Daf17 v Minister for Immigration - [2020] FCCA 1763

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAF17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1763

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well-founded – Authority finding that the applicant could modify his behaviour to avoid harm from non-state actors – jurisdictional error established in respect of the Authority’s consideration of complementary protection.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 65

Cases cited:

ARG15 v Minister for Immigration [2016] FCAFC 174

BCQ16 v Minister for Immigration [2018] FCA 365

BIL17 v Minister for Immigration [2019] FCAFC 6

EHF17 v Minister for Immigration [2019] FCA 1681

ESD17 v Minister for Immigration [2018] FCA 1716

Hedari v Minister for Immigration [2020] FCA 298

Lafu v Minister for Immigration [2009] FCAFC 140

Minister for Immigration v CED16 & Anor [2020] HCA 24

Minister for Immigration v Haq [2019] FCAFC 7

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Singh (2014) 231 FCR 437

Minister for Immigration v Stretton (2016) 237 FCR 1

Minister for Immigration v SZMDS (2010) 240 CLR 61

Minister for Immigration v MZYTS (2013) 230 FCR 431

Minister for Immigration v SZVFW (2018) 264 CLR 541

Mowatt v Minister for Home Affairs(No 2) [2018] FCA 1157

Muhur v Ashcroft, 355 F.3d 958 at 961 (7th Cir. 2004)

SZOOR v Minister for Immigration (2012) 202 FCR 1

SZWCO v Minister for Immigration [2016] FCA 51

Applicant:

DAF17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2127 of 2017

Judgment of:

Judge Driver

Hearing date:

30 June 2020

Delivered at:

Sydney

Delivered on:

12 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr T Bagley, with Mr D McDonald Norman, pro bono publico

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 19 December 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2127 of 2017

DAF17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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 19 December 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 Iraq. On 25 February 2016, he lodged an application for a Safe Haven Enterprise Visa (SHEV).[1] As part of this application, he provided a statement summarising his claims for protection (SHEV Statement).[2]
[1] Court Book (CB) 30-76
[2] CB 71-76
On 10 November 2016, the delegate refused the SHEV.[3]
[3] CB 114-127
On 18 November 2016, the applicant was referred to the Authority.[4] On 11 December 2016, his representative provided a submission to the Authority.[5]
[4] CB 129-130
[5] CB 131-137
On 19 December 2016, the Authority affirmed the delegate’s decision.[6]
[6] CB 141-153

Claims for protection

The applicant is a 24 year old Shia Muslim and national of the Republic of Iraq, who resided in a named location in the south of the country until his departure from the country in July 2013.
As set out in his written statements and at interview,[7] the applicant claims to fear harm, including death, from Shia militia and/or paramilitary groups, particularly Asa'ib Ahl al-Haq (AAH), Islamic State/Daesh and/or members of his ex-wife's family and/or tribe (the Al-Shourayfat tribe) due to:
a)his identification and status as a Shia Muslim, resident in the south of Iraq;
b)his identification as a non-practicing Muslim, and his history of transgressing strict Islamic codes of behaviour which led to him being harassed in 2011-2012 by AAH for employing prohibited baking and hairdressing techniques in his work as a baker and hairdresser, and being kidnapped, detained, beaten and threatened for consuming alcohol in public;
c)his abandonment of his ex-wife, and his failure to provide ongoing financial assistance to her, in breach of certain conditions of his "marriage contract"; and
d)a perceived pro-Western and/or anti-Islamic political opinion arising from his "pro-Western" behaviour and his attempts to seek asylum overseas, compounded by the release of his personal details in the Minister’s Department's "data breach" on 10 February 2014.
[7] see the applicant's statutory declaration dated 24 February 2016 at CB 71-76; post-interview submission dated 28 October 2016 at CB 103-110; delegate's decision record at CB 117-8; submission made to the Authority on 11 December 2016 at CB 133-137; Authority's reasons at [5]-[6] CB 142-3

Authority decision

The Authority was not satisfied that the above matters, considered either individually or cumulatively, meant that the applicant would face a "real chance" or "real risk" of suffering serious and/or significant harm if returned to Iraq, as required by s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act), respectively.
In respect of the applicant's claims to fear harm on the basis of his religious identification and practice, the Authority accepted that the applicant had been mistreated by the AAH as claimed. However, the Authority was not satisfied that these actions rendered the applicant a "particular or ongoing target of AAH or other militia" at the time of his departure from Iraq.[8]
[8] see [9]-[10] CB 144
As a result, and supported by an absence of country information suggesting that Shia militias were targeting "non-practicing Muslims", the Authority found that the applicant would not be targeted due to his previous actions, or his status as a "non-practicing Muslim", if he were to return to Iraq.[9]
[9] see [17], [23] CB 146-7
Insofar as the applicant claimed that his alcohol consumption was a form of "protest", the Authority:
a)noted that country information suggested that participation in protest (of itself) did not give rise to a real chance of serious harm;
b)did not accept the applicant would publicly drink alcohol if he were to return to Iraq, and
c)did not consider this was a modification of behaviour which would impermissibly conflict with, alter or conceal a characteristic, belief or attribute protected by s.5J(3) of the Migration Act.[10]
[10] [19]-[22] CB 146-147
Furthermore, and on the basis of country information which suggested that "Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence", the Authority was not satisfied that the applicant's status as a Shia in southern Iraq gave rise to a real risk of harm arising from sectarian conflict and/or generalised violence.[11]
[11] [16] CB 145-6
In respect of the applicant's claims to fear harm from his ex-wife's family or tribe, the Authority noted that there were a "number of inconsistencies" in the applicant's evidence (and the claims made on his behalf by his representative), which led the Authority to doubt aspects of his evidence.
Observing that the applicant's evidence was "unclear as to what would happen" if the demands of his ex-wife's family were not met, the Authority concluded that the "essential and significant reason" for his ex-wife's family's conduct was "largely financial in nature" and seeking "financial compensation", "due to his lack of support of her from July 2013 onwards".[12]
[12] [11]-[13] CB 144-145, [27] CB 148
In doing so, the Authority rejected the applicant's claim that his ex-wife's family wished to kill him for bringing them shame or dishonour, and thus he faced persecution due to his status as a member of a social group comprising "men targeted by a wife's tribe by dishonourable acts".[13]
[13] [13] CB 144-145, [27] CB 148)
Accordingly, the Authority found that the applicant did not hold a "well-founded fear of persecution" on this basis, as the fear of persecution was not "for reasons of race, religion, nationality, membership of a particular social group or political opinion", as required by s.5J(1)(a) of the Migration Act.
In respect of the applicant's claims to fear harm on the basis of a perceived "pro-Western"/"anti-Islamic" political opinion, the Authority did not accept the applicant's assertions that he would be a "target for extremist groups" due to his extended period in Australia. Instead, the Authority preferred country information before it which noted that there was "no evidence to suggest [that] voluntary returnees from the West are not assimilated back into their communities".[14]
[14] [25]-[26] CB 147-8
The Authority accepted that the applicant's personal details were available and may have been accessed during the data breach. However, the Authority found the possibility of Iraqi authorities or militias accessing this data was remote and thus did not give rise to a "well-founded fear of persecution".[15]
[15] [26] CB 147-148

