act before the amendments made to it by the Amending Act and that in the subject appeal, “the findings it made about the likelihood of persecution were based upon the appellant continuing to behave as he had in the past in Iran.”[52]
[51] [2019] FCA 2025, [22] (Steward J).
[52] [2019] FCA 2025, [25].
Resolution
The determination of whether the Authority’s decision is tainted by jurisdictional error requires consideration of the statutory context in which it was obliged to form a state of satisfaction that the criteria for the grant of a SHEV were satisfied. Relevantly, that statutory context included whether the applicant had demonstrated that he had a “well-founded fear of persecution” within the meaning of s 5J of the Act.[53]
[53] BOO17 v Minister for Home Affairs (No 2) [2019] FCA 329, [26].
The essential issue raised by Ground 1 was whether the Authority had properly applied the definition of ‘refugee’ for the purposes of determining whether the applicant satisfied this criterion for protection.
The applicant submitted he had asserted at several points in the course of the SHEV application process that as the expression of his interest in music and dance was: (i) a fundamental characteristic of his identity, and/or; (ii) an innate or immutable characteristic of his person – he could not take reasonable steps to modify such characteristics. Contrastingly, the Minister submitted that the applicant had only advanced his case on the first of those bases. For the reasons that follow, I consider that the applicant sought to invoke the exception in par 5J(3)(a) and not that conferred by par 5J(3)(b) of the Act.
Paragraphs 5J(3)(a)-(b) of the Act create separate exceptions to the exclusion provided by s 5J(3) of steps which a person could take to modify his or her behaviour and so fall beyond the definition of a well-founded fear of persecution provided by s 5J(1). Those exceptions are defined in terms of modified behaviour that would: (a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or (b) conceal any innate or immutable characteristic of the person. While the EM did not address the scope of ‘identity’, it stated however, that ‘conscience’ was intended to “encompass aspects such as religion, political opinion and moral beliefs.”[54] Further, it stated that:[55]
The reference to an “innate” characteristic is intended to include inborn characteristics, which could be genetic. Innate characteristics could include aspects such as the colour of a person’s skin, a disability that a person is born with or a person’s gender. The reference . . . to an “immutable” characteristic is intended to encompass a shared common background that cannot be changed. This could be an attribute which the person has acquired at some stage of his or her life such as the health status of being HIV positive, or a certain experience such as being a child soldier, sex worker or victim of human trafficking. For example, a person who faces persecution only for their history as a prostitute could not avoid that persecution by ceasing prostitution work in the future.
[54] EM, cl 1191.
[55] EM, cl 1193.
Having regard to those matters, it would appear that the essential basis for the applicant’s claims fell within the concept of his identity rather than any notion of conscience or an innate or immutable characteristic.
Although the Minister submitted that in the end, little turned upon this issue, I prefer the Minister’s submission that 5J(3)(b) had not been relied upon or engaged. It is not unimportant to recognise the principle stated in Appellant S395 by Gleeson CJ who emphasised that the decision of a Tribunal must be considered in light of the basis on which the application had been made and not on some entirely different basis.[56] As the applicant’s submissions were made in somewhat generalised terms, it is necessary to examine this aspect of the application and its history.
[56] (2003) 216 CLR 473, [1], [12], [14].
By his statement dated 20 April 2016, the applicant stated at [21] that “After this I continued to work as a DJ but tried to limit my work and only really played for family. I loved music and saw this as part of my identity.” In my view, this statement did not refer to or readily identify any innate or immutable aspects of the applicant’s person in the sense considered in the EM referred to above.
Further, by the submissions lodged on 12 August 2016, it was said that the applicant was at a real risk of persecution including by reason that “As a professional musician who has previously been detained by Iranian authorities for his interest in music, a fundamental characteristic of his identity, and would likely experience further harm.” In section 6 of that submission, reference was made to country information in which the repression of heavy metal and foreign music was identified and this in turn was said to lend credibility to his claims of having been arrested, detained and subject to ill-treatment. Further, reference was also made to country information which identified reports of dancing being illegal and of persons being arrested for doing so. This was submitted to add to the credibility of his claims, including that: “if the Applicant were to return to Iran and continue to express his interests in dance and music which are fundamental characteristics of his identity, he would likely be arrested, detained, and subjected to serious harm.” Relevantly, those submissions also did not refer to any innate or immutable aspects of the applicant’s person.
Finally, in the submissions made to the Authority dated 14 September 2016, the applicant’s migration agent addressed the topic, Modification of behaviour, but focussed almost entirely upon the apparent significance of his tattoos and the need to keep them covered. This submission gave, at best, only passing reference to music or dance as issues arising in the context of the need for modification of behaviour.
