DXC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 892
Federal Circuit and Family Court of Australia
(DIVISION 2)
DXC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 892
File number(s): SYG 2728 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 28 October 2022 Catchwords: MIGRATION – Immigration Assessment Authority – whether Authority required to invite comment from the applicant pursuant to s 473DC of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) ss 5J, 65, 473DC, 473DD, 473DE Cases cited: ABT17 v Minister for Immigration (2020) 269 CLR 439
ADU18 v Minister for Home Affairs [2020] FCA 366
BCJ18 v Minister for Immigration [2022] FedCFamC2G 111
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CJE19 v Minister for Immigration [2020] FCA 1620
CMH16 v Minister for Immigration and Border Protection [2017] FCCA 2433
CRK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 267
CRP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
DQH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2890
EKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3022
FGC17 v Minister for Home Affairs [2019] FCA 559
Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 4 May 2022 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Firmstone & Associates Solicitor for the Respondents: Australian Government Solicitor Counsel for the Respondents: Ms K Hooper ORDERS
SYG 2728 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
28 OcTober 2022
THE COURT ORDERS THAT:
1.The application filed on 31 August 2017, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 7 August 2017 affirming a decision of a delegate of the Minister (delegate) refusing to grant the applicant a Safe Haven Enterprise Visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Cth) (Act) (CB 186).
background
The following statement of background facts and summary of the Authority’s decision are derived from the submissions of the first respondent, but are not in dispute.
The applicant is a male citizen of Iraq (CB 57). He arrived in Australia on 23 November 2012 (CB 88, 190 at [1]) and, on 3 May 2017, applied for a SHEV (CB 16). The applicant was represented in relation to his SHEV application.
The applicant claimed to fear harm because members of his family had been involved with the Ba’ath Party during the presidency of Saddam Hussein and because of his employment with the International Committee of the Red Cross (ICRC) in Najaf as a night security officer (CB 54 to 55). The applicant claimed that in 2012 the windows of his car (which was an American-made Chevrolet) were smeared with a red dye which looked like blood, and a threatening letter was placed on his car. After receiving that threat, he fled Iraq.
On 23 May 2017, the delegate refused the applicant’s SHEV application (CB 88). The delegate’s decision was referred for review by the Authority.
The Authority’s decision
On 16 June 2017, the applicant’s representative provided a written submission to the Authority (CB 180).
On 7 August 2017, the Authority made the decision referred to at [1] above. In summary, the Authority did not accept the applicant faced a real chance or real risk of serious or significant harm because several of his family members were senior Ba’ath Party figures, that he was a non-practising Shia Muslim, as a person who drinks alcohol, as a person who holds pro-Western or anti-government views, as a former employee of the ICRC, as a wealthy person, or because of sectarian or general violence (see CB 198 at [33]).
The Authority exercised its power under s 473DC of the Act to get new information, being an article identified in footnote 1 of its decision as “Associated Press (AP), “Iraq’s parliament passes law banning alcohol”, 24 October 2016…” (AP Report).
The Authority said the following at [8] (CB 191):
“[t]he applicant has claimed that he drank alcohol in Iraq but the delegate did not discuss the impact of this. As such, there was limited country information about this issue in the referred material. I consider there are exceptional circumstances to justify considering this information” (see s 473DD(a)).
The Authority recorded the oral evidence given by the applicant at the SHEV interview on 19 January 2017 (CB 191 at [10]), which the applicant attended together with his then representative. That oral evidence included the following (CB 192):
•His family were secular, they were considered apostate and infidels. They did not respect tradition and did not practise their faith. The applicant is not a practising Muslim, he has never been to mosque in Australia. It is very conservative in in Najaf; if he wanted to buy alcohol he had to get it in Baghdad and keep it in a bag. Once as he was coming out of a bar he was accosted by some men who demanded money or else they would tell the Mehdi Army;
•He first received threats when he was working for the ICRC. His role as a security guard included preventing armed men entering the premises. He was on two occasions threatened by people to whom he denied entry. His relations and neighbours considered him to be a spy. Because he worked for the ICRC he would be asked if he was a Christian. He invited workmates home for social occasions; they would drink alcohol, the women were not veiled. His neighbours questioned him about this…
The Authority set out its factual findings (CB 192 at [11] to [20]). Crucial to the ground of review in this matter are paragraphs [12] and [13] of the Authority’s reasons for decision (CB 192 to 193) such that is appropriate to set them out in full (footnote omitted):
12. The applicant has also stated that he is a non-practising Muslim and that he drank alcohol prior to departing Iraq, both at home and in licensed premises. While the applicant claims that his family were regarded as apostates and infidels, there is no detailed or cogent evidence to support this assertion and I do not accept that this is the case, although I accept that they did not observe the Muslim faith. I accept that the applicant also does not practise his faith. There is no information before me as to whether he still drinks alcohol or would do so, should he return to Iraq. In October 2016 the Iraqi parliament passed a bill banning the import, production or selling of alcoholic beverages (but, I note, not the consumption), therefore the ability of drinkers to obtain alcohol is likely to be greatly limited and would rely on black market purchases. Licenced premises can no longer exist under the law therefore the applicant could not frequent bars. While the applicant does not appear to have directly expressed such an intention I accept that, subject to being able to obtain alcohol in Iraq, he would continue to drink at home.