The current proceedings

These proceedings began with a show cause application filed on 6 July 2017.
The application was listed for hearing on 11 December 2018. The hearing of that application was adjourned to 29 January 2019 as the applicant did not appear at the Court, and, when telephoned, claimed not to have received any of the materials dispatched to him.
The application had also included an application for an extension of time in which to commence proceedings. On 29 January 2019, I ordered that the time for the filing of the application be extended up to and including 6 July 2017.
On that date, I also requested the Minister to consider whether the Authority acted unreasonably or otherwise unlawfully in its treatment of new information provided by the applicant. This issue became the subject of a supplementary outline of submissions filed on behalf of the Minister. It ultimately proved unnecessary to address that issue.
At the trial on 30 June 2020 I granted the applicant leave to rely upon his amended application, which contains the following grounds:
1. The Authority’s determination that the Applicant could take reasonable steps to avoid persecution or significant harm by not drinking in public was affected by jurisdictional error.
Particulars
a. The Applicant and his representatives claimed that he drank alcohol in public in Iraq as a political act: CB 74 [32], CB 135.
b. The Authority found that:
i.      the Applicant could take reasonable steps to avoid persecution by not drinking in public; and
ii.      the Applicant could find a way to express his political views in Iraq in a way that is protected under the law and not at odds with it (Reasonable Steps Finding): CB 146-147 [21].
c. In reaching the Reasonable Steps Finding, the Authority failed to correctly apply s.5J(3) of the Migration Act 1958 (Cth), in that:
i.      requiring the Applicant to refrain from the expression of his political views in this manner would conflict with characteristics fundamental to his identity or conscience; and/or
ii.      requiring the Applicant to modify his conduct in this manner would amount to alteration or concealment of his true political beliefs.
d. The Reasonable Steps Finding was material to the Authority’s exercise of power.
e. In the premises, the Authority’s error constituted a jurisdictional error.
2. The Authority’s determination that the Applicant would not publicly drink alcohol if he were to return to Iraq was affected by jurisdictional error.
Particulars
a. The Applicant and his representatives claimed that he drank alcohol in public in Iraq as a political act: CB 74 [32], CB 135.
b. The Authority:
i.      found that the Applicant ‘rarely drinks alcohol in Australia and is not a drinker generally’;
ii.      did not accept that ‘the [A]pplicant would publicly drink alcohol, were he to return to Iraq’: CB 146 [20]; and
iii.     on the basis of the above finding, did not accept that the Applicant would face a real chance of persecution or a real risk of significant harm for that reason.
c. In finding, on the basis of the fact that the Applicant rarely drinks alcohol in Australia and is not a drinker generally, that the Applicant would not publicly drink alcohol in Iraq, the Authority:
i.      failed to consider the political nature and motivations behind the Applicant drinking alcohol in Iraq (which did not exist in Australia); and/or
ii.      engaged in unreasonable, irrational and/or illogical reasoning.
d. The Authority’s finding that the Applicant would not publicly drink alcohol if he were to return to Iraq was material:
i.      to its determination that the Applicant would not face a real chance of persecution for this reason: CB 146-147 [21]-[22];
ii.      to its determination that the Applicant would not face a real risk of significant harm for this reason: CB 149 of persecution for this reason: CB 146-147 [21]-[22];
iii.     to its exercise of power.
e. In the premises, the Authority’s error constituted a jurisdictional error.
3. The Authority’s determination that the Applicant would not face a real chance of being seriously harmed if he were to engage in political expression if removed to Iraq was affected by jurisdictional error.
Particulars
a. The Applicant claimed to fear harm from extremist groups in Iraq because of his political views: CB 74-75 [32].
b. The Authority:
i.      found that freedom of political expression and political assembly are protected in the Constitution of Iraq;
ii.      found that ‘[s]ince 2011 demonstrations have been held across [Iraq] protesting widespread corruption and demanding greater civil and political rights’; and
iii.     on the basis of the above premises, found that ‘[i]f the [A]pplicant were to engage in such political expression, such as protest … he would not face a real chance of being seriously harmed’: CB 146 [19].
c.      In reaching the above finding, the Authority:
i.      failed to consider the Applicant’s claim to fear harm from non-state actors (rather than from the Iraqi state);
ii.      failed to consider whether the demonstrations since 2011 were directed towards state or non-state actors (as an integer relevant to whether the Applicant could express his political views in this manner);
iii.     failed to consider risks arising from participation in protests, notwithstanding the fact that such protests had occurred in the past; and/or
iv.      engaged in unreasonable, illogical and/or irrational reasoning.
d. The Authority’s finding that the Applicant could engage in political express in Iraq through protests was material to its exercise of power.
e. In the premises, the Authority’s error constituted a jurisdictional error.
In addition to the court book filed on 8 September 2017, I received as an exhibit[16] a Department of Foreign Affairs and Trade (DFAT) Country Report on Iraq published on 13 February 2015 (DFAT Report).
[16] Exhibit A1.
For the purposes of the trial, both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions and thank counsel for the applicant for their willingness to appear pro bono publico.

