Ejs17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1015
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1015
File number(s): SYG 3128 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 9 November 2023 Catchwords: MIGRATION – Whether finding that applicant could reasonably refrain from drinking alcohol on return to Iraq involved misapplication of s 5J(3) of the Migration Act 1958 – where no claim that drinking alcohol was fundamental to applicant’s identity or part of religious belief or practice of faith – whether claim to fear pious people arose on materials Legislation: Migration Act 1958 (Cth) ss 5J, 36, 46A Cases cited: ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 346
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
DQU16 v Minister for Home Affairs (2021) 273 CLR 1
ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 945
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 1 May 2023 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Solicitor for the Respondents: Ms S Roberts of Mills Oakley ORDERS
SYG 3128 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJS17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely on the Further Amended Application filed on 5 May 2023.
2.The application filed on 10 October 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:
By an application filed on 10 October 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 September 2017, which affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Class XD-785 Temporary Protection visa (visa).
Background
The background to this matter is derived from the written submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
The applicant is a male citizen of Iraq who arrived in Australia as an unauthorised maritime arrival on 16 September 2012 (Court Book (CB) 162).
On or about 11 September 2013, the applicant lodged a Class XA-866 Permanent Protection visa (visa) application (CB 1 to 29), which was subsequently deemed to be invalid (CB 70) having been made prior to the lifting of the bar under s 46A of the Migration Act 1958 (Cth) (Act).
On 8 March 2016, after having been notified that he could now make an application (CB 70), the applicant applied for the visa with the assistance of his migration agent (CB 82 to 118). By a Statutory Declaration accompanying the visa application (CB 126 to 129), the applicant claimed that:
(a)he had been working as a painter in Najaf City in February 2012 when a man employed the applicant to paint his house (homeowner). The applicant claimed the homeowner belonged to a fundamentalist group, the Shiite Muqtada Sadr religious group, which was said to head the Mahdi Army. The applicant brought some food and a beer with him to the job site to have while he was painting the house. While working at the house the applicant also had some music playing on a speaker. The homeowner saw the applicant’s beer and became upset and agitated. The homeowner hit the applicant on his right eye with the speaker, hit him on the head with the beer and ejected the applicant from the house without paying him. The homeowner accused the applicant of being an “infidel”;
(b)after that incident, the applicant went into hiding and decided to leave Iraq because the group to which the homeowner belonged was one of three fundamentalist groups that controlled Najaf. The homeowner apparently went to the applicant’s home area looking for him and asking “where is this infidel painter?”. The homeowner was also allegedly telling people that he would arrest the applicant and make an example of him;
(c)despite being a Shia Muslim, the applicant was not himself religiously observant. He identified as “secular and tolerant”. The applicant claimed that fundamentalist groups did not tolerate secular people and would kill the applicant simply for drinking a beer. The applicant feared that, if he returned to Iraq, he would be persecuted because of his religious tolerance, non-observance of Islamic practices, because he “like[d] his beer and [had] always drunk beer since [he could] remember” and because he would be considered “an infidel”; and
(d)in 2004, the applicant’s brother (who was also a painter) was shot and killed by a crowd of religious extremists because he was non-observant and tolerant.
In support of his visa application, the applicant submitted two untranslated documents on coloured paper (pink (CB 122) and blue (CB 123)) together with photographs of two gravestones (CB 132 to 134). The applicant claimed the document printed on the blue paper was the original death certificate for his brother (N) who was killed in 2004, and the document printed on the pink paper was the original death certificate for his brother (K) who was killed in May 2016 (CB 165). No translations were provided for either of the alleged death certificate documents.
The applicant attended an interview with the delegate on 24 March 2017 at which the interpreter who was present provided a verbal translation of K’s death certificate (CB 166). At the visa interview, the delegate put to the applicant that bringing beer to a painting job of a person he did not know appeared to be “an extraordinary risk” given that the city of Najaf was well known as being a Shia holy city. The applicant responded that he had always done so and had not been expecting the homeowner to return to his home while the applicant was working there (CB 164). The applicant also raised a new claim that his brother K became involved in an argument with the homeowner in 2016 and as a result, fled to Sadr City in Baghdad and was killed sometime afterwards by unknown persons (CB 165).
