ADZ16 v Minister for Immigration
[2016] FCCA 3246
•15 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADZ16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3246 |
| Catchwords: MIGRATION – Refugee Review Tribunal – extension of time application – merit in substantive grounds – extension of time granted – Tribunal considering what applicant should do upon his return to Iran – Tribunal failing to consider what applicant would do upon his return to Iran – jurisdictional error established. |
| Legislation: Migration Act 1958, ss.91R(1), 477(1), 477(2) |
| Cases cited: Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6 MZAIV v Minister for Immigration & Anor [2015] FCCA 2782 SZSWB v Minister for Immigration and Border Protection [2014] FCCA 765 |
| Applicant: | ADZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 137 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 19 October 2016 |
| Date of last submission: | 19 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2016 |
REPRESENTATION
| Counsel for the applicant: | Alexander Solomon-Bridge |
| Solicitors for the applicant: | Victoria Immigration Lawyers |
| Counsel for the first respondent: | Liam Brown |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.
The decision of the Refugee Review Tribunal handed down on 25 March 2015 in matter number 1405951 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 137 of 2016
| ADZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
In this matter, the applicant applied for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal. In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
A registrar listed the matter for the hearing of the extension of time application and, if granted, the substantive application, on 19 October 2016. On that date, the Minister did not oppose the extension of time being granted. An order was made on 19 October 2016 granting the extension of time, with reasons to be provided later. The reasons that follow are for the extension of time, and for the decision on the substantive application.
Extension of time application
The Tribunal’s decision was made on 25 March 2015. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 25 January 2016. Consequently, the application was about nine months late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)the prejudice to the parties of the grant or refusal of an extension of time;
d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and
e)the merits of the substantive application.
As stated, the delay was about nine months. The applicant’s solicitor said in an affidavit sworn or affirmed on 25 January 2016 that:
a)the applicant is an asylum seeker;
b)he attempted to have the grounds of appeal assessed by JusticeNet on 1 April 2015, shortly after the date of the Tribunal’s decision;
c)JusticeNet referred the matter to a lawyer for an assessment of the grounds of appeal;
d)JusticeNet did not advise the applicant as to the grounds of appeal until 9 December 2015;
e)on that date, JusticeNet wrote to the applicant advising him that the lawyer considering the application was unable to find any error in the Tribunal’s decision;
f)the application for judicial review was already out of time;
g)the applicant contacted Victoria Immigration Lawyers immediately after receiving the letter of advice from JusticeNet on 9 December 2015 in order to obtain advice on filing a judicial review application;
h)Victoria Immigration Lawyers referred the matter to a barrister for advice; and
i)Victoria Immigration Lawyers filed this application on behalf of the applicant based on the advice provided by a barrister.
That explanation is understandable but not adequate, in view of the length of the delay. The respondents did not point to any prejudice from the grant of an extension of time. There would be substantial prejudice to the applicant if an extension were not granted. There is obviously a public interest in matters such as this being brought before the court more quickly than occurred in this case. As the following discussion shows, the substantive application has some merit.
Balancing all of these matters, I considered that it was appropriate to grant an extension of time in this case.
The applicant’s claims
The applicant is a citizen of Iran. The applicant claimed that:
a)he had to do longer than usual military service because he had participated in the Green Movement and he was interrogated;
b)he drank alcohol frequently;
c)he had problems with the authorities in relation to alcohol on two occasions, one in 2009 and the other in 2012;
d)in 2009, he was charged for drinking alcohol, convicted and released on bail;
e)in 2010, his brother was taken away for interrogation;
f)in 2010, his cousin was captured and beaten by the police;
g)in 2012, he went to a party where alcohol was served;
h)on his way home, he was stopped by the Basij who accused him drinking alcohol and behaving inappropriately on the anniversary of the Imam’s death;
i)he was beaten and slapped in the face but managed to run away;
j)his work partner telephoned him and asked why the police were at his house and why they had detained him for questioning;
k)there is a law in Iran that anyone caught drinking alcohol for a third time will be executed; and
l)he was not sure he would be able to help himself by not drinking alcohol if he returned to Iran.
The Tribunal’s reasons for decision
The Tribunal did not accept that the applicant was a credible witness, for reasons which it gave. More particularly, the Tribunal did not accept that the applicant was charged and convicted for consuming alcohol on 2009. The Tribunal did not accept that the applicant was detected as being under the influence of alcohol in 2012 but then escaped. The Tribunal also said in its reasons for decision:
50.The applicant said that alcohol is viewed as haram under Islam, and that the law is religiously based. I asked the applicant if he thought he could avoid the harm he had described by not drinking alcohol. I asked if there was anything about the applicant that made it unreasonable to expect him to abide by this Iranian law of general application. The applicant emphasised the wide availability of alcohol in Iran, and said there was no particular reason why he should not comply with the law.