It was for the applicant to specify all particulars of his claims for protection and to provide sufficient evidence to establish such claims.[57]
[57]Act, s 5AAA; AWL17 v Minister for Immigration and Border Protection [2018] FCA 570, [43] (Bromwich J).
From my reading of his statement and submissions, I consider the better view is that the applicant had distinctly advanced a claim that his interest and practice of music and dance was a characteristic that was fundamental to his identity and that he thereby sought to engage the exception in par 5J(3)(a). By contrast, I do not consider that the applicant had expressly asserted that, as concerned music and dance[58], he would be required to conceal an innate or immutable characteristic of his person, thus relying on par 5J(3)(b). While this alternative claim was at best one which arose from materials that the applicant had placed before it, the Authority considered it: [33]. It was not satisfied that the applicant faced a real chance of suffering harm in relation to his past or future music or dance activities on that basis: [34].
[58] Reliance in respect of religion and tattoos was pressed in relation to Ground 3 alone.
Otherwise, it was not in issue that the applicant advanced his claim as a member of a particular social group identified as being persons who expressed and practised their interest in dance and music in Iran. The Authority clearly examined and accepted that this was the way in which the claim had been made: [3], [21]-[34], [63].
The fundamental question which then arose was whether the Authority addressed the correct question in relation to a well-founded fear of persecution. The Reasons, which were comprehensive in their consideration of this claim, recorded that while the applicant had opened an Iranian dance class, so as to avoid discovery, he had kept the classes small and invited only people whom he knew: [3].
The Authority squarely identified that the applicant claimed his interest in music to be a fundamental characteristic of his identity: [21]. It considered his evidence in relation to his claims to have been arrested and detained as a result of his work as a DJ as coherent and sufficiently detailed and consistent: [22].
It considered country information that confirmed the impact of Iranian censorship on Western music and that musicians required a licence to perform. It considered information relating to the practice of paying bribes to be able to play more modern music and that fees were also extracted for doing so: [22]. For those reasons, the Authority accepted the applicant’s claims to have been: detained in 2008 and 2009 after being apprehended for working as a DJ; fined and lashed; made to sign undertakings; fingerprinted; having his equipment confiscated; playing modern Western music, and; conducting his dance studio: [23]-[24].
However, the Authority did not accept, and rejected as speculative, that the applicant had been monitored or detained because of his connection to his music teacher, observing that he had worked professionally since 2004 yet been arrested on only two occasions (in 2008 and 2009), suggesting that these had been random incidents: [25].
The Authority also found that the applicant was not of ongoing interest as a result of past arrests and noted the historic nature of those arrests. It also recognised that the applicant had been able to obtain a passport and leave Iran without incident. In all of those circumstances, it did not accept that the applicant had an existing profile such that he was of any continuing interest to the authorities: [26].
The Authority examined in detail whether the applicant faced a real chance of suffering serious harm if he was to return to Iran and for that purpose it considered a range of country information: [27]-[32].
The Authority recognised that prominent artists and others had faced prosecution for their artistic expression where it was perceived to be anti-Islamic or to contain political messaging. It also accepted that:
a)there was an ongoing underground music scene in which concerts were held secretly and involved the playing of popular genres including rock, hip-hop and R&B: [27];
b)numerous reports existed of the arrests of musicians who performed without a licence. Heavy metal and foreign music was considered to be religiously offensive as were the making of recordings with offensive political content: [28];
c)there were reports following a change of government in 2013 of: a relaxation of attitudes towards music, including by the acceptance of mixed-sex pop concerts; allowing performances by persons whose music had hitherto been considered illegal for being too Western; the greater availability of licences to perform music; the indication that potentially controversial bands were announcing their concerts in advance; the description by Iranian musicians that there was a growing openness by government towards music, and; an apparent tolerance for the releasing of music albums despite no permission having first been obtained: [29];
d)despite ongoing restrictions and suppression of underground music coupled with criticism of government for failing to do more to achieve a relaxation of attitudes towards music, nonetheless, the playing of Western music in public was regularly observed: [30].
The Authority then considered the chance of the applicant suffering harm in light of that information. It paid regard to the 2008, 2009 and 2010 incidents in which the applicant had been involved and observed that the human rights situation had deteriorated following the 2009 election. It also observed more recent country information indicated that the Basij, despite being unpredictable, had been less visible on the streets, less assertive and generally more respectful in their interactions with Iranians than had been the case earlier: [31].
