ASW17 v Minister for Immigration
[2018] FCCA 1257
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASW17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1257 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran because of problems with the Basij – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Authority acted unreasonably or illogically or overlooked integers of the applicant’s claims considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.46A, 473CA, 473DA, 473DC, 473EA, 477 |
| Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 |
| Applicant: | ASW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 106 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Taylor |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr N Wood |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application as amended on 28 March 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 106 of 2017
| ASW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 November 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran who arrived in Australia at Christmas Island as an unauthorised maritime arrival on 20 December 2012.[1]
[1] Court Book (CB) 244
On 29 September 2015 the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (Migration Act), allowing the applicant to lodge an application for a protection visa.[2]
[2] CB 244
On 4 November 2015 the Minister’s Department (Department) wrote to the applicant advising that the s.46A bar had been lifted and inviting him to apply for a temporary protection visa or a safe haven enterprise visa.[3]
[3] CB 36-41
On 30 November 2015 the applicant lodged an application for a temporary protection visa.[4]
[4] CB 48-104, 105-111
On 16 May 2016, with assistance through the Primary Application and Information Service, the applicant lodged a further application for a temporary protection visa.[5]
[5] CB 140-197, 222-227
On 26 May 2016 the applicant withdrew his application for a temporary protection visa lodged on 30 November 2015.[6]
[6] CB 218-219
The applicant provided a statement with his application for a temporary protection visa.[7] He claimed that:
a)he left Iran because of problems with the Basij and the Iranian government for alcohol use, and for being perceived as an apostate and for having a girlfriend;[8]
b)in 2010, he was imprisoned for six months for drinking alcohol on a holy day and received 20 lashes with clothing on and 80 lashes with only underwear;[9]
c)in February 2012, he was again taken into custody for drinking alcohol and was given 80 lashes. He was held in custody for one week;[10]
d)in October 2012, he went out with his girlfriend. He was stopped by the Basij[11] because of having a girlfriend. He had used a numbing spray because of sore gums but the Basij accused him of drinking alcohol and slapped him hard. After that, he went to a coffee shop and said negative things about the government. He did not realise the owner of the coffee shop was also Basij and was recording him;[12]
e)after the coffee shop, he went to his friend’s house and while there his mother called him and said people had come to the house looking for him and calling him an atheist and an infidel, and told her they had a video of him insulting the Ayatollah and the Islamic holy days;[13]
f)after this he got scared, hid at his cousin’s place and fled Iran;[14] and
g)after his arrival in Australia, he contracted a virus in his brain and required emergency medical treatment. His entry interview was shortly after this and he said he was confused about some matters including exact details and requested that the decision-maker take this into account when assessing his evidence.[15]
[7] CB 182-185
[8] CB 182 at [3]
[9] CB 183 at [14]
[10] CB 183 at [14]
[11] A pro-government paramilitary militia connected to the Islamic Revolutionary Guard Corps
[12] CB 183-184 at [15], [20]
[13] CB 183-184 at [16]
[14] CB 184 at [18]
[15] CB 182 at [2]
On 30 May 2016 the applicant attended an interview with the delegate in relation to his protection visa application.[16]
[16] CB 244
According to the delegate’s written decision,[17] at the temporary protection visa interview the applicant also claimed:
a)that he had been addicted to ice and had undergone a drug rehabilitation program;[18]
b)he would be stopped by the police at checkpoints while travelling with his girlfriend and told that he was not permitted to be with a girl in public without being in possession of a marriage certificate and that on these occasions he would also be in possession of alcohol or dressing inappropriately. He said he was fortunate to be able to bribe authorities on these occasions to get away;[19]
c)that he was kicked by the Basij in detention because of his tattoos;[20]
d)that he does not practice Islam;[21] and
e)that his brother’s friend works for the Etelaat[22] and has told his brother that there is an ongoing case against him.[23]
[17] CB 243-263
[18] CB 249 at [46]
[19] CB 249 at [56]
[20] CB 250 at [60]
[21] CB 250 at [64]
[22] The Ministry of Intelligence
[23] CB 252 at [72]
On 8 August 2016 the delegate made a decision not to grant the applicant a protection visa.[24] On the 12 August 2016,[25] the matter was referred to the Authority in accordance with s.473CA of the Migration Act.[26]
[24] CB 240-263
[25] CB 270
[26] CB 264-267
The delegate accepted:
a)that the applicant had previously been addicted to drugs, noting that he had mentioned this in his entry interview;[27]
b)that he had been addicted to alcohol in the past and is currently undertaking action to overcome his addiction to alcohol;[28]
c)that based on country information and consistency of the applicant’s evidence, including the explanation as to why he said in his entry interview he had been arrested and detained on three (not two) occasions, that he had been arrested and detained on two occasions for alcohol consumption in Iran;[29]
d)that based on country information, the applicant was subjected to periodic checks and reprimands for non-compliance with Islamic conduct and dress while in Iran;[30]
e)that he had been kicked by the Basij in detention because of his tattoos;[31]
f)that he does not practice Islam;[32] and
g)that he would have to return to Iran on a new travel document or a temporary travel document and would be considered a failed asylum seeker.[33]
[27] CB 249 at [47]-[48]
[28] CB 249 at [51]
[29] CB 249 at [55]
[30] CB 250 at [58]
[31] CB 250 at [63]
[32] CB 250 at [66]
[33] CB 250 at [68]
Relevantly for the purposes of this application, the delegate accepted that the applicant would have to modify his behaviour regarding his drinking of alcohol to lessen the chance of encountering serious harm, and considered that it is a reasonable step that the applicant would avoid drinking alcohol to avoid persecution, given his own evidence that he was trying to overcome this addiction.[34]