13. The applicant stated that he received verbal threats on two occasions while at work, from men to whom he had denied entry. The applicant stated that at the ICRC there was a list of people for the guards "to watch out for" and I accept that this was the case. I am satisfied that in the normal course of his work the applicant, as well as any other security guards employed by the ICRC, would have had occasion to deny entry to people or groups that may have caused harm to employees or damage to the premises. With regard to the two threat events, the applicant stated that one occurred in 2011 or 2012 and did not state when the other occurred. I accept that he received verbal threats on two occasions after denying entry to people or groups but I am not satisfied from the evidence that the applicant was identified or specifically targeted or that his work as a security guard caused him to be of interest to the Mehdi Army or other militia groups.
Having set out its factual findings, the Authority identified the applicable law and proceeded to consider whether the applicant satisfied the criteria for the grant of a SHEV having regard to those findings and by reference to country information which it cited (CB 195 from [21]). Relevantly, the Authority considered whether the applicant faced a real chance of serious harm arising from his being a non-practising Muslim and his future consumption of alcohol in Iraq (CB 196 at [24]) where it relevantly stated:
…In terms of the risk of harm to people that consume, as opposed to sell, alcohol, the country information does not indicate that they are targeted by militia groups, the authorities or other individuals, despite their actions contravening Islamic rules. I am not satisfied that there is a real chance of serious harm to the applicant, were he to consume alcohol in private.
Application to this Court
The applicant commenced these proceedings by an application to show cause filed with the Court on 31 August 2017, and has also been represented since the inception of the matter.
On 22 November 2017, a Registrar of the Court made procedural orders which, inter alia, granted leave to the applicant to file and serve any amended application by 25 January 2018. This did not occur.
On 26 June 2018 the applicant’s lawyer filed a Notice of Discontinuance. Despite the form containing the file number and pseudonym of the applicant in the current matter, other details within the document were patently not his.
On 19 November 2018 an Application in a Case and Affidavit in support were filed by the applicant’s lawyer seeking to have this matter reinstated on the basis that the Notice of Discontinuance had been filed in these proceedings error, instead of in another. On 4 February 2019 a Registrar of the Court made orders by consent reinstating the matter, following which it was placed in the central migration docket where it remained until it was brought into my docket on 28 February 2022.
As noted above, the applicant did not avail himself of the grant of leave in 2018 to amend his application. He now seeks leave to rely upon proposed amended application which was filed on 17 April 2022. Leave was not opposed by the first respondent subject to the possibility that, at the time of judgment, the first respondent may wish to be heard on the question of any costs thrown away. Accordingly at the hearing of the matter I granted leave to the applicant to rely upon the Amended Application and reserved the question of any costs thrown away occasioned by that grant.
By reference to the Amended Application, the sole ground of review advanced is as follows:
1.The Second Respondent (Authority) made a jurisdictional error by not inviting comment from the Applicant under s 473DC of the Migration Act 1958 (Cth) (Act).
a. Section 473DC of the Act conferred a discretion on the Authority to get new information, including in the form of comment from the Applicant;
b. Section 473DC of the Act was subject to legal unreasonableness, with the result that a failure by the Authority to get information under the provision may be judicially reviewable where there was no evident or intelligible justification for refraining from doing so: ABT17 v Minister for Immigration [2020] HCA 34;
c. The Authority considered the materials to raise a question of whether the Applicant would face harm on account of his consumption of alcohol;
d. The issue had not been considered by the delegate;
e. The Authority obtained country information relevant to that issue which post-dated the delegate’s decision;
f. The Authority found in light of the information that the Applicant could avoid harm by black market purchases and private consumption of alcohol;
g. The Applicant had connected his status as a non-practising Muslim and the consumption of alcohol raising the possibility that the modification of behaviour was contrary to s 5J(3) of the Act;
h. In all the circumstances, there was no basis for the Authority to refrain from inviting comment from the Applicant under s 473DC of the Act.