On 4 May 2017, the delegate refused to grant the applicant the visa (CB 162 to 169).
Delegate’s decision
The delegate accepted that the applicant had taken beer to drink at the painting job, as well as his claims about the reaction of the homeowner when he returned home and saw the applicant’s beer (CB 164).
However, the delegate found there was no evidence to support the applicant’s claim that the homeowner was from the Mahdi Army, and the applicant’s only basis for concluding that he was from a militant group was the homeowner’s attire (CB 164). The delegate also found that if the homeowner was a member of the Mahdi Army, and wanted to intimidate or harm the applicant, he would have made use of his membership by bringing armed men to the applicant’s home (CB 165). The delegate found that it was implausible the homeowner would continue to harass the applicant’s family for four years after a single interaction involving alcohol (CB 165).
The delegate did not accept that K had been killed following an argument with the homeowner, and found the claim that he relocated to Sadr City (an area of Baghdad known to have a high level of insurgent activity) lacked plausibility. The delegate found this to be inconsistent with a person fleeing from a threat posed by a man with alleged Mahdi Army links (CB 165).
As the applicant did not claim to have received any threats from the homeowner in Najaf by phone or by letter, the delegate did not accept that the homeowner posed a danger to the applicant (CB 167). The delegate accepted that N was killed in Baghdad in 2004, but found the applicant had not presented any evidence of a link between N’s death and any threat he faced (CB 167).
On 17 May 2017, the matter was referred to the Authority for review (CB 175).
The Authority’s Decision
On 11 June 2017, the applicant’s migration agent made a submission to the Authority which repeated the applicant’s claims and referred to information from the website of the Iraqi Ministry of Foreign Affairs, relating to the finding by the delegate that country information indicated that death certificates given to family members were issued on green paper (CB 187 to 190).
The migration agent also provided a psychologist’s report dated 15 December 2016, which said the applicant demonstrated symptoms of depression and anxiety, and that he suffered from physical pain and stress following a car accident in Sydney on 1 December 2016 (CB 192 to 193).
On 19 September 2017, the Authority affirmed the delegate’s decision (CB 198).
To the extent that the migration agent’s submission restated the applicant’s claims and addressed the delegate’s decision, the Authority found this was not new information (CB 199 at [5] to [6]).
Referring to the audio recording of the visa interview, the Authority noted the applicant’s representative as saying that he would undertake some research on death certificates after the delegate had raised concerns about the veracity of the coloured documents which the applicant had submitted (CB 199 at [7]).
Noting that more than five weeks had elapsed between the interview and the delegate’s decision, the Authority was not satisfied that the information submitted from the Iraqi Foreign Ministry website could not have been provided earlier (CB 199 at [7]). It was also not satisfied that the new information from the Iraqi Foreign Ministry website was “credible personal information” or that there were exceptional circumstances to justify its consideration (CB 199 at [7]).
Based on its review of the audio recording of the visa interview, the Authority accepted that the other item of country information referred to in the submission to the Authority had been discussed during the delegate’s interview, and found that this was not new information (CB 199 at [8]).
In relation to the psychologist’s report, the Authority found that (CB 200 at [10]):
(a)it was not relevant to the applicant’s claims;
(b)pre-dated the delegate’s decision by more than four months and that it was not apparent why it could not have been provided prior to the delegate’s decision; and
(c)while it was credible personal information, it would not have affected the delegate’s consideration of the applicant’s claims.
(CB 200 at [10]).
Accordingly, the Authority was not satisfied there were exceptional circumstances to consider the psychologist’s report.
