EDY17 v Minister for Immigration
[2018] FCCA 3770
•26 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDY17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3770 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in application of real chance test – whether Authority erred in finding applicant would not in fact modify his conduct on return to Iraq – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473CA |
| Cases cited: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 Other materials: Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) |
| Applicant: | EDY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2896 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Services |
| Solicitors for the Respondents: | Mr A Moss, Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2896 of 2017
| EDY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of a decision of the Immigration Assessment Authority dated 30 August 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa on 16 May 2017.
The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival on 28 March 2013. He lodged a protection visa application on 10 January 2017. The claims upon which that application was based are summarised in [4] of the Authority’s reasons:
…
• He commenced work in 2007 running a mini-mart. Profits were very low and a friend suggested that he also sell alcohol. He subsequently did so in a clandestine fashion, to known customers only;
• At the end of 2011 he received a telephone call from a representative of the Mehdi Army stating that they were aware of his business and to cease selling alcohol or he would be killed. He continued to sell off the remaining stock on hand but shortly after the telephone call the shop was burnt down in the night;
• During 2011 he had been training to be a barber/hairdresser so early in 2012 he opened his own barber shop. He undertook western style haircuts including trimming beards with the razor. The Mehdi Army came to his shop on several occasions to ensure that he was no longer selling alcohol. He was warned not to continue undertaking western styles but charged more for these styles so did not stop;
• One of his customers was stopped by the Mehdi Army who questioned him as to where he had his hair cut. They then shaved the customer’s head. The following day the applicant found a threat letter in his barber shop with a bullet. He immediately took steps to leave Iraq.
On 16 May 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and that decision was referred to the Authority for review pursuant to s.473CA of the Migration Act 1958 (Cth).
On 30 August 2017 the Authority made a decision affirming the delegate’s decision.
The Authority accepted that the applicant had been self-employed; running a minimart from 2007 to 2011 and a barber shop from early 2012 to February 2013: [5]. It also accepted the claims concerning the consequences of the applicant selling alcohol from his minimart, including that he was warned off selling alcohol by the Mehdi Army, and when he failed to do so, his shop was burnt down: [6].
The Authority found that there were a number of inconsistencies in the applicant’s evidence as to the timing concerning the threats that he claimed to have been made to him in connection with his barber shop business, and in particular with his claim that he had cut or styled hair in a western fashion and trimmed beards. While the Authority accepted that, as the applicant had formerly sold alcohol, he may have been watched by members of the Mehdi Army or other militia group, and his new premises searched on a random basis, it did not accept that the applicant would then have taken up work that would also make him the target of militia groups. It accepted that from 2012 to March 2013 he worked as a barber but not that “he undertook styles or cuts that were unacceptable to conservative groups or that he received a letter from a militia group requiring him to stop his work or that stated that he would be killed or that they would determine his fate”: [10].
The Authority found, at [11], that the applicant would not drink alcohol on return to Iraq. At [14] it found that the chance of the applicant coming to harm as a result of his having formerly sold alcohol was remote given the significant passage of time, and it was not satisfied that there was any “real chance of harm from militia group” for that reason. At [15] it also considered that there would be no risk of harm from other persons for the same reason.
The Authority then turned to the question of the potential of harm to the applicant from hairdressing and set out its essential conclusions at [17], and given the nature of the issues in the application for review before me I will set out [17] in full:
17. Although the applicant has not worked as a barber/hairdresser since 2013, he is experienced in this area and has not indicated that he would not return to this profession, should he return to Iraq. In considering whether the applicant will be at risk of serious harm due to being a barber, the 2015 DFAT Country report on Iraq discusses targeting of specific groups of interest, including particular employment types. Targets on this basis seem to be limited to media professionals and journalists, who may be targeted by security forces as well as militia. The other country information before me is largely silent on this issue, other than to note that on the basis of Daesh’s extremist interpretation of shariah, individuals dressing differently would be at a higher risk of violence and discrimination in areas controlled by them. Karbala is not controlled by Daesh. In relation to targeting by the Mehdi Army or other Shia groups, the referred information includes two articles from 2016 relating to barbers in Baghdad, who openly undertake western styles without harm. Although this may be acceptable in Baghdad, I accept the applicant’s contentions that Karbala remains more conservative than the capital and western style haircuts and beards can still be considered un-Islamic and draw adverse attention. I have however found that the applicant had not been undertaking western style cuts or beard trims and he received no adverse attention due to his occupation. I conclude that there is not a real chance that the applicant would be targeted by security forces, by Shia militia or by Daesh/ISIS in Karbala for reason of his occupation as a barber/hairdresser.