Consideration

Counsel for the applicant somewhat presciently elected to abandon the grounds relating to new information, including in relation to a non disclosure certificate, which had been the basis upon which I had granted a certificate for referral for legal assistance.[17]
[17] see Minister for Immigration v CED16 & Anor [2020] HCA 24
The issues now addressed relate to the Authority’s reasons at [17]-[21][18] and [32]-[33].[19]
[18] CB 146-147
[19] CB 149

The applicant’s contentions

The applicant and his representatives claimed that the applicant drank alcohol in public in Iraq as a political act. The Authority accepted that if the applicant were to publicly engage in anti-Islamic actions in Iraq, there was a real chance that he would be harmed by Shia militia groups and possibly devout Muslim individuals.[20] But it did not accept that the applicant would publicly drink alcohol if he were to return to Iraq. It found, relevantly, as follows:[21]
The applicant advised in his statutory declaration that he does not generally drink alcohol in Australia and does not claim to be an alcoholic or to have an innate need to consume alcohol … I prefer the earlier statement that he rarely drinks alcohol in Australia and is not a drinker generally. I do not accept that the applicant would publicly drink alcohol, were he to return to Iraq.
[20] [18] CB 146
[21] [20] CB 146
The applicant submits that these findings reflected a misunderstanding by the Authority of the applicant’s claims and were the product of unreasonable, illogical or irrational reasoning.
Both the fact that the applicant does not drink alcohol in Australia, and the fact that he is not an alcoholic, are consistent with why he would drink alcohol in Iraq. In Australia, he is allowed to drink alcohol. There is no moral or legal stigma involved in drinking alcohol in Australia. As the applicant explained,[22] he drank alcohol in Iraq, and would drink alcohol again on return, because publicly drinking alcohol is violently opposed by extremist groups. His behaviour in Australia is said to have been incapable of rationally supporting the Authority’s assessment that the applicant would not drink alcohol in the profoundly different legal and social environment of Iraq. Logic demanded the acceptance of the inverse of the Authority’s illogical reasoning: if the applicant frequently drank alcohol in Australia, that would tend to undermine his claim that he drank alcohol in Iraq as an expression of his political beliefs. The finding that he rarely drinks in Australia supports his claim that he publicly drank alcohol in Iraq for political reasons.
[22] at [32] CB 74-75
This asserted error may be characterised as follows.
a)first, the Authority’s reasoning was a failure to understand the applicant’s claims. The lawful formation of the state of satisfaction required by s.65 of the Migration Act requires “a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality”.[23] The Authority failed to understand why the applicant would drink alcohol in Iraq but not in Australia. In doing so, the Authority failed to properly engage with or understand the political basis for the applicant’s consumption of alcohol, and hence failed to form a correct understanding of his claims;
b)secondly, the Authority’s reasoning was unreasonable, irrational or illogical. There was no logical connection between the applicant’s claim that he does not drink alcohol in Australia and the resulting inference that he would not drink alcohol in Iraq, given the way in which the applicant had expressed his claims and the material before the Authority.[24] The inference reached by the Authority (that the applicant would not drink alcohol in Iraq) was not open on the reasons provided by the Authority for that inference.
[23] Minister for Immigration v MZYTS (2013) 230 FCR 431 at 443 [34]
[24] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 650 [135]

I accept that if the applicant succeeds on both Grounds 1 and 2, the errors will be jurisdictional in character.[25] Success on Ground 2 alone would also be jurisdictional in character. The applicant challenges the way in which the Authority expressed its findings in respect of whether the applicant faced a real risk of significant harm for the purposes of s.36(2)(aa) of the Migration Act. The Authority accepted that “there is a real chance that the applicant would be persecuted if he publicly drinks alcohol in Iraq and that such persecution may take the form of a beating”,[26] and found that it was arguable that such a beating could constitute cruel or inhuman treatment.[27] But it rejected this claim because of its prior determination that the applicant would not drink alcohol in Iraq:[28]
I do not accept that the applicant would engage in publicly drinking alcohol in Iraq. I therefore am not satisfied that there is a real risk that he will suffer significant harm.
[25] If the Authority did not conclude that the applicant would not drink alcohol in Iraq, and that if it did not conclude that it would be a reasonable adjustment for him to cease drinking alcohol, there is a realistic possibility that it could have concluded that he would face a real chance of persecution if removed to Iraq because he chooses to express his political views by drinking alcohol in public.
[26] [32] CB 149
[27] [33] CB 149
[28] [33] CB 149
The Authority did not rely, for the purpose of its complementary protection assessment, on its prior finding that he could take reasonable steps to avoid publicly drinking alcohol in Iraq in its finding that he would not face a real risk of significant harm.
The applicant submits that, if the Authority had not erred in reaching its conclusion that the applicant would not drink alcohol in Iraq, there is a realistic possibility that the Authority would have found that the applicant would face a real risk of significant harm in Iraq, rendering its error in that regard material. This error would exist even if the applicant fails in respect of Ground 1, given that there is no equivalent to s.5J(3) in respect of s.36(2)(aa) of the Migration Act.