[34] CB 255-256 at [96], [98]
In relation to the applicant’s tattoos, the delegate found that he does not have an existing adverse profile with the Iranian authorities for this reason and that if he kept them covered he would not be at risk of serious harm.[35] In relation to non-compliance with Islamic prescribed conduct and dress, the delegate found that action against him for this reason will be considered to be the result of the general application of rules and law and not persecution.[36]
[35] CB 256 at [105]
[36] CB 257 at [109]
The delegate stated that the applicant did not make any claims of fearing harm on return to Iran because of his non-practice of Shia Islam. This is incorrect, as he clearly articulated this claim in his statement of claims. The delegate proceeded to make a finding that, based on country information, it seems that the chance of a person who has renounced their faith in Islam coming to the attention of the authorities simply because they do not practice is remote.[37]
[37] CB 258 at [117]
The delegate found that as the applicant’s claims were the same in relation to complementary protection as they were under the Refugees Convention, there is no real risk of significant harm for the same reasons as above.[38]
[38] CB 260 at [139]
On 12 August 2016 the Authority sent to the applicant an acknowledgement of the referral, along with information about the Authority and the Authority’s practice direction.[39]
[39] CB 270-281
On 6 September 2016, the applicant wrote to the Authority requesting additional time to provide a submission.[40] It replied on 7 September 2016 and stated that a decision would not be made until 21 September 2016.[41] The applicant provided a submission on 16 September 2016 in which he repeated claims already made and further stated:
a)that he was at the coffee shop with his friends, not his girlfriend, and that there must have been a mistake in the interpreting;
b)that he was allowed to leave the country because he was not banned or prohibited because he had not committed murder or did not have financial debts;
c)that he would be arrested and targeted because of his five year absence from Iran and reasons of his escape, the tattoos, because of the curses to religion and to the Ayatollah and many other things and that he will be punished by physical torture and abuse;
d)if he is caught drinking again he would be hung or sentenced to death and that alcohol is the only thing he can use to continue living or calm his pains; and
e)he left after two days and there must have been a mistake in the interpreting and that at the entry interview he was not in a very good state of mind.[42]
[40] CB 282
[41] CB 284
[42] CB 289-290
On 18 November 2016 the Authority affirmed the delegate’s decision.[43]
[43] CB 297-310
The Authority decision
The Authority found that the applicant did not have a well-founded fear of persecution in Iran. This decision was based in part on the following inconsistencies in the applicant’s evidence:
a)the applicant gave inconsistent accounts at his arrival interview and in his written claims for protection of his past arrests and harassment by the Basij for consumption of alcohol and mixing with the opposite sex;[44] and
b)the applicant referred in his visa application to an incident in 2012 where he was stopped by the Basij when with his girlfriend and slapped because the Basij mistook the smell of dental spray for alcohol. He then claimed to have gone to a coffee shop where he verbally abused the government and Islam, and the conversation was recorded. He also claimed to have been charged for this conduct and that officers came to his home looking for him. The Authority did not accept that any of these incidents occurred, due to internal inconsistencies in the applicant’s account, inconsistencies with country information, lack of detail in relation to potential charges and failure to raise this claim at the entry interview.[45]
[44] CB 299-300 at [8]-[11]
[45] CB 300-301 at [12]-[16]
The Authority accepted that the applicant may face adverse attention from the Basij for drinking alcohol and engaging in western behaviour upon return to Iran, but did not accept that this would amount to serious harm based on its review of country information.[46]
[46] CB 301-303 at [17]-[24]
The Authority did not accept that the applicant would face serious harm on the basis of being a non-practising Shia Muslim, based on country information and lack of past harm.[47]
[47] CB 303-304 at [25]-[27]
The Authority noted that the applicant left Iran legally using his own passport and considered country information and found that the applicant would be unlikely to face serious harm for seeking asylum in Australia or for his extended stay in a western country.[48]
[48] CB 304-305 at [28]-[33]
The Authority considered the applicant’s claims cumulatively and again was not satisfied that there was a real chance that the applicant would face serious harm if returned to Iran.[49]
[49] CB 304-305 at [33]
The Authority considered the complementary protection provisions and found that there was not a real risk of significant harm for the same reasons it found that there was not a real chance of serious harm.[50]
[50] CB 305 at [37]-[38]
The Authority did not accept that the incident which prompted the applicant to leave Iran, being his “verbal outburst” about the Iranian regime in a coffee shop, had occurred due to the inconsistencies of his evidence at the entry interview and the temporary protection visa interview.[51]
[51] CB 301 at [15]
The Authority accepted that the applicant engaged in occasional alcohol consumption while in Iran and may continue to do so upon return to Iran.[52] However, it did not accept that he had been arrested previously for consuming alcohol and, given the widespread availability of alcohol in Iran, found that he would not be seriously or significantly harmed if he was caught with alcohol.[53]
[52] CB 301 at [16]
[53] CB 302 at [19]
The Authority accepted that the applicant had previously come to the adverse attention of the authorities and held in custody on occasion because he had mixed with girls. However, the Authority found that if this were to happen again it would not amount to serious harm. The Authority found that he would not be at risk of harm if he were to come to the attention of the authorities because of his tattoos.[54]
[54] CB 303 at [24]
The Authority found that the applicant would not be at risk of harm for being a failed asylum seeker from a Western country.[55]
[55] CB 304 at [33]
The current proceedings
These proceedings began with a show cause application lodged in Perth on 20 February 2017 and filed two days later. That application was lodged outside the time prescribed by s.477(1) of the Migration Act and the applicant sought an extension of time under s.477(2) of that Act.