(Footnotes omitted)
The Authority then considered other matters, such as whether the applicant might suffer harm for reason of being a Shia Muslim, and having sought asylum in Australia, and found that there was no real chance or real risk of those such harm arising.
On the basis of those conclusions, the Authority was not satisfied that the criteria for the grant of a protection visa were satisfied and affirmed the decision under review.
The applicant only presses the first ground in his amended application:
1. The Authority made a jurisdictional error by failing to apply the real chance test of serious harm and / or real risk of significant harm.
Particulars
a. The Authority found that, if the Applicant were to return to Iraq and were to engage in hairdressing in a conservative area like Karbala, he would not be harmed if he did not breach perceived Islamic norms and standards, but refrained from performing Western style hairdressing.
b. The Authority’s approach to the question of the Applicant facing harm in this respect involved an assumption of modified conduct by the Applicant.
c. The Authority failed to have regard to the fact that the Applicant, by modifying his conduct in this way, faced serious and / or significant harm. The Applicant, by having so to act in order to avoid harm, necessarily suffered harm in accordance with Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [82]-[83] per Kenny, Tracey and Griffiths JJ and authority cited there.
(Without alteration)
In his written submissions, and orally at the hearing today, the applicant raised two arguments, the first of which does not appear from the application. Both arguments focus upon [17] of the Authority’s reasons. The first argument is that the Authority erred by relying solely on the occurrence of a past event in determining what might happen in the future without evaluating anything further to determine the possibility of harm. That was said to be an error of the type identified by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. The second error is that the Authority erred by making a finding that the applicant would avoid certain conduct, or modify his conduct, without asking why such modification would occur.
On a proper reading of [17], the Authority’s reasons for its conclusion that there was not a real chance that the applicant would be targeted by security forces was that, while it was possible that the applicant would return to his profession of hairdressing, it would not be such as to include western style haircuts and beards. Although that reasoning is not expressly or clearly stated, it can be readily inferred from the Authority’s previous rejection of the applicant’s claim in the first place to have engaged in that activity.
The statement in the first sentence of [17], which is made in the conditional tense, namely that “he would not return to this profession”, is stated in the negative because the Authority notes that the applicant had not indicated that he would not return. The use of the conditional tense suggests a forward-looking test being applied by the Authority. It is in that context that the second-last sentence must be understood, namely, that the Authority had concluded that the applicant had not been undertaking western style cuts or beard trims, and had received no adverse attention due to his occupation. That conclusion carries with it, in my view, a finding that the applicant would not in the future be undertaking western style cuts or beard trims.
The difficulty with the argument raised by the applicant is that once the Authority had rejected the applicant’s claim to have engaged in the conduct of undertaking western style cuts or beard trims, there was nothing in the material to give rise to any logical inference that he might in the future turn to undertake that activity.
It is not the case, as appears to be submitted by the applicant, that in every case it is wrong for a decision-maker considering a future possibility of harm to base its conclusion solely on what had occurred in the past. Where, as was the case here, there was nothing else upon which to base its consideration, it is, in my view, proper for the Authority to base its conclusion solely on what the applicant had not done in the past. That is because the Authority is constrained by implication in its powers of review to act reasonably, meaning that it must act upon findings of fact which are based upon material before it and upon logical inferences drawn from other findings; it cannot simply engage in pure speculation. I say “pure” because, of course, any finding about the possibility of future events entails, itself, some level of speculation; my point is simply that the speculation required is not one that can be undertaken in the absence of any evidence whatsoever: see CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60].
For that reason the first argument said to arise in ground 1 is rejected. If leave were required to raise the argument, and I remain neutral about that fact, then I would refuse it because it would have insufficient merits.
The second argument is that the Authority erred by finding that the applicant would refrain from a particular conduct without assessing the reasons for which the applicant might refrain from that conduct, and in particular determining whether those reasons were unrelated to a fear of relevant harm.
There are a number of difficulties with this ground. Before dealing with those, it is necessary to set out briefly the passages in the authorities relied upon by the applicant. The first is Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111 at [82]-[83]:
82. Having regard to these findings by the IAA (which did not depend on any of the new information which was discarded by the IAA), in the light of S395 the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran. The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents. As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):
43. The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
83. Based on the IAA’s own findings, which flowed from the material before it, it had to consider whether the first respondent would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow. Its failure to address these matters involves jurisdictional error.