Ground 1

As noted above, the applicant claims to fear harm if removed to Iraq because he opposes extremist religious groups in Iraq. He has claimed that one of the reasons why he would be at risk is because of how he chooses to express his opposition to these religious groups:[29]
If I were forced to return, I would be a target because I would refuse to bend to their demands, I would refuse to befriend or bow to these extremist groups. I’m not a drinker generally, but in Iraq I feel determined to drink because of the suppression: It is a way of protesting the lack of freedom. You are surrounded by hate, surrounded by fear in Iraq, drinking is one way of fighting it. I am young, I intend to live my life the way that I want, I will not abide by the rules of these hateful groups.
[29] [32] CB 74-75
In submissions to the Authority, the applicant’s representative similarly claimed that he drank alcohol as a political act:[30]
the applicant maintain[s] that he used to drink alcohol in the public areas in Basra because he believed in his freedom of choice.
[30] CB 135
The Authority accepted that if the applicant were to publicly engage in anti-Islamic actions in Iraq such as drinking alcohol in public, there was a real chance that he would be harmed by Shia militia groups and possibly devout Muslim individuals.[31] But it found that it would be open to the applicant to refrain from drinking in Iraq in order to avoid harm. It found, relevantly, as follows:[32]
Section 5J of the Act provides that the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification. The applicant is not a drinker generally nor does he claim to be an alcoholic. I do not accept that to modify his conduct by not drinking in public (even as a political act) would conflict with a characteristic that is fundamental to his identity or conscience; to conceal an innate or immutable characteristic of himself; alter his political beliefs or conceal his true political beliefs; or any other modification contemplated by s 5J(3)(c). I am satisfied that he can take reasonable steps to avoid persecution by not drinking in public and instead finding a way to express his political beliefs in Iraq (such as through protest) in a way that is protected under the law, and not at odds with it – as consuming alcohol is. I am satisfied that to refrain from drinking in public would therefore be a modification of his behaviour that is not proscribed in s 5J(3).
[31] [18] CB 146
[32] [21] CB 146-147
The applicant contends that these findings were not open to the Authority. They amounted to a misunderstanding or a misapplication of s.5J(3) of the Migration Act. Section 5J(3) of the Migration Act provides that a person does not have a well-founded fear of persecution if they can take “reasonable steps” to modify their behaviour. They cannot be required to modify their behaviour to avoid persecution where that modification would “conflict with a characteristic that is fundamental to the person’s identity or conscience”[33] or where it would require a person to “alter [their] political beliefs or conceal [their] true political beliefs”.[34] Requiring the applicant to refrain from drinking in public in order to appease extremist groups is said to fall afoul of both principles. The applicant “intend[s] to live [his] life the way that [he] wants” and refuses to “abide by the rules of these hateful groups”.[35] In circumstances where the political belief in question is “the right to enjoy personal autonomy”, requiring the applicant to refrain from expressing that personal autonomy so as to avoid persecution would conflict with the characteristic itself or would require the applicant to conceal or alter this belief.
[33] section 5J(3)(a)
[34] section 5J(3)(c)(iii)
[35] [32] CB 74-75
The applicant submits that it is not a “reasonable” modification of behaviour for the applicant to submit to the demands of terrorist or militia groups to refrain from drinking alcohol in public. Nor can he do so without ultimately altering or concealing his belief in personal autonomy, or do so in a way which does not conflict with his belief that he has the right to personal autonomy – including the right to drink without being told what to do:[36]
Christians living in the Roman Empire before Constantine made Christianity the empire’s official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesn’t follow that Rome did not persecute Christians, or that a Christian who failed to conceal his faith would be acting ‘unreasonably’. One aim of persecuting a religion is to drive its adherents underground in the hope that their beliefs will not infect the remaining population’.
[36]Muhur v Ashcroft, 355 F.3d 958 at 961 (7th Cir. 2004)
The applicant concedes that success on Ground 1 alone is not sufficient to give rise to jurisdictional error.