…
52.Ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution whether or not a particular law is repugnant to the values of our society. Furthermore, it has been accepted that the mere fact that a law of general application may reflect some religious value does not necessarily mean it is persecutory within the meaning of the convention: MIMA v Darboy.[1]
53.I note that in response to my question, the applicant stated that there is no particular reason why he should not comply with the general law applicable to all Iranians that alcohol is not to be consumed.
54.I accept that the Iranian penal code prohibits the consumption of alcohol, and accept that in recidivist cases it provides for the death penalty. However, I consider that the law against alcohol in Iran is a law of general application, and based on the applicant’s evidence to me that there is no particular reason why he should not comply with that law, I am not satisfied that observance of the law impacts more harshly on him for any particular reason, or that it will be selectively or discriminatorily enforced against him for any particular reason.
55.For the purposes of the Refugees Convention, I do not accept that should the applicant face punishment in connection with the application of the law against alcohol that the essential and significant reason for the harm is religion, and nor do I accept that any such harm would involve relevantly discriminatory conduct: section 91R(1)(a) and (b) of the Act. I find that any harm feared by the applicant in connection with the application of Iran’s laws against consumption of alcohol does not satisfy section 91R of the Act.
56.Also, in circumstances where the applicant need only observe Iran’s laws against the consumption of alcohol, and as I do not accept there is any impediment or discrimination in him doing so, I do not consider that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm in connection with punishment for the consumption of alcohol. To avoid doubt, noting that the applicant relies on the provision of Iranian law for the application of the death penalty for recidivist alcohol consumption, I do not accept the applicant’s evidence that he has twice been detected consuming alcohol.
…
59.In response, the applicant recounted his example of facing lashings if caught eating in public during Ramadan, and expressed his concerns about being able to trust himself not to drink alcohol. The applicant clarified that he did not fear harm on account of not involving himself in religious practices, but emphasised his concern arising out of the harassment his family was facing.
[1] (1998) 52 ALD 44
Ground of the application
The one ground of the application filed on 25 January 2016 and amended on 19 September 2016 is:
The Second Respondent committed jurisdictional error by identifying a wrong issue or asking a wrong question.
Particulars
(a)The Second Respondent identified the prohibition against alcohol in Iran as a law of general application, yet failed to ask the necessary further questions, viz. whether it resulted in discriminatory treatment and whether the law was appropriate and adapted to a legitimate national objective.
(b)The Second Respondent erroneously assessed the Applicant’s application on the basis that the Applicant was expected to change his drinking behaviour so as to comply with the law prohibiting consumption of alcohol.
Consideration
The Minister noted that the Tribunal’s reasons for decision applied s.91R(1) of the Act, which was then in force. Subsection 91R(1) of the Act provided that:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
The Minister noted particularly that in paragraphs 54 and 55 of the Tribunal’s reasons for decision it said:
54.… However, I consider that the law against alcohol in Iran is a law of general application, and based on the applicant’s evidence to me that there is no particular reason why he should not comply with that law, I am not satisfied that observance of the law impacts more harshly on him for any particular reason, or that it will be selectively or discriminatorily enforced against him for any particular reason. (emphasis added)
55.For the purposes of the Refugees Convention, I do not accept that should the applicant face punishment in connection with the application of the law against alcohol that the essential and significant reason for the harm is religion, and nor do I accept that any such harm would involve relevantly discriminatory conduct: section 91R(1)(a) and (b) of the Act. I find that any harm feared by the applicant in connection with the application of Iran’s laws against consumption of alcohol does not satisfy section 91R of the Act.
The Minister said that the reference in paragraph 55 of the Tribunal’s reasons for decision to s.91R(1)(b) of the Act was clearly a typographical error and was intended to be a reference to s.91R(1)(c) of the Act. I accept that contention.
The applicant argued that the Tribunal’s use of the word “observance” in paragraph 54 of its reasons for decision was indicative of error, because it revealed that the Tribunal was considering what the applicant should do if he returned to Iran rather than what he would do, contrary to the High Court’s decision in Applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71. Gummow and Hayne JJ, at paragraph 82 of that decision, said:
Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. … No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
The Minister said that the Tribunal’s use of the word “observance” in paragraph 54 of its reasons for decision was neither here nor there. The Minister submitted that “observance” was merely the reflex of “contravention”, and the court should not read the Tribunal’s reasons for decision with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6.