The Authority considered that the information respecting arrests of underground musicians appeared to relate to recording and performing artists who possessed a high profile or international connections. On the information before it, the Authority found that, “even prior to scaling down his activities following his arrest, the applicant lead a group of musicians who played at functions such as weddings and parties.” It found that there was no evidence the applicant had ever sought to distribute his work or had held concerts. It did not accept that he had the type of profile of persons who were sought by the authorities, and was not satisfied that there was a real chance he would again come to the attention of authorities if he was to carry out musical activities of the kind that he had undertaken in the past. The Authority concluded at [32]:
. . . Although I accept the submissions regarding the unpredictability of the Iranian authorities . . . , in light of the information suggesting lower Basij activity, the frequency at which Western music is publically [sic] played in Iran despite the restrictions, and at least some relaxation of restrictions, I am not satisfied that there is a real chance that the applicant would again come to the attention of the authorities if he were to carry out music and dance activities as he has done in the past, such as performing at private functions such as weddings and parties and conducting small dance classes.
Against that background the Authority considered whether the applicant would be likely to modify his behaviour: [33]. As this aspect of the Authority’s Reasons are the subject of particular focus, it is convenient to restate them in full:
I accept that these findings entail a need to exercise some discretion, in that the applicant’s activities must be carried out ‘underground’ and with caution. However, I find this to be a reasonable step the applicant could take to modify his behaviour. Much of the music and dance seen in Iran is underground, and the applicant operated this way in the past. He will be able to continue to express and pursue his interest in music and dance, and although taking such steps may limit his ability to earn an income solely from these activities, he also has previous experience in the retail and design industries and I do not accept that the inability to earn a living solely through music and dance will threaten his capacity to subsist or is otherwise unreasonable. I have considered the submission that expression of his interest in music and dance are fundamental characteristics of his identity but find that the applicant will be able to continue to express those interests. I do not accept that doing so underground conflicts with that characteristic or requires him to conceal it or to make any of the modifications listed in s 5J(3)(c). I find that there are reasonable steps the applicant could take to modify his behaviour so as to avoid a real chance of persecution.
In my opinion, it is clear from a fair reading of the Reasons that the Authority had not committed jurisdictional error in finding that any modification by the applicant of his behaviour associated with his interest and career in music and dance would not conflict with any suggested fundamental characteristic of his identity. In particular, I accept the submission that the findings at [33] should be read in light of the matters addressed at [32]. It was open for the Authority to find that the applicant could exercise discretion and carry out his activities underground as a reasonable step to modify his behaviour without conflicting with his interest in music and dance, being characteristics that were accepted as being fundamental to his identity, because:
a)the applicant did not face a real chance of serious harm based on his profile if he continued to carry out music and dance activities as he had done in the past;
b)country information suggested that much of the music scene was underground and the applicant had previously conducted his music career in such a way;
b)the applicant could continue to subsist based on both his music activities and his previous experience in the retail and design industries;
c)the applicant would continue to be able to express his interests in both music and dance;
d)country information confirmed a growing tolerance of musical performances, including of Western music, as described above.
Contrary to the applicant’s submissions I do not accept that the Authority failed to consider why the applicant had behaved discreetly in the past. On the whole of its Reasons, it properly examined that issue.
I consider that the Reasons demonstrate the Authority adopted, in effect, a four phased analysis of the matter by giving consideration to whether: (a) the applicant held a well-founded fear of persecution by reason of his membership of a particular social group: s 5J(1)); (b) the applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution: s 5J(3); (c) modification of the applicant’s behaviour were such as would: (i) conflict with his identity as a musician and dancer in a way that was fundamental to that identity: s 5J(3)(a); (ii) require him to conceal those aspects of his character (s 5J(3)(b).
In brief, the Authority found that the applicant did not face a real risk of harm. It considered country information in doing so and recognised that the applicant’s profile was very different from persons who conducted at public concerts or produced and recorded music. The Authority properly had regard to the manner in which the applicant had conducted himself historically and, in my view, did so in undertaking its predictive task of ascertaining whether, objectively, it was likely that he would, in fact, face a well-founded fear of persecution in the future. Contrary to the applicant’s submissions, I consider that the Authority did ask itself how he was likely to conduct himself in the future and whether that would conflict with his identify as a musician and dancer.[59]
[59]Cf ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716, [27]-[35] (Rangiah J).
As in Appellant S395, the gravamen of the dispute in the present case is about how the Reasons should be properly understood. In my opinion, the Authority did not impose a requirement that the applicant must exercise discretion so as to avoid a risk of persecution. To the contrary, the Reasons make plain that the Authority was concerned to explore and determine how the applicant was likely to conduct himself in the practice of his music and dance if he returned to Iran. To have analysed the matter in that way was entirely consistent with authority and did not entail jurisdictional error.
For those reasons, Ground 1 is rejected.