Procedural orders were made by a registrar in Perth on 28 April 2017 to facilitate the hearing of the matter. The applicant subsequently relocated to Melbourne. Nothing further was filed by the applicant pursuant to the registrar’s orders and he failed to attend the extension of time hearing on 23 August 2017 in Melbourne. I dismissed the application, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
By an Application in a Case filed on 8 December 2017, the applicant (subsequently represented by Legal Aid Victoria) sought reinstatement of the judicial review application. On 12 February 2018, I vacated my earlier orders, pursuant to rule 16.05(2) of the Federal Circuit Court Rules, and granted an extension of time under s.477(2) of the Migration Act. I also gave the applicant leave to file an amended application.
The applicant now relies upon his amended application filed on 28 March 2018. The grounds in that application are:
1. The Immigration Assessment Authority acted legally unreasonably or illogically in that it failed to give proper, genuine and realistic consideration to the applicant’s claim of feared persecution if he were to consume alcohol in Iran.
2.The Immigration Assessment Authority acted legally unreasonably or illogically by failing to consider obtaining information in relation to whether the applicant would face harm if he were to consume alcohol upon return to Iran.
3.The Immigration Assessment Authority constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant's claims, being that he is likely to use alcohol if returned to Iran, and that if authorities became aware of this, he would suffer serious consequences.
4.The Immigration Assessment Authority constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant's claim, being that he fears harm on the basis of his suspected apostasy, of which alcohol use is a factor. In so doing, the IAA failed to consider the nexus between alcohol use and the applicant's imputed political or religious opinions, and the resulting likelihood that he would be punished for consuming alcohol.
Both the applicant and the Minister filed pre-hearing written submissions and also made oral submissions through their counsel at the trial of the matter on 16 May 2018. I have been assisted by those submissions.
I have before me as evidence the court book filed on 1 May 2017 and the affidavit of Alexandra Jannetto made on 15 March 2018, to which is annexed a transcript of the interview between the applicant and the delegate on 30 May 2016.[56]
Consideration
Ground 1 - did the Authority act unreasonably or illogically in failing to give proper, genuine and realistic consideration to the applicant’s claim of feared persecution if he were to consume alcohol in Iran?
[56] The transcript incorrectly records the interview as taking place on 13 May 2016
Applicant’s contentions
By Ground 1 the applicant contends that the Authority’s decision was legally unreasonable because the Tribunal placed disproportionate weight on the availability of alcohol for purchase in Iran, rather than the consequences of being found to be consuming alcohol.
The Authority accepted that the applicant may continue to use alcohol upon his return to Iran,[57] though it did not accept that the applicant feared harm on this basis. A point of unreasonableness or illogicality is said to arise in the Authority’s reasoning at [19], where it found that: [58]
If the applicant were to engage in occasional alcohol consumption in Iran, given the widespread nature of alcohol consumption in Iran and the ease in which alcohol has been reported to be available to the general population, I am not satisfied that his actions would come to the adverse attention of the Iranian authorities. On this basis, I am not satisfied there is a real chance the applicant will face any harm on this basis, now or in the reasonably foreseeable future.
[57] CB 301 at [16]; CB 302 at [19]
[58] CB 302
This passage is said to reveal legally unreasonable or illogical thinking, suggesting that because alcohol is widely available, those who consume it will go unpunished. This is said to be manifestly illogical, particularly considering the acknowledgement by the Authority that the country information before it states that consuming alcohol can carry a punishment of up to 80 lashes under the law of the Islamic Republic of Iran.[59] The applicant contends that the Authority has placed disproportionate weight on the availability of alcohol for purchase, while failing to grapple with what would occur if the applicant's alcohol use were to come to the attention of the Iranian authorities, and whether those consequences would constitute serious harm.[60]
[59] CB 301 at [17]
[60] CB 301 at [16]
Minister’s contentions
The Minister contends that the Authority was not exercising a discretion of any kind when it considered whether it was satisfied that the applicant satisfied the criteria for a protection visa. In accordance with s.473EA, the Authority expressed the reasons which it had for not being so satisfied. In substance, the applicant seeks to impugn that reasoning as irrational or illogical. There are well-developed principles with respect to challenges of this kind.
The Minister submits that, contrary to the applicant’s submissions, it was not irrational or illogical for the Authority not to be satisfied that the occasional drinking by the applicant in Iran would come to the adverse attention of the Iranian authorities given “the widespread nature of alcohol consumption in Iran” and the ease with which it is obtained.