The Authority was satisfied there were exceptional circumstances to consider new information it obtained in the form of the 2017 DFAT report and information on current attitudes towards people who drank alcohol in Iraq (CB 200 at [11] to [12]). Referring to country information that indicated counterfeit documents were commonly, and cheaply, available in Iraq, the Authority placed little weight on the blue death certificate but was nevertheless prepared to accept that N may have died in violent circumstances in 2004, given the civil unrest and sectarian violence that occurred in Iraq in the aftermath of the fall of Saddam Hussein’s regime (CB 202 at [21]). Noting that N had died 13 years earlier, in what seemed to have been a random attack, and the applicant had not claimed that he, his mother, or his other siblings had suffered harm in the eight years after N’s death until his departure from Iraq, the Authority was satisfied that the chance of the applicant suffering harm as his brother had was “remote” (CB 202 at [21]).
The Authority accepted that:
(a)the applicant was verbally abused and physically assaulted after the homeowner caught him listening to music and drinking beer;
(b)the applicant did not receive payment for the work he had completed;
(c)the homeowner may have verbally abused the applicant’s family in the days and perhaps weeks after the incident; and
(d)the homeowner may have had some involvement with a Shia militia such as the Sadr Mahdi Army;
(see CB 38).
However, the Authority did not accept that the applicant had a clear understanding of who the homeowner was, or his particular role/status in the militia or party. It found the applicant’s evidence to be “vague and confused” and did not accept that the homeowner harassed the applicant’s family on a regular basis for four or more years after the incident (CB 38).
The Authority found it was implausible that the homeowner would have a continuing interest in the applicant as a result of the single, minor transgression of drinking beer while working at his house (CB 206 at [38]).
Relying on country information which indicated counterfeit documents were commonly and cheaply available in Iraq, the Authority placed little weight on the document which purported to be K’s death certificate. While accepting that K may have died in 2016 (although it had not accepted the homeowner retained an ongoing interest in the applicant years after the 2012 incident), the Authority did not accept there to be any link between the 2012 incident in Najaf and K’s death in Baghdad in 2016 (CB 206 to 207 at [39]).
Based on an assessment of the country information before it, the Authority did not accept that drinking alcohol in the south of Iraq was prohibited (CB 40). The Authority found it was unclear whether a local ban on drinking alcohol in Najaf in late 2009 still remained in place, or to what extent it had ever been enforced. The Authority found that more recent country information indicated that southern Iraqis could legally possess, and consume, alcohol. It found that despite the ban, the applicant claimed that he took beer to work “all the time” and was able to drink on a regular basis for more than two years without incident (CB 207 at [40]).
Although not expressly claimed by the applicant, the Authority was willing to accept he might drink beer if he returned to Iraq. However, given the fear the applicant claimed he felt as a result of the 2012 incident, it was satisfied that if the applicant purchased beer on return to Iraq, he would consume it in a “more discreet manner” (CB 207 at [41]). Further, because five years had passed since the 2012 incident and in the absence of any evidence of attacks targeting individual consumers of alcohol, the Authority was satisfied the chance was “remote” that the applicant would be killed or otherwise harmed by the homeowner, the Shiite Muqtada Sadr, the Dawa Group, the Islamic Supreme Council, or any other fundamentalist militia because of either the 2012 incident or any future consumption of alcohol. The Authority was also satisfied that it would be “a reasonable step for the applicant to refrain from drinking alcohol so as to avoid a real chance of persecution” and, in the circumstances of this particular case, that such restraint would not involve a kind of modification prohibited by s 5J(3) of the Act (CB 207 at [41]).
The Authority accepted that while some armed Shia groups had been accused of carrying out human rights abuses, it found that such violence was mainly directed towards Sunnis, rather than other Shias, or had occurred in the context of political rivalry between various militias or criminal activities (CB 207 at [42]). The Authority was not satisfied the applicant would face harm from any militia groups as a non-observant and religiously tolerant Shia Muslim because (other than the 2012 incident) the applicant had not complained to have experienced past harm on account of his non-observance and/or religious tolerance.