Grounds 2 and 3

As noted above, the applicant and his representatives claimed that the applicant drank alcohol in public in Iraq as a political act. Further, as noted above, the Authority accepted that if the applicant were to publicly engage in anti-Islamic actions in Iraq, there was a real chance that he would be harmed by Shia militia groups and possibly devout Muslim individuals.[37] But it found that if he were to express his socio-political views in other ways, he would not be harmed. It found, relevantly, as follows:[38]
The applicant states that drinking in public is his way of protesting against society in Iraq. Country information however provides that freedom of political expression and political assembly are protected in the Constitution. Since 2011 demonstrations have been held across [Iraq] protesting widespread corruption and demanding greater civil and political rights. If the applicant were to engage in such political expression, such as protest, I find that he would not face a real chance of being seriously harmed.
[37] [18] CB 146
[38] [19] CB 146
The applicant contends that this finding again reflected a misunderstanding by the Authority of the applicant’s claims, or a failure to consider relevant integers of those claims. Alternatively, this finding is said to have been the product of unreasonable, illogical or irrational reasoning.
First, the applicant seeks to protest against, and fears harm from, non-state actors. Constitutional guarantees of freedom of expression are completely irrelevant to whether he would be at risk of harm from non-state actors for the expression of his individual political beliefs. The Authority’s findings that the applicant would not be at risk of harm if he were to engage in political expression were based on legal protections and that there had been demonstrations “protesting widespread corruption and demanding greater civil and political rights”. Both of these findings related to the risks of harm from the Iraqi state, or arising from the expression of identified political opinions in a particular way against the state. But, in the applicant’s submission, these subsidiary findings were not capable of supporting a conclusion that the applicant could express his views in opposition to non-state actors in Iraq, or that he could express the particular political views that he wished to express.
Furthermore, the applicant notes that the evidence cited by the Authority in support of these findings[39] in the DFAT Report at [3.73] and [3.74], similarly does not provide a probative basis for the finding that the applicant could express his particular socio-political views in opposition to non-state actors and that there would not be a real chance that he would face persecution from non-state actors as a result. This evidence is instead far more confined, it relates to the expression of particular political views and the attitude of the state in response. There was no logical connection between the evidence cited and relied upon by the Authority and the conclusion reached as a result.[40]
[39] CB 146 [19]
[40] compare Hedari v Minister for Immigration [2020] FCA 298 at [8] and [10]-[11]
This distinction between state actors and non-state actors was integral to the case made on the applicant’s behalf by his representatives. In submissions to the Ministers Department, the applicant’s representatives had explicitly noted that he feared harm from “strict Shia militias”,[41] particularly AAH,[42] had cited country information regarding threats to people who were perceived to be “not adequately adhering to Shia Islam” by paramilitary groups,[43] and had argued that AAH “is operating under a mandate issued by the Iraqi government, and are not punished for the acts of violence they commit”.[44] The Authority’s reasoning as to whether the applicant would be at risk if he expressed his political views on return to Iraq does not engage at all with this distinction, or disclose any meaningful path of reasoning by which the ability to express views against the state necessarily entails an ability to express views in opposition to non-state actors. The applicant would be “left to guess what role, if any”, his claim that he feared harm from non-state actors, not the state, played in the Authority’s deliberations in this regard.[45]
[41] [1.2]CB 103
[42] [2.4]CB 104
[43] [2.7] CB 105
[44] [2.9]CB 105
[45] Lafu v Minister for Immigration [2009] FCAFC 140 at [49]
To that extent, the applicant submits that the Authority:
a)failed to understand the basis for the applicant’s fears in this regard or to proceed upon a correct understanding of how it was to be determined whether that fear was objectively well-founded,[46] or otherwise failed “to undertake the review that was invited by the nature of the claim advanced and the material before the Tribunal concerning that claim”;[47] and/or
b)reached these findings in circumstances where there was no logical connection between the evidence relied upon (the existence of constitutional protections and of demonstrations) and the inference reached (that the applicant would not be at risk of harm from non-state actors, including “Shia militia groups and possibly devout Muslim individuals”[48]), and hence engaged in unreasonable, irrational or illogical reasoning.[49]
[46] MZYTS at 443 [34]
[47] BIL17 v Minister for Immigration [2019] FCAFC 6 at [63]
[48] [18] CB 146
[49] SZMDS at 650 [135]; Hedari at [8] and [11]
Secondly, the applicant submits that the fact that demonstrations had occurred across Iraq “protesting widespread corruption and demanding greater civil and political rights” was not logically capable of establishing that the applicant would not face a real chance of harm if he were to protest in this manner. The fact of legal protection for these protests, and that such protests take place, was not exclusive of the prospect that demonstrators may nonetheless face risks of harm arising from their participation in such protests. The Authority did not consider whether participation in demonstrations of this kind would of itself expose the applicant to risks of harm.
Thirdly, for the reasons stated above, the applicant submits that the manner in which the Authority found that the applicant would not face a real chance of being seriously harmed if he were to engage in protest activity or other forms of political activity in Iraq was unreasonable, illogical or irrational.