The fact that an offence is on the statute book, and carries a certain maximum penalty, does not entail that the law is vigilantly enforced.[61]
[61] Cf. applicant’s submissions, at [24]
Here, the country information indicated to the Authority that consumption of alcohol in Iran is widespread, to the point where Iran has “the 19th highest alcohol consumption in the world”, and “[a]lcohol consumption is becoming a normal part of everyday life for more and more Iranians”, despite the legal ban.[62]
[62] CB 301-302 at [17]
The Minister submits that the above factual finding (which the applicant has not challenged) may rationally support an inference that the relevant law is not vigilantly enforced. That is either because it is implausible that so many people would consume alcohol if such conduct attracted a real risk of being punished, or because it is implausible to consider that so many people are in fact being prosecuted and punished for such conduct.
It is said not to be to the point whether this Court, or a different decision-maker, might have drawn the inference which the Authority drew in this case. The question is ultimately whether it was open to the Authority to draw that inference, as Crennan and Bell JJ explained in Minister for Immigration vSZMDS.[63] The Minister submits that it was open to the Authority to do so.
[63] (2010) 240 CLR 611
Resolution
The applicant submits that error arises primarily from the Authority’s consideration of the consequences of the applicant's continued use of alcohol if he were to return to Iran.
I accept that the applicant raised this claim squarely in his statutory declaration,[64] stating:
My main reasons for seeking the protection of Australia is fear of harm at the hands of the Basij secret police and the Iranian Government on account of my perceived irreligious behaviour, particularly my use of alcohol.
[64] CB 182 at [3]
The applicant made further reference to his issue in his submission to the Authority,[65] stating:
…if I am to be caught drinking again I would be hung or sentence to death the third time or as some other new country information states the fourth time around which I am not sure of exactly. Since alcohol is the only think I can use to continue living or calm my pains. (error in original)
[65] CB 290
The Authority accepted that the applicant engaged in occasional consumption of alcohol in Iran, and may continue to do so on return.[66] The Authority stated that “[t]he applicant has not claimed to fear returning to Iran on the basis of any future alcohol consumption”. In particular, the Authority noted that, in his interview with the delegate, “the applicant stated that it was as easy for him to obtain alcohol as it was to open the fridge door but this is not the issue for him and not the reason he left Iran”.[67]
[66] CB 301 at [16]
[67] CB 302 at [18]
Otherwise, relevantly, the Authority stated as follows:[68]
[68] CB 301-302 at [17], [19]
Consuming alcohol can carry a punishment of up to 80 lashes under Islamic republic laws. Despite the legal ban on alcohol consumption, reports indicate that 200,000 people in Iran are involved in the sale of alcoholic beverages. Iranians between the ages of 17 and 35 are said to comprise the biggest part of the market for alcohol. Alcohol consumption is becoming a normal part of everyday life for more and more Iranians and while drinking, selling and importing alcohol is illegal, one can find alcoholic beverages within an average of 30 minutes in major Iranian cities. DFAT reports that Iranians who wish to obtain alcohol can do so relatively easily and alcohol smuggling is widespread. Iran has the 19th highest alcohol consumption in the world.[69]
[69] The Authority’s source of information was a DFAT country report. Interestingly, a WHO report referred to on Wikipedia lists Iran as 168th in per capita alcohol consumption with an official recorded consumption of zero
…
Although the applicant has demonstrated and expressed a desire to quit drinking alcohol, I accept he may continue to consume alcohol upon return to Iran. If the applicant were to engage in occasional alcohol consumption in Iran, given the widespread nature of alcohol consumption in Iran and the ease in which alcohol has been reported to be available to the general population, I am not satisfied that his actions would come to the adverse attention of the Iranian authorities. On the basis, I am not satisfied there is a real chance the applicant will face any harm on this basis, now or in the reasonably foreseeable future. (citations removed)
Similarly, in the context of considering complementary protection, the Authority stated that while the applicant may engage in occasional alcohol consumption in Iran “there is no real chance the applicant will face harm on this basis”.[70]
[70] CB 305 at [37]
It is implicit in the grant of a statutory power or duty that the power or duty is to be exercised reasonably.[71] As a consequence, unreasonableness is a recognised form of error that may give rise to a conclusion that the decision maker has failed to exercise his or her jurisdiction. Irrationality and illogicality in the course of decision-making also constitute jurisdictional error, and have been regarded as a component part of unreasonableness.
[71] Minister for Immigration v Li (2013) 249 CLR 332 at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J)
As Allsop CJ observed in Minister for Immigration v Stretton,[72] the question is whether the decision in question:
has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.