At hearing, each of the parties were represented by Counsel. The Court Book was received into evidence and marked Exhibit “1R”. An Affidavit of Chloe Ann Hillary affirmed on 2 May 2022 (Hillary Affidavit) was read for the first respondent, without objection. Annexure “CAH-3” to the Hillary Affidavit is the AP Report.
The parties’ contentions
The ground of review relies primarily on principles drawn from the decision of the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17) in respect of the discretion of the Authority to get new information, and the circumstances in which there may be a judicially reviewable failure to exercise the discretion in favour of doing so.
In particular the applicant emphasised the decision of ABT17 per Nettle J at [69] to [70] where it was held that:
(a)an applicant gives oral evidence to a delegate at interview on a particular issue; and
(b)the truth of that evidence is accepted by the delegate by reference to the applicant’s demeanour; and
(c)the delegate’s finding in that regard is not “glaringly improbable, contrary to compelling inferences or otherwise shown to be infected by error”;
then it is legally unreasonable for the Authority to go on to reject the truth of the applicant’s evidence without exercising the discretion to interview the applicant under s 473DC of the Act.
The applicant says that this reasoning has been applied to quash decisions of the Authority involving disbelief of applicants where an assessment of demeanour could have been available to the Authority through an interview, citing BCJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 111 (BCJ18) per Judge Ladhams at [49] to [52].
The applicant contends that ABT17 at [19] to [20] can be relied upon to ground a broader principle that a decision of the Authority may be judicially reviewed where the Authority has failed to exercise its discretion to get new information under s 473DC of the Act where there was no intelligible justification for omitting to do so, citing CJE19 v Minister for Immigration [2020] FCA 1620 per Beach J at [78].
Based on the aforementioned principles, the applicant contends that the following circumstances combine to result in the instant Authority having exceeded the bounds of legal unreasonableness by failing to invite the applicant to comment on the harm he faced by reason of his consumption of alcohol and says that:
(a)the question of that harm had not been considered by the delegate;
(b)the Authority considered the question of harm to arise from the materials before it based on matters of fact accepted by it, citing ADU18 v Minister for Home Affairs [2020] FCA 366 per Derrington J at [24];
(c)the Authority had obtained information relevant to the question of harm which post-dated the delegate’s decision. Accordingly, the applicant could not have elected to “comment upon” it;
(d)there had been attacks by militia groups upon alcohol shops and bars, suggesting the possibility of serious or significant harm to those who purchased or publicly consumed alcohol;
(e)the Authority found harm to be absent by reference to a modification of behaviour by the applicant, namely the black market purchase and private consumption of alcohol; and
(f)the applicant had raised the consumption of alcohol in tandem with his status as a non-practising Muslim, raising the possibility that the prohibitions would conflict with his identity or conceal an immutable characteristic as a non-observer of the Islamic faith, thereby attracting protection under s 5J(3) of the Act.
The applicant conceded that if the Court were not persuaded that the procedures adopted by the Authority were not legally unreasonable, then the question of materiality would not arise.
The first respondent contends that it was not legally unreasonable for the Authority to determine the review without exercising its discretionary power under s 473DC(3) of the Act to invite the applicant to give new information about his consumption of alcohol claim.
In essence the first respondent says that the effect of s 473DE(a) is that the Authority had no obligation to provide the applicant with the AP Report pursuant to s 473DC(1) because statutory scheme contemplates the use of new country information as the reason or part of the reason for affirming the decision of the delegate, without inviting a referred applicant to comment on that information, citing CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 per Thawley J at [47], [49] and [53].
In CCQ17, his Honour went on at [53] to find that:
… Part 7AA restricts the rules of natural justice. It specifically contemplates the use of country information as a reason for affirming a decision without affording an opportunity to the referred applicant to be heard – see: s 473DE, in particular s 473DE(1)(a)(ii) and s 473DE(3)(a). As noted at [47] above, that does not mean there is necessarily no role for s 473DC to play in a particular case. The statutory scheme expressly states that there is no duty to get new information: s 473DC(2).
The first respondent submits that the applicant had the opportunity to give oral evidence to the delegate at the SHEV interview about his consumption of alcohol in Iraq, which he in fact did. At that interview the applicant said he consumed alcohol with ICRC colleagues at a farm (Transcript (T) page 28-29), that he could not purchase alcohol in Najaf but could buy it in Baghdad but had to wrap it and hide it in a bag (T35.267). The applicant said there was an occasion when he was abused for drinking alcohol and a demand was made of him for money (T35.267). The applicant’s representative mentioned the applicant consuming alcohol in his oral submissions at (T44). The applicant gave evidence that he had put forward all of his claims at the SHEV interview (T51.302).