The applicant contends that, if the Authority had not made the errors identified above, there is a realistic possibility that it could have proceeded to conclude that the applicant would face a real chance of persecution or a real risk of significant harm from the expression of his political views if removed to Iraq. Its error or errors in this regard were hence jurisdictional errors.

The Minister’s contentions

It is important, at the outset, to have a proper understanding of what the applicant actually claimed. This is because the entirety of the applicant’s claim appears to be predicated upon the idea that the applicant claimed to drink alcohol purely as a political act. Put slightly differently, the applicant’s case now is that before the delegate and the Authority he claimed to drink alcohol only as a conscious act of protest and for no other reason. In that regard, the following matters need to be borne in mind.
First, the applicant relied, in the statutory declaration supporting his protection visa application, on one incident where he had been drinking in a park with a friend. He claimed to have been beaten by members of a militia group who apparently disapproved of him drinking. Separately, the applicant claimed that on return to Iraq he would be a target because he would “refuse to bend to their demands” (being the extremist militia groups). He noted that even though he was not a “drinker generally” he was determined to drink because “it was a way of protesting the lack of freedom” (emphasis added). He went on to state that “you are surrounded by hate, surrounded by fear in Iraq, drinking is one way of fighting it” (emphasis added).
Later, in his written submission to the delegate, the applicant’s representative placed this claim in context. The representative noted that the applicant’s claim was that he engaged in “pro-Western” behaviour in Iraq and was targeted on the basis of baking techniques, barber techniques and drinking alcohol.
The delegate noted that the applicant’s claim at the hearing was that the militia groups threatened him for transgressing the “Islamic code of behaviour, namely drinking alcohol and applying ‘Western’ baking and barber techniques”. The delegate accepted that the applicant feared being targeted for his non-adherence to Islamic practices “including drinking alcohol in public space, Western baking and barber techniques as well as tattoos”.
Following the delegate’s decision, the applicant’s representative provided a written submission to the Authority dated 11 December 2016. Consistently with the claims advanced before the delegate, the applicant said he feared harm because we would be perceived as someone who drank alcohol and “breached Islamic rules in Iraq”. The applicant maintained that he drank publicly because he “believed in his freedom of choice”. Contrary to what was stated in his supporting statutory declaration, the applicant now claimed that he drank frequently in Iraq and in Australia.
As noted above, the Authority addressed the applicant’s claims in respect of alcohol at [17]-[22] and [32]-[33] of its reasons.[50] Apart from Ground 1, the applicant’s current grounds essentially rest on the proper characterisation of the Authority’s reasoning. That reasoning turns on the applicant’s forward-looking claim as to how we would behave in the future were he to have to return to Iraq: the applicant essentially contended that he would choose to drink in public not because he had any need to do so but rather as a political choice. The following matters should be noted.
[50] CB 146-147, 149
First, it is not in dispute that the Authority accepted at [18] and [32] that if the applicant drank alcohol in public then there was a real chance that the applicant would be harmed by militia groups. It follows that the Authority’s reasons rest on the question of whether there was a real chance that the applicant would choose, as a political act, to drink in public.
Secondly, the Authority focused, at [19], on the central proposition in the applicant’s claim: that he would make a choice to undertake a particular action (namely, drink in public). The Authority found that if the applicant wished to protest against society then he had the opportunity to do so in other ways and he would not face real chance of being seriously harmed if he chose to do so. This is said to have been consistent with the applicant’s own formulation: he had stated that drinking alcohol was merely one way (which logically did not preclude other ways) in which he could protest.
Thirdly, the Authority considered, at [20], whether the applicant was likely to drink in public. The applicant had claimed, contrary to his initial statement, that he drank regularly. In other words, the applicant claimed in effect that he would drink not as a choice but rather because he was unable to stop doing so. The Authority rejected this, noting that it found his original evidence more plausible. On that basis it rejected the applicant’s claim that he would drink publicly because he enjoyed drinking alcohol (i.e. not because he chose to do so purely as a political act).
It is important to note that the Authority was rejecting two differing possibilities. It found that the applicant’s assertion that he would make a choice was not something that resulted in harm for reasons of political opinion. That is said to have been so because he had other ways in which he could express his political opinion without any adverse consequence. Alternatively, if, as the applicant later asserted, he essentially had no choice but to drink alcohol (in private and in public) then the Authority did not accept that this was the case based on the evidence.
Fourthly, and relatedly, the Authority found that it would be reasonable for the applicant to modify his behaviour so as not to drink in public. Insofar as the applicant’s claim rested on a political choice then there were other ways in which to express the underlying political sentiment (dissatisfaction with the repressive state of Iraq and the influence of Sharia norms). To the extent that the desire to drink in public was something that the applicant had a desire to do, the Authority found that he did not have the desire.
Fifthly, the Authority addressed whether the applicant would come to significant harm if he were to drink in public. The statutory question to be addressed in this context involved an outcome not a characterisation: in other words, it did not involve any assessment of why the applicant was engaging in drinking in public but rather rested on the question of what was likely to happen if he did.