Ground 2 – complementary protection
Ground 2 of the further amended application reads:
In finding, pursuant to s 36(2)(aa) of the Act, that the Applicant would not face a real risk of significant harm in connection with his music and dance activities or his tattoos, the Authority found that the Applicant would continue to act discreetly to avoid harm on these bases, as he had in the past. However, it failed to consider whether the Applicant had acted discreetly in the past in order to avoid harm; accordingly, it failed to apply appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 to its consideration of the complementary protection criteria.
As concerns Ground 2, the substantive basis for this ground of review was that the Authority “had failed to apply Appellant S395” in its consideration of the complementary protection criteria.
Applicable principles
Section 36(2)(aa) provides that a criterion for a Protection visa is that the applicant is a noncitizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Section 36(2A) provides that a noncitizen will suffer significant harm if the person will be arbitrarily deprived of his or her life, or the death penalty will be carried out on that person, or that person will be subjected to torture, or subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment. The majority of those terms are defined in s 5(1) of the Act.
Section 36(2B) identifies circumstances where there is taken not to be a real risk that a person will suffer significant harm.
Satisfaction of the definition of ‘refugee’ for the purposes of meeting the criterion for a Protection visa under s 36(2)(a) of the Act require that the applicant is outside of Australia, and owing to a well-founded fear of persecution is unable or unwilling to return to their country of nationality. However, complementary protection depends upon a different criterion; namely, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the noncitizen will suffer significant harm. Self-evidently, satisfaction of the criterion for complementary protection under s 36(2)(aa) requires satisfaction that the suffering of significant harm is a necessary and foreseeable consequence of the person’s removal. This has been described as a test which presents a high standard.[60]
[60] See, eg, Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497, [62]
Resolution
The Authority correctly identified the criterion for complementary protection and the meaning of a real risk of significant harm as supplied by s 36(2A) of the Act. Annexed to the Reasons was an extract of the provisions of the Act as relevant to complementary protection.
The Authority recorded its finding that there was not a real chance the applicant would suffer serious harm and correctly recognised that for the purposes of the Act ‘real risk’ involved the same standard as a ‘real chance’: [61].[61] For present purposes, it is sufficient to note that the Authority was not satisfied that the applicant was entitled to complementary protection by reason of his interest in music and dance: [59]. In its analysis of this issue, it stated at [63]-[64]:
Turning to the applicant’s interest in music and dance, I have found above that the applicant is of no ongoing interest in relation to his past arrests and the raid on his dance studio and am not satisfied there is a real risk of him suffering harm in relation to those events.
I have found above that the applicant can avoid a real chance of persecution in relation to his music and dance interests by modifying his behaviour under s.5J(3). That section does not apply to the complementary protection criterion in s.36(2)(aa). Considering as a matter of fact what the applicant will do on return to Iran, I find that he will conduct his activities underground and with discretion, as he has done in the past and as other Iranian musicians and artists do. On the country information I have set out above regarding lower Basij activity, the frequency at which Western music is publicly played in Iran despite the restrictions, and at least some relaxation of restrictions, I find that there is not a real risk that the applicant will suffer harm in connection with his music or dance activities. I am not satisfied that the inability to more publically express his music and dance involves the level of pain, suffering or extreme humiliation such as to amount to torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or that it involves other forms of significant harm. Nor, given his broader work experience, am I satisfied there is a real risk it will lead to any sort of limitation on his ability to earn a living, such as would amount to significant harm.
[61] Citing Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.
The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, there was a real risk that he would suffer significant harm: [70]. In my view, the Reasons sufficiently indicate that the Authority considered in factual terms and by reference to the applicable provisions of the Act whether, if returned to Iran, there was a real risk of the applicant suffering significant harm.
In amplification of Ground 2, the applicant’s written submission was that the applicant’s past cautiousness in relation to music and dance activities and his tattoos was prompted by a fear of harm from the authorities. It was submitted that the Authority had “failed to consider why the Applicant had behaved discreetly in the past. In this way, it failed to apply the reasoning in S395 to its consideration of the complementary protection criteria, thereby falling into jurisdictional error.” In oral submissions it was said that, just as the threat of significant harm enlivened protection obligations under s 36(2)(a), so too, “the fact that a person might be capable of taking measures to avoid those harms materialising is irrelevant for the purposes of the complementary protection criterion in the same way as – in relation to 36(2)(aa).” Little more was said and nothing further was said in reply. Instead, the submission was pitched at a level of generality.
So understood, the applicant’s attack on the Authority’s decision respecting complementary protection was confined to whether “Appellant S395 principles” should have been applied. Before turning to that issue, it will be recalled that in SZATV v Minister for Immigration and Citizenship,[62] Kirby J had identified the Tribunal’s error in in Appellant S395, as being a failure “to consider how the applicants in that case would in fact act and whether such conduct would involve a real chance of persecution on one or more of the Refugees Convention grounds.” To apply that test to the Reasons at [64] as set out above, it is readily apparent that the Authority expressly considered what “as a matter of fact” the applicant would do on return to Iran.