For the first respondent it was also contended that the present case is not one in which a new issue, dispositive of the Authority’s review, arose having not been addressed by the applicant at all at the SHEV interview: CfMinister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16) at [82]. The first respondent went on to say that the Authority did not completely lack any factual information about the applicant’s consumption of alcohol claim. Part 7AA of the Act clearly envisages that, in many cases, the Authority will review the delegate’s decision on the basis of the material that was before the delegate. That material is highly unlikely to include an entire array of potentially relevant or available information.
In arguing that the AP Report did not go to any new issue arising on the Authority’s review the first respondent said that the facts giving rise to the consumption of alcohol claim were raised by the applicant at the SHEV interview. The AP Report was said to “merely update” the information before the Authority which was of relevance to the existing claim.
The first respondent contends that the applicant had the opportunity to provide, and in fact provided, written submissions and ‘new information’ to the Authority (see s 473DC(1)), that he was represented throughout the Authority’s review and that if he had wanted somehow to supplement or amplify the claim regarding his consumption of alcohol he could have done so.
The first respondent says that the error alleged by the applicant goes against the body of case law regarding the parameters of what in the context of s 473DC is the Authority’s obligation to seek information is legally reasonable or otherwise, relying on FGC17 v Minister for Home Affairs [2019] FCA 559; DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; CMH16 v Minister for Immigration and Border Protection [2017] FCCA 2433 and DQH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2890.
Applicable principles
The discretion conferred on the Authority by s 473DC(3) is subject to the implied condition that it be exercised in accordance with principles of legal reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Plaintiff M174) at 227 [21] per Gageler, Keane, and Nettle JJ and at 245 [86] per Gordon J. In DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [35] Griffiths and Steward JJ summarised propositions established by the plurality’s judgment in Plaintiff M174 in relation to Part 7AA of the Act.
The content of the constraint of reasonableness in this legislative context is informed by the features of the scheme of review set out in Part 7AA of the Act: see BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5-6 [11], 19-20 [62]. Pursuant to s 473DA, Division 3 of Part 7AA with ss 473GA and 473GB “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. Section 473DB “sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”: see Plaintiff M174/2016 (supra) at 227 per Gageler, Keane and Nettle JJ at [22].
The Authority’s power in s 473DC(3) is to invite an applicant to provide ‘new information’ in the sense described in s 473DC(1) as referred to in ABT17 per Keifel CJ, Bell, Gageler and Keane JJ at [9] (citing Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706 at 710-711 [21]), namely knowledge of facts or circumstances relating to material or documentation of an evidentiary nature.
Section 473DE prescribes the Authority’s obligations in relation to putting to an applicant particulars of ‘new information’ and s 473DE(3)(a) has the effect that the Authority is not under an obligation to put to an applicant new information which is not specifically about them, but is just about a class of persons of which the referred applicant is a member.
Whether a failure by the Authority to exercise its discretion to invite a referred applicant to give the Authority new information is legally unreasonable will turn on the facts and circumstances of a specific case: see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 per Thawley J at [45] and BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 per O’Bryan J at [31]).
The test for legal unreasonableness is necessarily stringent: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 per Kiefel CJ at [11].
Consideration
The parties having each been represented by Counsel with extensive experience in this jurisdiction has assisted the Court in being able to distil these reasons for judgment.
In essence, the applicant says that the in the circumstances of this case, the Authority’s failure to exercise its discretion pursuant to s 473DC of the Act was legally unreasonable because there was no evident or intelligible justification for refraining from doing so, relying on ABT17.
In my view, and for the following reasons, the Authority proceeding to its decision without having exercised its discretion did not lack an evident and intelligible justification, was not legally unreasonable and in all the circumstances of the instant case does not give rise to the type of jurisdictional error identified in ABT17, or at all.
It is true that the delegate did not make findings about the claim of the applicant to have consumed consumption of alcohol claim. However the claim was sufficiently addressed at the SHEV interview such that it could not be said that the Authority did not have information about his particular circumstances such that it needed to revisit the issue with him: Cf CRY16 at [82] per Robertson, Murphy and Kerr JJ.
Simply because the delegate did not make findings does not render the issue as new. At the hearing before me, the applicant’s Counsel accepted that the claim before the Authority was not new in the sense that it arose from the evidence given orally by the applicant before the delegate and was not an entirely fresh claim by the applicant before the Authority.
In relation to the timeline and evolution of the issue between the delegate and Authority phases, and how the issue arose before each, I have had regard to the decision of ABT17.