(Emphasis in original)
The second is a decision of the Full Court of the Federal Court in Minister for Immigration & Border Protection v SZSCA (2013) 222 FCR 192 at [61] per Robertson and Griffiths JJ in the majority:
61. We accept the respondent’s submission that the relevant principles arising out of S395 and NABD are:
(a) the Tribunal cannot require an asylum seeker to behave in a particular manner; but
(b) it is permissible for the Tribunal to conclude that an asylum seeker would not in fact behave in a particular manner upon his or her return.
I note that the decision of the Full Court of the Federal Court in SZSCA was appealed, and that the appeal to the High Court was unsuccessful. However, the reasons for which the appeal was unsuccessful was not that it upheld the reasoning of a majority in the Full Court, but to the contrary; that, in essence, the High Court found that the reliance upon Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 and the circumstances of that case were inapposite: see Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317 at [18] (SZSCA-High Court).
The error in the Tribunal’s decision in SZSCA-High Court was that the Tribunal had not considered whether or not it was reasonable for the visa applicant in that case to remain in Kabul and to undertake work that was not the work that he had been undertaking prior to leaving Afghanistan. Importantly, in that case, both the majority and Gageler J in the minority explained the principles of the decision in S395. At [17] the majority said:
17 The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed – whether the fear of persecution was well founded – had not been addressed.
Justice Gageler explained at [36]- [38] the import and the limitations of the decision in S395:
36 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs was concerned with the third element of the definition. The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:
“If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear
of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.”
(Emphasis in original.)
37 The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. The principle has no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution.
38 The S395 principle similarly has no application to a person who would or could be expected to hide or change behaviour that is not the manifestation of a Convention characteristic. That is so even if the person would or could be expected to change that behaviour in order to avoid a real chance of persecution by reason of the perpetrators of persecution wrongly imputing a Convention characteristic to the person. The price that the person would be paying to avoid persecution in such a case would not be the sacrifice of an attribute of his or her identity that is protected by the Convention. As Downes J succinctly put it in NALZ v Minister for Immigration and Multicultural and Indigenous Affairs, the principle has no application to a case which “does not contemplate changed behaviour to avoid persecution but to avoid creating a wrongful perception of membership of a protected class”.
(Footnotes omitted)
In my view, the reliance on SZSCA, S395 and BBS16 are misplaced. There was no finding in the Authority’s decision that the applicant could avoid harm by acting in a particular way. There was no finding that the applicant would modify his conduct in any way. This was more a case like the applicant in NABD v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142 where the Tribunal found that the visa applicant would act in a particular way and if he did so then he faced no real chance of persecution. Here, on the basis that the applicant had not in the past engaged in undertaking western style cuts or beard trims, the Authority found that he would not do so in the future. It was nothing to do with the fact that he might avoid persecution for that reason. Indeed, there was nothing to suggest that he had failed to do so in the past in order to avoid persecution.
It seems to me that the difficulty with the ground is that it only has any real substance on the assumption that at least part of the applicant’s claims concerning undertaking western style cuts or beard trims were accepted; however, they were not. Once the Authority rejected that claim none of the reasons of the Full Court or the High Court of Australia in BBS16 or SZSCA have any bearing on this case and nor does the decision in S395.
I would add that this case has another basis upon which it can be distinguished from those cases, with the exception perhaps of SZSCA. Importantly, in BBS16 the conduct in question was the expression of a religious belief. In S395 what was involved was conduct which was an expression of, or might if it was undertaken, be an expression of homosexuality. Those both constitute characteristics which are protected by the Convention[1].
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
In SZSCA, Gageler J explained precisely why a person in the circumstances of the visa applicant in that case might reasonably be expected to change his or her behaviour, and that is simply because the Convention only operates to protect the expression of certain characteristics. There was nothing before the Authority to suggest that the applicant undertook hairdressing, let alone hairdressing in a western style and beard trims, for any reason other than money: see for example [9] of the applicant’s statutory declaration dated 22 December 2016[2].
[2] Exhibit A, p.58.
Although there was some discussion at the hearing about the operation of sub-s.5J(3)(a) of the Act, I do not need to consider that. I accept the submission that sub-s.5J(3)(a) only comes into operation once there is a finding that there might be a real chance of persecution, and that there may be a way of taking reasonable steps to modify conduct so as to avoid that real chance of persecution. There were no such findings here and for that reason s.5J had no operation.
Conclusion
For those reasons, I am not satisfied that the applicant has established any jurisdictional error in the Authority’s decision, and the application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 18 December 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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