I do not accept the Minister’s submission on this point. Reading the Tribunal’s reasons for decision fairly and as a whole, it seems to me that the Tribunal meant what it said, namely:
based on the applicant’s evidence to me that there is no particular reason why he should not comply with that law, I am not satisfied that observance of the law impacts more harshly on him for any particular reason, or that it will be selectively or discriminatorily enforced against him for any particular reason. (emphasis added)
That is, the Tribunal said and meant that, because the applicant told the Tribunal at one point in the hearing that there was no particular reason that he should not observe the prohibition on the consumption of alcohol in Iran, the Tribunal was not satisfied that observing that law would impact more harshly on the applicant for any particular reason or would be selectively or discriminatorily enforced against him for any particular reason.
Clearly, in forming this view, the Tribunal was considering what the applicant should do, rather than what he would do, if he were to return to Iran. Indeed, at no point in the Tribunal’s reasons for decision did it actually make findings about what the applicant would do in relation to the consumption of alcohol if he were to return to Iran.
In the context of this case, it does not appear to me to be possible to infer that the Tribunal found that the applicant would not consume alcohol if he were to return to Iran. That is because the Tribunal particularly noted at paragraph 59 of its reasons for decision that the applicant had expressed concerns at the Tribunal hearing about being able to trust himself not to drink alcohol. The Tribunal simply did not engage with that aspect the applicant’s evidence. That evidence suggested that the applicant maybe an alcoholic or otherwise be unable to refrain from the consumption of alcohol notwithstanding the consequences for him at the hands of the Iranian authorities.
The gravamen of the Tribunal’s reasons for decision on this point was that, because there was no particular reason the applicant should not comply with the law, he would not face persecution within the meaning of s.91R of the Act. However, as a matter of common knowledge, in relation to the consumption of alcohol, people do many things without a particular reason and contrary to common sense. It was incumbent on the Tribunal to find whether the applicant would or would not consume alcohol if he returned to Iran.
I consider that the Tribunal fell into jurisdictional error for the reason identified.
The applicant also argued that the Tribunal made a jurisdictional error by failing to ask the questions whether the law of general application banning the consumption of alcohol in Iran:
a)resulted in discriminatory treatment; and
b)was appropriate and adapted to a legitimate national objective.
In this context, the High Court said in Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 at 402; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25:
The criteria for the determination of whether a law of policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”. (footnote omitted)…
… Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of those laws is not persecutory.
The Minister relied on the High Court’s decision in Minister for Immigration and Border Protection v WZAPN & Anor (2015) 254 CLR 610; (2015) 146 ALD 480; (2015) 320 ALR 467; (2015) 89 ALJR 639; [2015] HCA 22 at [77], where the plurality said:
The passage cited from Applicant S makes it clear that an inquiry into whether a law or policy is “appropriate” to some legitimate object of the country concerned is relevant only once it is concluded that the law or policy results in discriminatory treatment for a reason specified by the Convention. The IMR had not reached that conclusion. Indeed, he had concluded to the contrary. Accordingly, the IMR’s reference to Applicant S did not warrant an attribution to the IMR of an error in deciding the case on the basis of the determination of a relevant issue of which the claimant had no notice.
In the present case, the Tribunal did not find that the relevant law of general application would result in discriminatory treatment of the applicant for a reason specified in the Convention. Consequently, the Tribunal did not need to consider whether the law of general application was appropriate and adapted to a legitimate national objective.
However, as discussed above, the Tribunal’s finding that the law of general application would not impact on the applicant in a discriminatory manner may have been predicated on a failure to ask the correct question, being what the applicant would do in relation to alcohol consumption if he were to return to Iran.
The applicant also argued that the Tribunal made an S395 jurisdictional error in relation to the complementary protection provisions. The Minister argued that S395 had no application to the complementary protection provisions.
There are two decisions of this court that are against the Minister’s position: MZAIV v Minister for Immigration & Anor [2015] FCCA 2782 and SZSWB v Minister for Immigration and Border Protection [2014] FCCA 765. However, they were both overturned on appeal on other grounds. The applicant said that, although the two cases were of no precedential value, the reasoning was sound. The Minister submitted that Convention protection and complementary protection were fundamentally different in a way that impacted on the application of S395 to complementary protection.
However, it is unnecessary to consider these arguments, in view of the conclusion reached above.
Conclusion
As jurisdictional error has been identified, and as no discretionary reasons were advanced for not remitting the matter, the matter will be remitted to the Tribunal with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 15 December 2016
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