The applicant also had not claimed to have publicly spoken about his lack of piety or indicated that he intended to speak out in future. The Authority had regard to the applicant’s own evidence that he had lived in a tolerant local community, and referred to there being other secular families there. For these reasons, the Authority was not satisfied there was a real chance that the applicant would suffer harm based on his religious tolerance and secular tendencies (CB 207 at [42]).
Although not expressly claimed by the applicant, the Authority considered whether the applicant would face harm as a result of the security situation in Najaf. It gave detailed consideration to country information about the security situation in the southern governorates (at CB 208 at [44]) and accepted there continued to be sporadic attacks by ISIS and Sunni militia in southern Iraq but was not satisfied that the risk of harm to the applicant on the basis of the general security situation in Najaf was more than “remote”. As the applicant had not claimed to have been actively involved in either a militia or tribal group and had not claimed that his mother or brothers who remained in Najaf had suffered harm in the five years the applicant had been absent from the country, the Authority found it unnecessary to consider whether he had effective protection, or the reasonableness of relocation as it did not accept he faced a real chance of harm in Najaf (CB 208 at [45]). The Authority concluded that the applicant was not a refugee and did not meet the criterion in s 36(2)(a) of the Act (CB 209 at [46]).
Observing that “real risk” and “real chance” involved the same standard, the Authority relied on its anterior factual findings to conclude that it was not satisfied the applicant faced a real risk of significant harm under s 36(2)(aa) of the Act (CB 209 at [49] to [50]).
Proceedings before the Court
By an application to show cause filed with the Court on 10 October 2017, the applicant seeks review of the Authority’s decision. The applicant was unrepresented at the time the proceedings were commenced.
On 13 November 2017, a Registrar of the Court made procedural orders (by consent) and listed the matter for final hearing before the Judge of this Court to whom it was initially docketed. That fixture was subsequently vacated and the proceedings placed in the central migration docket where they remained until 8 December 2022, on which date they were docketed to me. On that date, I made further orders listing the matter for hearing. Leave was granted to the applicant to file and serve any amended application by 13 February 2023. He did not do so.
On 20 February 2023, a Notice of Address for Service was filed for the applicant which had the effect of appointing his current solicitors as his representatives. On 23 February 2023, a proposed amended application and written submissions were again filed for the applicant. For some reason, the same proposed amended application and written submissions were filed by the applicant on 1 April 2023. The need for any conclusion to be reached regarding the significance (if any) of the two proposed amended applications was alleviated because, by the time the applicant’s written submissions were due to be filed with the Court, his Counsel had been retained by the solicitors who represented him, and annexed to the written submissions filed for the applicant was a proposed Further Amended Application, which those written submissions addressed. The first respondent also addressed the grounds contained in the proposed Further Amended Application and did not oppose leave being granted to the applicant to rely on it. Due to the unavailability of the Court for the initially scheduled hearing fixture, the matter was ultimately heard on 1 May 2023, on which occasion the applicant was represented by his Counsel and the Minister was represented by a solicitor.
Leave was granted to the applicant to rely upon the proposed further amended application which was to be filed by 4:00pm on 3 May 2023. A review of the Court file in preparing these reasons for judgment reveals that said order was not complied with, and the Further Amended Application was not filed until 5 May 2023. There being no apparent prejudice to the first respondent by reason of the breach of the Court’s order, I will make an additional order to regularise the filing of that document by granting further leave up to, and including, 5 May 2023. It is not known why the applicant’s solicitors did not comply with what was, on any view, an extremely simple order to satisfy, however it should not happen again.