[62] (2007) 233 CLR 18, [85] and see [86-[89].
Counsel for the Minister submitted that the reasoning in Appellant S395 was specific to the refugee criterion under s 36(2)(a) and did not apply to the complementary protection criterion, as such reasoning directly related to the specific protected attributes under the Refugee Convention.
In DQU16 v Minister for Home Affairs,[63] Rangiah J, who considered an application for leave to appeal out of time, addressed a proposed ground of appeal that the Authority ought to have applied the principles in Appellant S395 to the applicant’s claim for complementary protection under s 36(2)(aa) of the Act. His Honour stated:[64]
The question of whether the principles from S395 have any application to complementary protection has not been decided by this Court. In Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106, the appellant argued that the principles in S395 apply to a claim for complementary protection, but the Full Court held that the issue did not arise for determination given its factual findings. In Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111, the Minister argued that it was wrong for the Federal Circuit Court to have assumed that the reasoning in S395 applied to s 36(2)(aa), but the Full Court did not find it necessary to decide the issue. In BPX17 v Minister for Immigration and Border Protection [2018] FCA 763, Barker J also found it unnecessary to decide whether the Federal Circuit Court erred by concluding that S395 did not apply in relation to complementary protection.
In allowing leave to appeal solely on this ground, his Honour considered the point to be arguable, noting that the contrary had not been contended on behalf of the Minister.[65] However, it does not appear that this appeal has been decided and his Honour’s statements above do not seem to have been the subject of further consideration by another court.
[63] [2018] FCA 1695.
[64] [2018] FCA 1695, [33].
[65] [2018] FCA 1695, [34].
The parties agreed that the position was not settled and that there was no decision which held, as the applicant sought, that the Authority was required to “apply Appellant S395 principles” to the determination of whether he met the criterion for complementary protection prescribed by s 36(2)(aa) of the Act. However, beyond this, very little was said. For the applicant, it was submitted to be “the better view” that Appellant S395 principles applied to s 36(2)(aa). Contrastingly, the Minister pointed to a number of authorities which were said to confirm that it had been consistently submitted that Appellant S395 principles did not apply. While those decisions confirmed that the Minister had made a like submission in other cases, they contained no discussion of the issue. The Minister’s submissions have not yet been accepted.
The parties’ submissions were somewhat less than helpful. I was not informed as to why the applicant’s position represented the ‘better view’. Nor was I assisted in any consideration or application of principles of statutory construction as to why the text of s 36(2)(aa), other provisions of the Act or the context in which the criterion of complementary protection fell to be satisfied would inform resolution of the matter. Nor, at a more practical level, were any submissions made to illuminate how an administrative decision-maker should be held to have committed error, or error that should be characterised as jurisdictional in nature, in circumstances where the applicable principles remained uncertain. Contextually, when the Parliament inserted s 5J(3) in the Act, it appears that no corresponding changes to complementary protection were made. This may contraindicate acceptance of the applicant’s submission.
My disquiet at being asked to address this issue in the absence of any properly considered submissions is reinforced in circumstances where the acceptance of a submission that Appellant S395 principles were inapplicable to s 36(2)(aa) has been described by others with some passing familiarity with the subject as one “which, if correct, would circumscribe in a substantial way the scope and operation of the complementary protection provisions of the [Act]”: see Minister for Immigration and Border Protection v MZAIV.[66] There, Mortimer J described the position in the following terms:
The Minister’s contention about the inapplicability of S395 principles to the complementary protection regime under the Migration Act involved complex arguments of statutory construction, as well as consideration of the purpose of such provisions. It is a contention of considerable breadth, and could affect decision making at both a merits and judicial review level in many cases. The submission had many layers, and I have not addressed them . . .
Although I cannot discern the precise basis on which the application for special leave to appeal was made, I note that special leave to appeal her Honour’s decision in MZAIV was refused.[67]
[66] [2016] FCA 251, [43]-[44] (Mortimer J).
[67] [2016] HCASL 193 (Bell and Keane JJ).
Appellant S395 contains no consideration of s 36(2)(aa) or of complementary protection. It will be recalled that in SZSCA, Gageler J observed that Appellant S395 was concerned with the third element of the definition of ‘refugee’; namely, that the fear of persecution for a Convention reason must be “well-founded”.[68] Considered from that perspective, the principles under consideration in Appellant S395 were not concerned with whether the criterion for complementary protection was met; namely, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of removal, a noncitizen would suffer significant harm. In SZSCA, Gageler J also considered that Appellant S395 should not be extended beyond its rationale.[69] The rationale for those principles is that the concealment of, relevantly, one’s membership of a particular social group as the price of avoiding persecution involves surrender of the very protection which is intended to be afforded by the Refugees Convention.