[72] (2016) 237 FCR 1 at [11]
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation[73] Lord Greene articulated the standard of unreasonableness as being a decision “so unreasonable that no reasonable authority could ever have come to it”. Although Wednesbury is often used as the benchmark for unreasonableness, the plurality in Li observed that Wednesbury is neither the starting point for the standard of reasonableness, nor the end point.[74] The legal standard of unreasonableness is not limited to irrational or bizarre decisions.[75] Further, a conclusion of unreasonableness may be available even where a particular error in reasoning cannot be identified.[76]
[73] [1948] 1 KB 223 at 230
[74] at [68]
[75] at [68]
[76] at [68]. See also House v The King (1936) 55 CLR 499; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360
The plurality decision in Li also recognised, as had Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[77] that an administrative decision which failed to give adequate weight to a relevant factor of great importance, or gave excessive weight to an irrelevant factor of no importance, may be set aside for unreasonableness.[78] The plurality summarised the position as follows:
Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
[77] (1986) 162 CLR 24 at 41, Gibbs CJ and Dawson J agreeing at 30, 71
[78] (2013) 249 CLR 332 at [72]
The applicant thus invokes principles of legal unreasonableness drawn from cases dealing the exercise of discretionary powers of different kinds, including Li (power to adjourn a review) and Stretton (power to cancel a person’s visa on character grounds). But care must be taken in applying reasoning in those cases and contexts to impugn reasoning of the Authority (or the Administrative Appeals Tribunal or a delegate) on whether or not an applicant satisfies the criteria for a visa.
In Ekinci v Civil Aviation Safety Authority,[79] the Full Federal Court explained the limits of “unreasonableness” by reference to concepts of illogicality and irrationality as follows:
There is nothing in Li which contradicts the view previously expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] that it is not the Court’s function to substitute its own decision for that of the primary decision-maker:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical and rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …
[79] (2014) 227 FCR 459 at [72]. See also, for example: Minister for Immigration v SZUXN (2016) 69 AAR 210 at 219 (Wigney J); CSJ15 v Minister for Immigration [2017] FCA 1463 at [52] (Tracey J); Freeman v Military Rehabilitation and Compensation Commission [2018] FCA 394 at [82] (Kenny J)
In Sidhu v Minister for Immigration,[80] the Federal Court observed that:
[t]he threshold for establishing that the Tribunal’s reasoning is illogical or irrational is particularly high. The authorities clearly established that the Tribunal’s reasoning must demonstrates ‘extreme’ illogicality or irrationality ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal’ (SZRKT at [148] cited with approval in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]). The extreme illogicality or irrationality that the Appellant is required to establish does not necessarily have to be the final conclusion that the Tribunal reached, but can extend to illogicality or irrationality in the fact finding process which leads to that end result. Ultimately, the overarching question is whether the decision is affected by jurisdictional error.
[80] [2017] FCA 889 at [37] (Derrington J). See also, for example: Minister for Immigration v SZLSP (2010) 187 FCR 362 at [40]-[41]; Minister for Immigration v SZJSS (2010) 243 CLR 164 at [34]
The Authority’s reasons at [19] are open to two interpretations: the first (as submitted by the Minister) is that the occasional consumption of alcohol by the applicant would not bring him to the adverse attention of the Iranian authorities because the law proscribing alcohol consumption is not rigorously enforced; the second interpretation is that the applicant’s occasional consumption of alcohol would not be detected because of the sheer number of consumers of alcohol. The first interpretation involves a finding that the authorities “turn a blind eye” to alcohol consumption. The second involves a finding that the large numbers of alcohol consumers renders the risk of any individual being detected very low.
Neither interpretation leads to a conclusion that the Authority’s reasoning was so irrational or illogical that reasonable minds cannot differ on it. The available country information supported a conclusion that alcohol consumption is very common in Iran. The applicant himself supported that view in his evidence to the Authority. The information available to the Authority supported a conclusion that either Iranian authorities were not addressing the issue because they did not care to, or because the “problem was too big”, or both.
In my opinion the conclusion reached by the Authority was open to it on the material before it. The consequences of consuming alcohol in Iran may constitute serious or significant harm but the Authority was entitled to conclude that the applicant’s risk of suffering that harm was neither real nor significant.
I reject Ground 1.
Ground 2 – did the Authority act unreasonably or illogically by failing to consider obtaining information in relation to whether the applicant would face harm if he were to consume alcohol upon returning to Iran?
Applicant’s contentions
The applicant contends that it was, in the circumstances, legally unreasonable for the Authority not to give, or not to consider giving, him an opportunity pursuant to s.473DC(3) of the Migration Act to be heard in relation to the issue of whether the applicant would face harm if he were to consume alcohol upon return to Iran.
There is said to have been an important difference between the findings made by the delegate and those made by the Authority. Notably, the delegate accepted that the applicant would have to modify his behaviour regarding his drinking of alcohol to lessen the chance of encountering serious harm, and considered that it is a reasonable step that the applicant would avoid drinking alcohol to avoid persecution, given his own evidence that he was trying to overcome this addiction.[81]
[81] CB 255-256 at [95]-[98]
The Authority is said to have affirmed the delegate’s decision on a different basis, being that the applicant would continue to drink alcohol but would not come to the attention of authorities in doing so. The Authority did not invite or consider inviting the applicant to comment on this issue, which resulted in adverse findings against him.
The applicant submits that the Authority acted legally unreasonably in not considering exercising its statutory powers under Part 7AA of the Migration Act to give the applicant an effective opportunity to address an issue which the Authority found dispositive, in circumstances where the delegate had not considered what would happen if the applicant were to continue drinking alcohol. That is, as a consequence of the Authority’s adverse findings on this new issue, it proceeded to conclude that the applicant would not face harm if he were to consume alcohol upon return to Iran.
The applicant submits that, in circumstances where the Authority proposed to make adverse findings in respect of an issue that was not before the applicant, the Authority had an obligation under Part 7AA of the Migration Act to give, or at least consider giving, the applicant an opportunity to be heard with respect to that issue.