At hearing, Counsel for the applicant tendered the Court Book which was marked as Exhibit “1A”. Counsel for the applicant also indicated that ground 3 of the Further Amended Application would not be pressed. Accordingly, the grounds which remain for consideration in the Further Amended Application are as follows:
1.An issue which arose on the materials before the IAA was whether the applicant, who enjoys drinking beer faced a real chance of serious harm if required to return to Najaf arising from his interest in drinking beer. The IAA at [41] found that the applicant “would consume [beer] in a more discrete manner than previously if required to return to Iraq” and, on application of s 5J(3) of the Migration Act 1958 (Cth), “it would be a reasonable step for the applicant to refrain from drinking alcohol to avoid a real chance of persecution” and “this is not a kind of modification prohibited by s 5J(3)”. The IAA fell into jurisdictional error in making these findings.
2.An issue which arose on the materials before the IAA was whether the applicant, who enjoys drinking beer, faced a real chance of serious harm if required to return to Najaf arising from his interest in drinking beer. The IAA at [41] found that “the chance is remote that now or in the foreseeable future the applicant will be killed or otherwise harmed by…the Shiite Muqtada Sadr, the Dawa Group, the Islamic Supreme Court or some other fundamental militia because of … any future of drinking alcohol”. An issue which arose on the materials before the IAA was whether the applicant faced a real chance of serious harm from conservative or pious individuals who might observe him drinking beer. While the IAA considered whether the applicant faced a real chance of serious harm from the fundamentalist militia listed in [41], the IAA did not consider whether the applicant faced a real chance of serious harm from conservative or pious individuals. The IAA failed to address an integer of the applicant’s claims which arose on the materials. This was a jurisdictional error.
Ground 1
Applicant’s contentions
By this ground the applicant says that the Authority misapplied s 5J(3) of the Act by finding that it would be a reasonable step for the applicant to refrain from drinking alcohol so as to avoid persecution. This is said to give rise to an error of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395).
The applicant points to an array of material before the Authority which established that the city of Najaf is a Shia holy city, is religiously more conservative than other parts of Iraq, and specifically, more conservative than other parts of Southern Iraq (in which direction Najaf is located (relative at least to Baghdad)). This included:
(a)that the delegate put to the applicant during the protection visa interview that “bringing beer to a painting job of a person he did not know was an extraordinary risk to take, particularly in the city of Najaf which is well known as a Shia holy city” (CB 164);
(b)that the delegate also added “the applicant’s behaviour would appear to be foolhardy, a point acknowledged by his agent” (CB 164);
(c)a submission by the applicant’s migration agent to the Authority referred to a news report which stated in part (CB 189):
Najaf is considered a holy city for Shia Muslims because the first Shia imam ... is buried there. Because of the city’s special nature as a Shia holy city, the provincial council ruled unanimously that drinking, selling or transporting alcohol of any kind in whatever quantity was inappropriate since such activities are incompatible with Islam.
which report was highlighted by the migration agent as having being before the delegate (CB 189.3), which the Authority appears to have accepted (at [8]);
(d)the Authority found that drinking alcohol in the south of Iraq is not prohibited, with a qualification that in late 2009 a local ban on drinking alcohol was put in place in Najaf and may remain in place as at the time of the decision (CB 207 at [40]). The applicant says that this gives rise to a “clear distinction” between:
(i)the situation in the remainder of Southern Iraq, where drinking alcohol is permitted; and
(ii)the situation in the city of Najaf, where a local ban on drinking alcohol was put in place in late 2009 and which may still be in place at the time of the Authority’s decision in September 2017.