[68] (2014) 254 CLR 317, [35].
[69] (2014) 254 CLR 317, [37].
In my view, to confine the principles stated in Appellant S395 to the question posed by s 36(2)(a) whether a person held a well-founded fear of persecution for a Convention reason – and not to extend them to the quite different considerations raised in relation to complementary protection and as confined by s 36(2)(aa) – would be at least consistent with the observations of Gageler J in SZSCA that Appellant S395 should not be extended beyond its rationale. How the rationale for those principles might overlap with considerations raised by s 36(2)(aa) was not the subject of any submissions before me.
As noted above, s 36(2A) identifies the circumstances in which a person will suffer significant harm while s 36(2B) identifies circumstances where there is taken not to be a real risk that a person will suffer significant harm. In contrast with s 5J(3), s 36(2B) does not expressly provide that a person would be taken not to face a real risk of significant harm if they could take reasonable steps to modify their behaviour in a way that would not conflict with a characteristic that was fundamental to their conscience or identity or by concealing an innate or immutable characteristic of their person.
On ordinary principles of construction a court should be reluctant to read words into the statute where it is unnecessary to do so.[70] In particular, where s 36(2)(aa) – and with it, ss 36(2A) and 36(2B) – are invoked, reading text into those provisions of the kind found in par 5J(3)(a)-(b) would appear to be a large step. While the Amending Act effected substantial amendments to the Act by the inclusion, relevantly,[71] of ss 5H, 5J, 5L and 5M, it did not amend the complementary protection criterion under s 36(2)(aa) of the Act.[72] With such considerations in mind, I prefer the conclusion that the holding in Appellant S395 should be confined to the determination of refugee status within the scope of the principles that are applied to s 36(2)(a) of the Act.
[70]See eg, Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd , [2006] VSCA 6, [5] (Chernov JA, Nettle JA agreeing); citing, Thompson v Goold & Co [1910] AC 409, 420 (Lord Mersey), Director-General of Education v Suttling (1987) 162 CLR 427, 433 (Wilson and Dawson, JJ, Mason, A.C.J. agreeing); see also Pearce & Geddes Statutory Interpretation in Australia, 8th Ed (2014) [2.32], [2.33].
[71] EM, cl 1164.
[72]See Amending Act, Sch 2, Items 5-9; see also BCH17 v Minister for Immigration and Border Protection [2018] FCA 300, [47].
While I have reflected on the issue at some length, given the paucity of submissions in relation to Ground 2, the applicant has not persuaded me of the wide proposition that “Appellant S395 principles” are to be applied in the determination of whether the criterion for complementary protection prescribed s 36(2)(aa) of the Act are satisfied.
Ground 2 is rejected.
Ground 3 – failure to consider claim (Christianity)
Ground 3 of the further amended application reads:
The Authority failed to consider the Applicant’s claim to face a real chance or risk of serious or significant harm arising from his involvement with Christianity.
Particulars
a.The Authority accepted that the Applicant had a genuine and sustained interest in exploring the Christian faith. However, it determined, in effect, that he would not face a real chance or risk of serious or significant harm on this basis because he was not likely to practice Christianity or identify as a Christian in Iran.
b.On the basis of its findings and the Applicant’s evidence, it fell to the Authority to consider whether the applicant was likely to continue to investigate and associate with Christianity on his return to Iran, and whether this would give rise to a real chance or risk of serious or significant harm. By failing to do so, the Authority fell into jurisdictional error.
The applicant submitted that the Authority erred by failing to consider whether he may face a real chance or risk of serious or significant harm by virtue of his active involvement with Christianity.
Applicable principles
The applicable principles were not in dispute. It is clear that the Authority was obliged to consider each articulated claim and each claim that clearly arose from the review material before it.[73] Where this does not occur, a failure to respond to a substantial, clearly articulated argument relying upon established facts may be characterised as a constructive failure to exercise jurisdiction; alternatively, it may be relied upon as evidencing a denial of procedural fairness.[74] Such a failure may be discerned where the decision-maker’s reasons display neither a consciousness or consideration of central aspects of the claim.[75]
[73]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [60] (Black CJ, French and Selway JJ).
[74]NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [55] (Black CJ, French and Selway JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, [24] (Gummow and Callinan JJ, Hayne J agreeing).
[75]Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [38]-[40], [62] (Kenny, Griffiths and Mortimer JJ).