The new issue arising is said to be the question of what would happen if the applicant were to continue drinking alcohol upon his return to Iran, and came to the attention of the authorities for doing so. The delegate ceased consideration at its conclusion that the applicant would not drink alcohol upon return to Iran and did not go on to consider what would happen to him if he did. The Authority found that he may continue to drink, but would not come to adverse attention of authorities for doing so.
The applicant contends that the failure to provide, or consider providing the applicant with an opportunity to be heard with respect to this new issue constituted an unreasonable exercise of statutory discretion by the Authority. It is thus said to amount to jurisdictional error.[82]
[82] CRY16 v Minister for Immigration & Anor [2017] FCCA 1549 at [9]-[16]
Minister’s contentions
As noted above, the applicant contends that it was “legally unreasonable” for the Authority not to give, or consider giving, the applicant “an opportunity pursuant to s.473DC(1) of the Migration Act to be heard in relation to the issue of whether the applicant would face harm if he were to consume alcohol upon return to Iran”.
The Minister submits that, in circumstances where the Authority was not required to include in its written statement under s.473EA discussion of whether and how it considered whether to exercise its power under s.473DC, the applicant cannot discharge his onus of proving that the Authority did not consider its exercise.[83]
[83] see BCQ16 v Minister for Immigration [2018] FCA 365 at [38]-[52] (Thawley J), applying Minister for Immigration v SZGUR (2011) 241 CLR 594 and distinguishing Minister for Immigration v Yusuf (2001) 206 CLR 323
In substance, the kind of argument which the applicant is advancing is that it was “unfair” not to “hear” from the applicant about a new “issue” where the Authority’s decision identified a different reason for refusing the visa compared to the delegate.[84] In substance, that is a complaint to the effect that the procedure was unfair (i.e., breach of a well-recognised aspect of the “hearing rule”). But, as the Federal Court has repeatedly confirmed, s.473DA(1) of the Migration Act has the effect that Part 7AA exhaustively codifies the requirements of the natural justice hearing rule.[85] In particular, the Authority is not required by any element of that code to identify a new “issue” to the applicant.
[84] SZBEL v Minister for Immigration (2006) 228 CLR 152
[85] see, for example, DBE16 v Minister for Immigration [2017] FCA 942 at [60]-[65]; Minister for Immigration v BBS16 [2017] FCAFC 176 at [85]-[101]; DBA16 v Minister for Immigration [2017] FCA 1580 at [8]; DGZ16 v Minister for Immigration [2018] FCAFC 12 at [69], [75] (Full Court)
Resolution
The relevant provisions of Part 7AA are set out in Minister for Immigration v CRY16[86] which is a case dealing with the question of relocation within Lebanon.
[86] [2017] FCAFC 210 at [10]-[13]
The applicant draws attention to the following passages of the Full Federal Court’s judgment in CRY16 where it stated:[87]
[87] at [44]-[49], [67], [82]
The respondent submitted the real issue was the question whether, if a new issue arose for the first time before the Authority, the Authority should consider whether to exercise its available powers to invite the referred applicant to give new information in relation to that issue or, more generally outside the framework of information, to invite a response or provision of submissions. One available source of power was s 473DC(1) or (3).
A second aspect to that was whether, in undertaking that consideration, the Authority should consider whether or not the referred applicant had had a reasonable opportunity to be heard on that issue before the delegate. The starting point was that Pt 7AA provided for a referred applicant to be heard on the issues and that that generally took place before the delegate.
The regime was not set up to deny an opportunity to be heard to a referred applicant. It was not necessary to say that there was an opportunity to be heard that governed the Authority’s functions. But at some point the Authority must turn its mind to whether the referred applicant had had an opportunity to be heard and should be given an opportunity to address the issue.
Section 473DC(2) said there was no duty but, in contrast to the language in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319, it did not remove the obligation to consider. The language of this provision simply said no “duty to get”. Nowhere was there anything addressed to the question of consideration. What the primary judge relied upon as informing that obligation was the underlying question of whether there had been an opportunity to be heard on the issue, and that was different from saying that the Authority must give an opportunity to be heard.
Without conceding that there was no room for more general natural justice obligations within Div 3, the primary judge was not postulating some obligation to give a hearing but that, in deciding whether or not to exercise these powers, the Authority should turn its mind to whether or not the referred applicant had had an opportunity to be heard on that issue already. The powers were put there for the very purpose of ensuring that, if it was necessary to give a hearing on a new issue, that was how it was to be done.
As held by the primary judge, the obligation was not to get the information or to remit, but to consider whether to do either of those things.
…
It is also relevant that, as explained by Gageler J in Li at [92], reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s.473DA it is important to consider the present issue through the lens of Division 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information? Thus although we accept the Minister’s submission that the respondent had no inkling, and no way of having an inkling, that the Authority was going to accept the case he had put to the delegate but then decide against him on a different basis, we do not consider that the procedural fairness perspective exhausts the legal analysis. Further, in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.