The applicant relied on a decision of Judge Ladhams in BCJ18 (supra) where her Honour helpfully summarised other decisions of this Court which have turned upon ABT17 (at [49] to [51]), namely CRK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 267 (CRK18) per Judge Heffernan; EKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3022 per Judge Obradovic and CRP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3041 per Judge Driver.
In my view, the present case is not analogous to ABT17, or the decisions cited in the preceding paragraph which followed ABT17. Unlike the decisions referred to above at [46] above, the Authority did not reject the relevant claim (in this case to have consumed alcohol in the past) and in fact went on to assume (in the applicant’s favour) that he may do so in future. It was in the context of positively assuming that conduct in favour of the applicant that the Authority came to consider the AP Report. The AP Report was about a law of general application in Iraq.
There was no aspect of the Authority’s findings in relation to the applicant’s claim to have consumed alcohol which turned upon his demeanour at the SHEV interview such that it could be said to be analogous to ABT17. In find that the instant case is distinguishable from ABT17 insofar as there was also no ‘informational gap’ between the delegate and Authority nor a departure by the Authority from favourable credit findings made by the delegate on the basis of demeanour, or at all.
In terms of the Authority having obtained for itself new country information, being the AP Report, the information within in did not go to the ‘question of harm’ which might occur to the applicant. While entitled “IRAQ’S PARLIAMENT PASSES LAW BANNING ALCOHOL”, the content of the AP Report was less absolute than its heading suggested. It dealt with issues pertaining to of the importation, production and selling of alcoholic beverages. The applicant accepts that this characterisation as being correct.
As the Authority specifically noted at CB 193 at [12], the issue of consumption of alcohol was not a feature. Further, the AP Report included details of opposition to the new law, that the law may be struck down as being unconstitutional and noted that enforcement of it was not likely to be universal (for example by the statement “The Iraqi law was unlikely to be enforced in the largely autonomous Kurdish region, which is home to a sizeable Christian community.” As noted, the AP Report concerned legal prohibitions on import, production and sale of alcohol and that there is no evidence before me the applicant ever claimed to have engaged in any of these activities.
To the extent that the applicant asserts that he ought to have been entitled to comment on the AP Report, I refer to the principles set out at [28] above and agree with the first respondent’s submission that such an assertion does not accord with s 473DE(3)(a) and thus is at odds with an aspect of the statutory scheme, which forms part of the context in which the ground of review must be decided (see [27] above).
To the extent that by the ground of review (see particular (e) at [18] above) alleges that the Authority found that the application would have to modify his behaviour to avoid a risk of harm, I do not agree with this characterisation of the Authority’s reasons. Rather, the Authority found that the new law (being a law of general application) meant that premises selling alcohol were no longer legal. Accordingly, and to the extent that the Authority was prepared to assume that the applicant would consume alcohol, this would necessarily occur privately. The Authority’s findings did not require any modification of behaviour by the applicant to avoid an otherwise existing well-founded fear of persecution.
If, as is alluded to (by particular (f) at [18] above) the applicant contends that his consumption of alcohol is a feature or characteristic of his religious status as a non-practising Muslim, then I agree with the submissions of the first respondent that this did not raise the possibility that prohibitions, pursuant a general law would conflict with his identity or conceal an immutable characteristic as a non-observer of the Islamic faith: Cf ss 5J(3)(a) or (b) of the Act.
As discussed above at [49], the law did not prohibit consumption of alcohol. There is nothing before me to suggest that the applicant claimed (or would have claimed) that drinking alcohol publicly/in licenced premises was a characteristic fundamental to his identity or conscience, or an “innate or immutable characteristic”.
The Authority considered, and made determinations of its own, about the claim which had been only briefly raised before the delegate, with the benefit of recent country information. Those circumstances, in and of themselves did nothing to require an exercise of the s 473DC discretion: see DGZ16 (supra) at [70] to [72] and [74] to [76] and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] per French CJ and [76] per Hayne, Kiefel and Bell JJ. Even if there had been a failure to exercise the discretion that would not necessarily have the characteristics of being legally unreasonable within the full context of the matter: see CCQ17 (supra) per Thawley J at [53].
For the foregoing reasons I am also not satisfied that the Authority’s proceeding to decision without exercising its s 473DC discretion was legally unreasonable, in the sense of being arbitrary, capricious or devoid of an evident and intelligible justification.
Accordingly, there is no error on the part of the Authority as alleged, or at all. That being so, as the applicant acknowledged (see [25] above) it is not necessary to consider the issue of materiality. The decision being absence a jurisdictional error it is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 October 2022
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