Those principles apply both in respect of a claim that has been made expressly and to one which, though not expressly made, was clearly raised by the evidence. In Htun v Minister for Immigration and Multicultural Affairs,[76] Allsop J explained that a failure to review a decision without having considered all of the claims made constituted a failure to complete the exercise of jurisdiction embarked upon. This statement was later endorsed by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2).[77]
[76] (2001) 233 FCR 136, [42] (Spender J agreeing)
[77] (2004) 144 FCR 1, [57].
By extension, an administrative decision-maker is not required to consider a claim that is not expressly made or which does not arise clearly on the material before it.[78] For those reasons, a practical and common sense approach requires that an unarticulated claim must arise tolerably clearly from the material before a decision-maker can be required to consider it.[79] These principles were affirmed in BOZ16 v Minister for Immigration and Border Protection.[80]
[78] NABE, supra (2004) 144 FCR 1, [61].
[79] Htun (2001) 233 FCR 136, [15].
[80] [2018] FCA 418, [9]-[13] (Allsop CJ).
Resolution
The gravamen of Ground 3 was that, having found that the applicant was unlikely to practice Christianity or identify as Christian in Iran, the Authority was also required to consider whether he was likely to continue to investigate and associate with Christianity in Iran.
The Authority detailed the nature of the applicant’s claims in relation to religion in some detail: [3]. It addressed the subject from [7]-[20], [62]. The Authority identified the nature of the applicant’s fear of harm at [7] and then addressed the following issues: (a) Zoroastrianism: [8]; (b) Christianity: [9]-18], and; (c) a lack of belief in Islam: [19].
The Authority accepted that the applicant had a genuine interest in, and an appreciation of Christianity, including that he enjoyed Christian prayer and ritual, aspects of the gospels, and being involved with other Christians. It accepted that he had been baptised, attended church on many occasions and, since being in Australia, attended about 20 classes on Christianity. The Authority also accepted that the applicant’s interest in Christianity predated his arrival in Australia and that he had not manufactured an interest so as to assist his SHEV application.[81]
[81] Cf Act, s 5J(6).
The applicant submitted that having made those findings, it was incumbent on the Authority to consider whether the applicant would likely continue to pursue his interest in Christianity in Iran, and whether this would expose him to a real chance or risk of harm.
For the reasons that follow, it is necessary to identify more carefully the precise nature of the applicant’s claim. That is because the applicant submitted that he “had been consistent and forthright about the nuanced, unfolding nature of his involvement with Christianity including, for example, by distinguishing between his enthusiasm for the Christian faith and his ambivalence about organised religion.” The Minister submitted it to be clear from the applicant’s evidence and submissions that his claim to fear of harm was stated in terms of his conversion to Christianity as distinct from an ongoing exploration of Christianity.
Having regard to those competing submissions again, it is important to approach Ground 3 so that the Authority’s decision is considered in light of the basis on which the application had been made (and not on some entirely different basis).
In the record of his Irregular Maritime Entry Interview it was stated that the applicant was not a member of any particular religious group. The applicant did not identify religion as a reason why he feared harm if he was to return to Iran.
In his statement that accompanied his SHEV application, the applicant addressed three topics in relation to religion under these headings:
a)Belief system exploration: [6]-[8]. The applicant stated that though born into a Muslim family and raised as a Muslim, his family had never been religious (although his father, who did not believe in Islam, believed in Zoroastrianism). He stated that his family never attended the mosque and that from 2010 he had “totally hated Islam”. Instead, the applicant had explored Zoroastrianism and other religions. In this context he further stated that it had not been until his arrival in Australia that he converted to Christianity;
b)Exploration of Christianity in Iran: [30]-[33]. The applicant described developing a curiosity in other belief systems, including Christianity and that he had attended some classes after which he noticed that he was being followed by two persons. He further claimed that his retail shop had been closed and that the Basij had followed him from his shop to Christianity classes;
c)Since coming to Australia: [34]-[38], [46]. The applicant stated that he did not change his religion while he was in Iran, but that during his sea voyage to Australia he had recalled the parable of Jesus walking on the water. He stated that upon his safe arrival in Australia he developed a belief in the Christian faith and decided to read the Bible and be baptised. To that end he attended Sunday classes at church and was baptised whilst in detention. He stated:
I still attend Christianity services whilst detained, but have struggled with my religion as a result of my long-term detention and questioning my commitment to this faith. . . .
I struggle with the concept of a Church and organised religion, but I do believe in God.
Section 1 of his submissions to the delegate of August 2016 addressed the topic Conversion to Christianity. The submissions stated that the applicant feared harm on the grounds of his having “converted to Christianity”, and that he would suffer harm due to that conversion and his practice of religion or his inability to practice his religion. He provided country information respecting the difficulties in Iran of persons who had converted to Christianity.