Consistently with this, [32] of the decision proceeds on the basis that the only evidence that the Authority had as to what would happen to the applicant was that he might be fined or beaten by members of the militia. The Authority concluded that neither of these things constituted significant harm for the purposes of ss.36(2A)(a), (b) or (c) of the Migration Act. In respect of s.36(2A) (d) and (e), the Authority reasoned at [33] that the applicant would not expose himself to that risk because he would not drink in public.
The applicant’s grounds allege errors in the manner in which the Authority reasoned. Resting as they do on the Authority having proceeded in a way that is legally unreasonable or irrational it bears repeating that the applicant bears a heavy onus.
Where fact-finding is illogical or irrational the enquiry is referable to whether the finding was open to the decision-maker, the threshold for showing illogicality is very high.[51] There is no single test, each case will turn on its own facts.[52]
[51] ARG15 v Minister for Immigration [2016] FCAFC 174 at [47]
[52] SZWCO v Minister for Immigration [2016] FCA 51 at [62]-[67]
The concept of legal unreasonableness should not be reduced to formulae or competing descriptions.[53] Reasonableness is informed by the subject matter, scope and purpose of the legislation in question.[54] The test for unreasonableness is necessarily stringent.[55] A supervisory court should remain mindful of the need not to exceed its role by undertaking a review of the merits or substituting its own view.[56] There is an area of “decisional freedom” where a decision-maker has a genuinely free hand.[57]
[53] per Allsop CJ in Minister for Immigration v Stretton (2016) 237 FCR 1 at [2]
[54] per Thawley J in BCQ16 v Minister for Immigration [2018] FCA 365 [71]; per Kiefel CJ in Minister for Immigration v SZVFW (2018) 264 CLR 541 at [11]-[13]; per Nettle and Gordon JJ at [88]-[90]
[55] per Kiefel CJ in SZVFW at [11]
[56] per Hayne, Kiefel and Bell JJ in Minister for Immigration v Li (2013) 249 CLR 332 at [66]; Minister for Immigration v Singh (2014) 231 FCR 437at [47]
[57] French CJ in Li at [30]
What the law permits and what it strikes down must be determined by the correct delimitation of the boundary between decisional freedom and legal unreasonableness.[58] Where minds might differ about the outcome or justification for an exercise of power or where it falls within the range of legally and factually justifiable outcomes, the exercise of power is not unreasonable.[59]
[58] per Steward J in Mowatt v Minister for Home Affairs(No 2) [2018] FCA 1157 at [24]
[59] per Wigney J in Stretton at [92]
The proper focus is on the area of decisional freedom and its boundaries as drawn by the nature and character of the decision and the terms of the relevant statute in the particular legal and factual setting.[60] The relevant task is one of characterisation.[61]
[60] per Allsop CJ in Stretton at [7]
[61] per Allsop CJ in Stretton at [13]
The courts will not lightly interfere with the exercise of a statutory discretion and should not enter the zone of discretion reserved for the decision-maker.[62] The implied standard of reasonableness applies to the justification for the way that the discretion is exercised as well as the result but a breach of that standard is not shown simply by virtue of a defect in reasoning.[63]
[62] per Griffiths J in Minister for Immigration v Haq [2019] FCAFC 7 at [37]
[63] per Colvin J in Haq, at [74] and generally at [72]-[97]
This reasoning applies with equal force to questions of irrationality or illogicality. The decision of the High Court in SZMDS remains good law. For a decision to be irrational it must be one which no reasonable decision-maker could have arrived at.[64]
[64] SZOOR v Minister for Immigration (2012) 202 FCR 1 at [3]-[4] and [22]-[23]; EHF17 v Minister for Immigration [2019] FCA 1681 at [83]-[84]
The Minister submits that there was, by this standard, nothing irrational about the Authority’s approach. The Authority had found at [10] that the applicant was not at future risk from the militia by reason of the drinking incident in February 2013. It treated the applicant’s claim as one predicated upon two things: a choice as to a manner of expressing political dissatisfaction; or, alternatively, as desire that was not simply reducible to a choice.
As noted above, the Authority’s assessment as to the first issue involved a rejection of the applicant’s implicit suggestion that he was impelled to express his political convictions in the manner in which he claimed. As a claim about political expression, the harm was referable to the alleged prevention of that political expression. The Minister submits that it was open to the Authority to conclude that the applicant could express that political discontent in other ways in which he would not come to harm. Relevantly, this meant that there was no risk of harm by reason of the applicant’s political opinion. There were other avenues that were available. The appeal by the applicant to the idea that this was really a claim about non-state actors is said to be a conceptual red herring: the applicant’s claim was about political protest (and the attendant imputed political opinion) rather than the mode in which he chose to protest or the group who would put him at risk. The applicant’s claim was about one choice, among others, that he said he was going to make in the future. The Authority concluded that this was not the only way in which he could express his political opinion and therefore, as a result, the applicant would not come to risk of harm because of any political opinion. Seen in this way, the Minister submits that it can hardly be said that this was an outcome that no reasonable decision-maker could have adopted based on the material advanced by the applicant.
Similar considerations apply to [20] of the Authority’s reasons. The Minister submits that properly read, the paragraph is not, as the applicant suggests, a rejection of the applicant’s claim that he chose to drink for a political reason. Rather, consistently with the conflicting evidence advanced by the applicant, the Authority rejected the distinct claim that he would drink frequently. It was entitled to reject this claim on the material before it. It followed that the Authority did not accept that the applicant was someone who was likely to go out and drink often and therefore he was not likely to go out and drink in public (or in private) because he had a desire to do so (as opposed to periodically and infrequently choosing to drink in order to make a political point).
The Minister contends, importantly, that, in any event, for the reasons outlined below, the Authority went on, properly, to find that the applicant could reasonably modify his behaviour in accordance with s.5J(3). This is said to have been an independent finding and therefore an independent basis on which the Authority’s reasons can be justified
The Minister submits that in respect of the related findings of the Authority concerning significant harm, a similar rationale operates. To the extent that the harm postulated by the applicant’s claims might arise the Authority is said to have correctly concluded that it could not be described as arbitrary deprivation of life, imposition of the death penalty or torture. This conclusion followed even if it were accepted that there was a real risk of such harm. It followed that the only issue that arose for consideration was whether the harm, if it occurred, came within the requirements of s.36(2A)(d) and (e). The consequence of the findings at [19] and [20] is said to have been that the Authority did not need to determine the question.
It is apparent that the Authority considered whether the applicant could modify his behaviour on the basis that it had found that if the applicant did drink in public then he would be at risk of harm.[65] Section 5J(3) was designed to address the question not only of what an applicant would do on return to his or her country but also what reasonable steps that person could objectively take to avoid persecution.[66]
[65] ESD17 v Minister for Immigration [2018] FCA 1716 at [24]-[25]
[66] ESD17 at [27]
The applicant argues that any modification that the applicant could have undertaken would conflict with a “characteristic” fundamental to his identity or conscience or would require the applicant to later modify his “political belief” or conceal his “true political beliefs” (based on s.5J(3)(a) and s.5J(3)(c)(iii)). The critical question is thus whether the modification in question would conflict with the applicant’s identity or alter his political belief. The applicant’s suggestions that they do are misconceived.
At issue here is the applicant’s professed choice, as a narrow political act, to drink in public (or, alternatively, his desire to drink because he feels like doing so).
The Authority found that the applicant would not drink in public. To the extent that he wished to do so and it rested on a mode of political expression, that was apparently treated as a political choice that the applicant need not undertake. If drinking in public was a method or mode by which he chose to express dissent, the applicant himself made clear that it was merely one way in which he could express his dissatisfaction with Iraqi society. That necessarily entailed that he both could adopt a different mode of seeking to express his political views and that such adoption would not alter the underlying political belief or conceal it. What cannot be altered or concealed is the belief itself. But, as the Authority’s conclusions make clear, the applicant was not prevented from expressing the belief itself; the modification was merely a way of expressing the belief and which had no necessary and immutable connection with that belief. In this regard, the Minister submits that hoary appeals to personal autonomy or Christians being thrown to lions do not readily assist the applicant.
Similarly, the idea that the act of drinking in public is “fundamental” to the applicant’s identity or conscience is said to overlook that on the applicant’s own case the act is one that is merely one among many that he could choose to adopt to express his dissatisfaction with Iraqi society. There is said to be no necessary connection between such an act and a statement of political protest; the applicant at no stage ever suggested that this was the sole way in which he could register dissent or that it was the immutable foundation of his dissent. A mode of political dissent does not inhere in a person’s identity or in his or her own liberty of conscience where that person accepts that there may be other modes of dissent and he or she can give voice to that dissent through those different ways of protest.