I prefer the Minister’s submissions on this ground. The applicant relies heavily on the decision of the Full Court in CRY16.[88] However, care needs to be taken in understanding the limit of the principle for which that decision stands.[89]
[88]The applicant extensively quotes from the judgment, including [44] to [49] as reproduced above. Particular care must be taken in that respect, because [44] to [49] form part of the Court’s summary of the applicant’s submissions. The Court’s own reasons commence at [66]
[89] The Minister had applied for special leave to appeal from the Full Court’s decision, and formally submitted that it was wrongly decided, however the High Court refused special leave on 17 April 2018; see Minister for Immigration v CRY16 & Anor [2018] HCASL102
In CRY16, the Full Court considered that the applicant had not had an opportunity to give evidence in relation to the possibility of relocating in order to avoid harm in his home area, and in particular the reasonableness of relocation to such a place. The Full Court held that “[t]he Authority must … have been taken to have known that the question of relocation depended on the particular circumstances of the respondent”.[90] The Full Court held that the Authority’s failure to exercise its power under s.473DC to invite the applicant to give new information “meant that it disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation”.[91]
[90] [76]
[91] [82]
This case can be distinguished on its facts. The applicant had ample opportunity to give whatever evidence he wished in relation to his fear of harm arising from consumption of alcohol. He gave that evidence, including to the effect that risk of harm arising from alcohol consumption was not the reason he left Iran.[92] He suffered no impairment in giving such evidence, or in understanding that the visa application stage may be his only opportunity to advance whatever claim to fear harm that he had. The delegate clearly explained that to him, and the applicant indicated that he understood.[93]
[92] see transcript, page 17
[93] transcript, page 5
Further, the present case is not a relocation case, where it might be argued that the possibility of relocating to a particular place needs to be identified to an applicant in order for the applicant to be able to give evidence and submissions about that. The features which the Full Court found made the Authority’s failure to consider exercising its discretion under s.473DC unreasonable are absent here.[94]
[94] see also CLL16 v Minister for Immigration [2018] FCA 348 at [11] (Davies J)
I reject Ground 2.
Ground 3 – did the Authority constructively fail to exercise its jurisdiction by failing to consider an integer of the applicant’s claims, being that he is likely to use alcohol if returned to Iran and that if the authorities became aware of this, he would suffer serious consequences?
Applicant’s submissions
By Ground 3, the applicant submits the Authority’s consideration of the matter ceased at whether or not the applicant would come to the adverse attention of the authorities for using alcohol, and did not proceed to consider the consequences if he did. This is said to be relevant because of the Authority’s “erroneous” comments[95] that “[t]he applicant has not claimed to fear returning to Iran on the basis of any future alcohol consumption”.
[95] CB 302 at [18]
The Authority accepted[96] that the applicant “may continue to consume alcohol upon return to Iran”. As reproduced at [50] above, it further stated:
If the applicant were to engage in occasional alcohol consumption in Iran, given the widespread nature of alcohol consumption in Iran, and the ease in which alcohol has been reported to be available to the general population, I am not satisfied that his actions would come to the adverse attention of the Iranian authorities. On this basis, I am not satisfied that there is a real chance the applicant will face any harm on this basis, now or in the reasonably foreseeable future.
[96] CB 302 at [19]
The applicant contends that, by ceasing its consideration at whether or not the applicant would use alcohol upon his return to Iran, the Authority failed to take into account an integer of this applicant’s claims, being that he would continue to use alcohol, and that if he were discovered by authorities, he would suffer serious consequences.
Minister’s contentions
The Minister contends that the Authority did not “cease its consideration” on the factual question of whether the applicant would use alcohol on return to Iran.
The Authority accepted that he may consume alcohol occasionally on return (despite having expressed a desire to quit drinking).
The Authority then considered that it was not satisfied that such actions (i.e., occasional drinking) “would come to the adverse attention of the Iranian authorities”. On this question, the Authority was “not satisfied that the applicant will face any harm on this basis, now or in the reasonable foreseeable future”.
Resolution
The applicant’s third ground is that the Authority erred by “[b]y ceasing its consideration at whether or not the applicant would use alcohol upon his return to Iran” and not considering whether “if he were discovered by the authorities, he would suffer serious consequences”.
Ground 3 is closely related to Ground 1. I have already rejected the assertion that the Authority’s reasoning was so illogical as to go to jurisdiction. This ground also fails because the Authority did not overlook the fact that the applicant may continue to use alcohol in Iran. On the contrary, the Authority’s reasoning at [19] was predicated on its acceptance that the applicant may consume alcohol in Iran notwithstanding that he wished to quit drinking.
Neither did the Authority ignore the consequences for the applicant if he were to be detected consuming alcohol in Iran. Rather, the Authority reasoned that he would not be detected. It was entitled to do so.
I reject Ground 3.
Ground 4 – did the Authority constructively fail to exercise its jurisdiction by failing to consider an integer of the applicant’s claims, being that he fears harm on the basis of his suspected apostasy, in which alcohol use is a factor?
Applicant’s contentions
By Ground 4, the applicant submits that the Authority has failed to consider the significance of alcohol consumption in the applicant’s claims. It is said to be clear that the Authority has considered alcohol use to be an activity with no particular significance to the applicant's religious or political identity.