As noted above, an affidavit was filed exhibiting transcripts of the applicant’s arrival and SHEV interviews. Counsel for the applicant submitted that the transcripts presented a ‘nuanced picture’ of his client’s Christianity. My attention was drawn to particular passages of those transcripts, each of which I have considered. During his arrival interview, the applicant was insistent that he did not now identify as a Shia and that “I don’t believe in anything”. He also stated “I don’t believe in any religion”, but also maintained that he believed in God.
During his SHEV interview, the applicant said that both of his parents and he believed in Zoroastrianism but that he had never researched this religion. By contrast he said he had researched Judaism, Christianity and Baháí faiths. The applicant referred to his entry interview, stating that “I don’t believe in religion as such I just believe in God. It was interesting to find out more about it.” In response to a further query he confirmed he did not believe in religion. The applicant described how his thoughts changed since arriving in Australia and that he had “attended a couple of sessions about Christianity”. Asked to clarify the distinction between his belief in God and a nonbelief in religion, the applicant described ‘religion’ as constituting “the old set of laws” and stated that he had been baptised and identified as Christian although he did not “have enough information about it”. He attributed his decision to be baptised to his belief that Jesus had made his sea passage to Australia “safe and sound”. The applicant gave evidence of attending Christianity classes while in Iran (being two classes lasting 90 minutes) and while in detention in Australia.
Later, when asked to clarify the reason for his decision to be baptised, the applicant described enjoying the dancing and singing and prayers. When pressed to describe his commitment to Christianity, the applicant stated “I didn’t say that I was going to change my religion or question my faith 100%. As I mentioned when change from Islam . . . it is also possible that in the future I may change again.” The applicant also described that his beliefs had weakened with ongoing detention and that he no longer read the Bible. He also gave evidence that to be recognised as a Christian he would have to attend church.
Insofar as a nuanced claim was made, I accept the Minister’s submission that the applicant had not given evidence at his entry or SHEV interviews that he would continue to study Christianity if he returned Iran.
The delegate addressed in detail the applicant’s claim to fear harm on the grounds of religion: [70]-[119]. The delegate considered that the applicant’s exploration had been motivated by an element of curiosity but was not satisfied he had developed a genuine Christian faith.
In the submissions made to the Authority dated 14 September 2016, his agent contended that the applicant had given credible information respecting his belief in Christianity.
The Authority noted inconsistencies in relation to the applicant’s accounts of his encounters with Christianity while in Iran and did not accept that he had attended such classes or been followed or, as he seemed to imply, that his shop had been closed for this reason: [10]-[13]. The Authority accepted that the applicant had been baptised and attended 20 religious classes but noted he had not furthered his knowledge, including by reading the Bible or attending church (or making enquiries as to church locations), since leaving detention: [14]-[15].
The Authority noted that the applicant was questioning his apparent faith and, without criticising his evidence on the basis of vagueness or lack of detail, considered that the key issue was that the applicant’s own actions did not display a genuine commitment to practising Christianity. While satisfied that the applicant’s activities in Australia respecting Christianity were other than for the purposes of strengthening his claims, the Authority did not accept he held a true belief in all commitment to Christianity and found that he had not genuinely converted. In those circumstances the Authority did not accept that the applicant would attend church in Iran or otherwise identify as a Christian or engage in any practice of Christianity and, for those reasons was not satisfied he faced a real chance of being perceived as a Christian or suffering harm for that reason: [17].
Despite the submission that the applicant’s evidence gave rise to a likelihood that he would continue to explore, investigate and associate himself with Christianity on his return to Iran, and that this in turn gave rise to a real chance or risk of harm, I am not satisfied that any such claim was expressly made or arose squarely on the materials before it.
Adopting a practical and common sense approach to the consideration of the matter, I am not satisfied that it was tolerably clear from the material before it that the applicant was advancing a nuanced claim that he was likely to continue to investigate and associate with Christianity on his return to Iran and that there was, as a result, a real chance he would be persecuted and suffer serious harm or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there was a real risk he would suffer significant harm. It follows that I do not consider the Authority was required to consider the nuanced form of claim as was being suggested. I also consider that the Reasons confirm the Authority was fully conscious of and gave active consideration to the central aspects of this claim. And I do not accept that the Authority misunderstood or mischaracterised the claim that had been made in relation to religion, including his tattoos.[82]
[82] SSTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452.
It follows that I do not accept there was error constituted by any failure by the Authority to consider the applicant’s religion based claim on the nuanced basis that was now suggested. I am satisfied that the Authority paid proper attention to the claim that had been made and that its Reasons in relation to this aspect of the matter provided more than a proportionate response to the material that had been placed before it.
Ground 3 is rejected.
Conclusion
The application should be dismissed.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 4 February 2020
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