Resolution

Although there are three grounds of review, the grounds all deal with the same underlying issue: the Authority’s assessment of the applicant’s claims concerning drinking alcohol in Iraq. The three grounds involve different legal characterisations of alleged error, based on the Authority’s reasons at [17]-[22] and [32]-[33] of the decision. For these reasons, the grounds are dealt with together.
At [17]-[21] the Authority stated the following in relation to the applicant’s claim to fear harm from drinking alcohol as a political statement:
A further claim for protection is that the applicant fears persecution from Shia militia groups because came to the attention of the AAH and was beaten in 2013 due to drinking alcohol in public. I have accepted that this event occurred but am not satisfied that the applicant, were he return to Iraq, would be a target of the AAH or any similar militia due to his previous action.
In considering whether the applicant would be targeted in the future, should he return to Iraq, I note he stated in his statutory declaration of February 2016: "I'm not a drinker generally, but in Iraq I feel determined to drink because of the suppression: it is a way of protesting the lack of freedom. You are surrounded by hate, surrounded by fear in Iraq, drinking is one way of fighting it. I am young, I intend to live my life the way that I want, I will not abide by the rules of these hateful groups". I am satisfied that if the applicant were to publicly engage in antiIslamic actions in Iraq such as drinking alcohol in public, there is a real chance he would be harmed by Shia militia groups and possibly devout Muslim individuals. In terms of official repercussions for this action, the delegate put to the applicant at the PV interview that consumption of alcohol is presently not illegal in Iraq and the fine for being drunk in a public place was 10 Dinars (861 Dinars currently equals AU$1). I am satisfied that these contentions are correct.
The applicant states that drinking in public is his way of protesting against society in Iraq. Country information[67] however provides that freedom of political expression and political assembly are protected in the Constitution. Since 2011 demonstrations have been held across protesting widespread corruption and demanding greater civil and political rights. If the applicant were to engage in such political expression, such as protest, I find that he would not face a real chance of being seriously harmed.
The applicant advised in his statutory declaration that he does not generally drink alcohol in Australia and does not claim to be an alcoholic or have an innate need to consume alcohol. In the recent submission however, the applicant's representative claims that "the applicant maintain [sic] that he used to drink almost daily in Iraq, he also drinks alcohol in Australia very frequently". This claim is completely at odds with the applicant's earlier statement. On the basis that the matter was discussed at length in his PV interview, I prefer the earlier statement that he rarely drinks alcohol in Australia and is not a drinker generally. I do not accept that the applicant would publicly drink alcohol, were he to return to Iraq.
Section 5J of the Act provides that the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification. The applicant is not a drinker generally nor does he claim to be an alcoholic. I do not accept that to modify his conduct by not drinking in public (even as a political act) would conflict with a characteristic that is fundamental to his identity or conscience; to conceal an innate or immutable characteristic of himself; alter his political beliefs or conceal his true political beliefs, or any other modification contemplated by s.5J(3)(c). I am satisfied that he can take reasonable steps to avoid persecution by not drinking in public and instead finding a way to express his political beliefs in Iraq (such as through protest) in a way that is protected under the law, and not at odds with it - as consuming alcohol is. I am satisfied that to refrain from drinking in public in Iraq would therefore be a modification of his behaviour that is not proscribed in s.5J(3).
[67] Department of Foreign Affairs and Trade (DFAT), DFAT Country Report, Iraq, 13 February 2015, CISEC96CF1160, 3.73 and 3.74
The Authority addressed the same issues in relation to the complementary protection criterion at [32]-[33] as follows:
I have concluded that there is a real chance that the applicant would be persecuted if he publicly drinks alcohol in Iraq and that such persecution may take the form of a beating, such as occurred in February 2013. In considering whether such treatment amounts to significant harm as defined, I am not satisfied the applicant will be arbitrarily deprived of his life as a result or that the death penalty will be imposed. As noted earlier in these Reasons, the legal penalty for being drunk in a public place is a fine of 10 Dinars. In terms of whether a beating constitutes cruel or inhuman treatment or degrading treatment or punishment, these terms are defined at s.5 of the Act as including an act or omission which intentionally inflicts severe pain or suffering on a person, or pain or suffering which in the all the circumstances could be regarded as cruel or inhuman in nature, or an act or omission that causes extreme humiliation.
It could be argued that a beating constitutes cruel or inhuman treatment, however I am of the view that a finding on this point is not necessary. As discussed at paragraph 19 above, I do not accept that the applicant would engage in publicly drinking alcohol in Iraq. I therefore am not satisfied that there is a real risk that he will suffer significant harm. I accept he may engage in other forms of political expression, such as protest, but on the basis of the information before me about the prevalence of such political expression, I do not accept he would face any real risk of significant harm on this basis.
Although not pellucidly clear, in my view, the following reasoning can be divined from the Authority’s decision in relation to the Refugee Criterion. First, the Authority accepted the fact that the applicant had been beaten in 2013 due to drinking alcohol in public. Secondly, the Authority accepted that if the applicant did this again in Iraq, there is a real chance that he would be harmed by Shia militia groups and possibly devout Muslim individuals. Thirdly, the Authority found that the applicant would not be harmed by the Iraqi state for expressing his political opinions. Further, the Authority found that the applicant would not consume alcohol in Iraq as a matter of personal choice. Finally, the Authority reasoned that the applicant could be expected to modify his behaviour in relation to the public drinking of alcohol to avoid persecution, presumably by non-state actors such as Shia militia groups and devout Muslims.
I accept the Minister’s submission that the Authority’s reasoning in this regard was not irrational (nor unreasonable).
The difficulty with the approach taken by the Authority arises in respect of the complementary protection criterion to which s.5J of the Migration Act does not apply. The Authority sought to replicate its reasoning in relation to complementary protection from its analysis of the refugee claim. However, having accepted that being beaten may constitute cruel or inhuman treatment, and having previously accepted that the applicant faced a risk of harm from Shia militia groups and possibly devout Muslim individuals, the Authority needed to grapple with the question of whether the applicant was confronted by a real risk of significant harm. The Authority could not complete that consideration by simple reliance on its findings that the applicant would not be harmed by the Iraqi state. At [33] the Authority sought to rely on its reasoning at [19] but that was limited to the issue of harm at the hands of the Iraqi state. The Authority was only able to deal with the prospect of the applicant being harmed by non-state actors if he once again consumed alcohol in public as a political act by reference to the modification of his behaviour consistently with s.5J. The absence and unavailability of that reasoning in relation to complementary protection leaves a gap. That gap, in my view, leads to a conclusion that the Authority’s review in relation to complementary protection was incomplete. That goes to jurisdiction.
The applicant should receive the relief he seeks.

Conclusion

The applicant has succeeded in demonstrating that the decision of the Authority is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 12 August 2020