The applicant submits, however, that he has claimed (on numerous occasions and in no uncertain terms) that he fears harm on the basis of being considered an apostate, and that his use of alcohol is a factor contributing to that perception of him. The Authority is said to have failed to consider the use of alcohol as an activity of any political or religious significance. There is at least one item of country information that was before the Authority that is said to support this argument.[97]
[97] See footnote 4 of the Authority’s reasons, which points to this article: >
Further, the applicant suggests that the delegate considered the issue of alcohol consumption as a matter of religious significance, including making the finding that:[98]
There are widespread reports of the Iranian regime’s suppression of alcohol. According to the Penal Code consumption of intoxicants by Muslims – either in public or in private – can be subject to the hadd punishment of eighty lashes.
In light of this and with no evidence to the contrary, I accept the applicant has been arrested, convicted and sentenced on two occasions for alcohol consumption in Iran.
[98] delegate’s decision, CB 249 at [54]-[55]
The delegate’s reference to the punishment as “hadd” is said to indicate acceptance that the penalty is based in Islamic law. There are copious references to country information to that effect in that section of the delegate’s decision, which are taken to have been before the Authority.
Additionally, there are references throughout the transcript[99] of the interview with the delegate to the religious connotations of alcohol use, including the following:
Q76: So are you saying that because of all your addictions you got into problems with the Iranian authorities. Is that right?
A: Yes, I had a lot of problem because of the day of Muharram or the day or (indistinct) get killed, they called Muharram. On that month I was drinking and they put me in gaol for six months and they give me a lash, 80 lash as well.
Q77 …
A: …So the judge told me try to get the devil out of your body and they give me 80 lash as well.
[99] transcript, pages 16-23
Q83 …
A: (p20) I said what kind of religion is this, you’re not allowed to drink and not allowed to go out with a girlfriend, and then we do whatever, a small thing, one (indistinct words) and come from the (indistinct) and whatever they want, they do with you. So I lost control completely. I said what kind of religion is this.
Q87: This was the incident that prompted your decision to depart Iran?
A: Yes, that incident happened because put me in danger. Also in the meantime my family is yelling and told me you lost our faith, that’s the end of everything because you’re drinking, going out with a girl, doing all the naughty thing and then you will be the one actually causing problem for us, you’re the one actually losing our faith from the neighbours.
Q89: So when you went to prison for six months, that was the first time you were arrested?
Yes, before that I was arrested by authority, actually they didn't put me - didn't put me in gaol, didn't fingerprint me, so I had - I was arrested before and they me - for bail or for some reason, but didn't put me in gaol. But the first time actually they put me in gaol but I did - the holy months of Muharram, because that month is very holy in Iran, that's why they put me for six months in gaol and gave me 90 lash. After when I was - after I leave from the prison I was arrested again - one week later I was arrested again.
The applicant submits that the imposition of a higher penalty during the holy month of Muharram is a clear indication of the religious connotation of alcohol consumption. It is not apparent that the Authority appreciated the significance of this claim, which is further indicative of the Authority’s mischaracterisation of the act of drinking alcohol.
The applicant is said to have clearly articulated his claims around alcohol use as a fear of being treated as an apostate and punished for behaviour that was un-Islamic. The Authority treated the claim as relating only to conduct that was against the law, without comprehending the religious significance of drinking alcohol. In so doing, the Authority is said to have failed to consider the nexus between alcohol use and the applicant's imputed political or religious opinions, and the resulting likelihood that he would be punished for consuming alcohol.
Minister’s contentions
The applicant claimed to have been arrested and imprisoned for alcohol use, including on one occasion for drinking on a holy day. But the Minister contends that the Authority, having regard to various concerns as to the applicant’s credibility, simply did not accept the applicant’s claims. Indeed, the Authority did not accept that the applicant had ever, in fact, been arrested or imprisoned for alcohol use.[100]
[100] CB 300 at [11]
The Authority found that, despite the applicant having consumed alcohol in the past in Iran, he had “not previously faced any harm from his family, the community or the authorities on the basis of his religious beliefs”.[101]
[101] CB 303 at [27]
The Authority also made the broader findings already addressed above as to the absence of a real chance that occasional drinking in Iran would attract the adverse attention of the Iranian authorities.[102]
[102] CB 201-302 at [16]-[19]
The Minister submits that these findings dealt with the applicant’s claims relating to alcohol use.
Resolution
The applicant’s fourth and final ground is that the Authority failed to consider “the significance of alcohol in the applicant’s claims”;[103] it failed to consider “the nexus between alcohol use and the applicant’s imputed political or religious opinions, and the resulting likelihood that he would be punished for consuming alcohol”.[104]
[103] see [90] above
[104] see [96] above
It may be accepted that the Iranian proscription of the drinking of alcohol derives from Sharia law, which in turn is based upon the Koran. It follows that there is a link between the consumption of alcohol in Iran and the attribute of religion in the criteria for a protection visa.
There is nothing to indicate that the Authority considered the applicant’s claim as a particular social group claim. There are indications in the Authority’s reasons that it considered the claim as a claim based on religion.
The Authority dealt with the religious significance of the applicant’s claims in the context of the secular/religious divide in Iran at [23]-[27]. Alcohol consumption forms a part of the secular lifestyle along with dress, tattoos and interaction between the sexes. The Authority rejected the applicant’s claim based on his claimed irreligiosity which, in my view, included the integer of alcohol consumption.
I reject Ground 4.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order
I will hear the parties as to costs.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 June 2018
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