The applicant relies on the Authority’s reasons at [41] (CB 207) as containing three alternative findings in disposing of the applicant’s claims relating to his desire to drink beer in the future. Accordingly, it is necessary to set that paragraph out in full:
The delegate did not explore with the applicant during the TPV interview whether he has continued to drink alcohol in Australia or whether the applicant would drink alcohol if he returned to Iraq. Given that the applicant claimed during the TPV interview that he always took beer with him when he worked, I am willing to accept that he may drink beer if he returned to Iraq. However given the fear the applicant claimed he felt as a result of the 2012 assault by the home owner who caught him drinking beer I am satisfied that on return to Iraq if the applicant is able to purchase beer he would consume it in a more discreet manner than previously. Furthermore given that more than five years have elapsed since the applicant’s assault by the home owner and given that, apart from the applicant’s assertion, there is no evidence before me of attacks targeting individual consumers of alcohol, I am also satisfied that the chance is remote that now or in the foreseeable future the applicant will be killed or otherwise harmed by the home owner, the Shiite Muqtada Sadr, the Dawa Group, the Islamic Supreme Council or some other fundamentalist militia, because of either the 2012 incident or any future drinking of alcohol. I am also satisfied that it would be a reasonable step for the applicant to refrain from drinking alcohol so as to avoid a real chance of persecution, and that in the circumstances of this particular case, this is not a kind of modification prohibited by s.5J(3).
The three findings are construed by the applicant as follows:
(a)the Authority was satisfied that, on return to Iraq, the applicant would consume beer in a more discrete manner than he had previously;
(b)the chance was remote that, at the time of the decision (or in the foreseeable future), the applicant would be harmed by fundamentalist militia because of any future drinking of alcohol[1]; and
(c)the Authority found that “it would be a reasonable step for the applicant to refrain from drinking alcohol so as to avoid a real chance of persecution and... this is not a kind of modification prohibited by s 5J(3)”, noting the applicant’s claim that drinking alcohol was banned in Najaf for religious reasons.
[1] This finding is central to ground 2
The applicant says that to refrain from drinking alcohol in public, in the circumstances, would involve him concealing his true religious beliefs.
In respect of this ground the applicant says that the error was material because whether he would face a real chance of persecution if a conservative person in Najaf observed him drinking alcohol, was central to his claims. Applying a counterfactual, the applicant says that if the Authority had not erred in the manner alleged, it could realistically have resulted in a different decision being made, citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48], [49] and [50] per Bell, Gageler, Keane JJ.
First respondent’s contentions
The first respondent submits that, in substance, ground one seeks to recast the applicant’s claims for protection to include a basis not actually advanced by him before either the delegate or the Authority.
The first respondent says that the principle for which the decision in Appellant S395 stands is that a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that they would or could avoid persecution by sacrificing one of the protected attributes now captured in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The first respondent correctly observes that s 5J(3) provides that a person does not have a well-founded fear of persecution “if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country”, unless the modification, among other things, relates to “fundamental, innate or immutable characteristics”, citing DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [9] to [10] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ.
The first respondent argued because the consumption of alcohol is not, of itself, one of the protected attributes set out in s 5J(1)(a) that, for this ground to succeed, the Court would have to accept that the applicant’s “belief” that he could drink alcohol and that others should not prevent him from doing so was “a characteristic that is fundamental to [his] identity” as a “non-observant and tolerant” Shia Muslim, such that he should not be forced to renounce it, citing ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 346 per White, Bromwich and Burley JJ.
The first respondent says that the applicant did not present his claimed enjoyment of drinking beer as being a characteristic which was fundamental to his identity as required by s 5J(3)(a), or an innate or immutable characteristic for the purposes of s 5J(3)(b). It was also not claimed to be part of his religion or the practise of his faith. Rather, the height of the applicant’s claims is said to be:
I like my beer and I have always drunk beer since I can remember and it has never been a problem.
The Authority noted (CB 207 at [41]) that the delegate did not explore with the applicant whether he had continued to drink alcohol in Australia or whether he would do so if he returned to Iraq, but was nevertheless prepared to accept that he may drink beer if he returned to Iraq. The first respondent says that there is nothing to indicate that the applicant considered his desire to drink alcohol was fundamental to his identity.
Consideration
Section 5J(3) of the Act provides as follows:
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
Despite submissions made valiantly by the applicant’s Counsel, I accept the submissions of the first respondent that in the present case the applicant did not claim that either the drinking of alcohol, nor a “belief” that he should be entitled to do so, was a characteristic fundamental to his identity as either a non-observant and/or tolerant Shia Muslim. It was also not advanced by the applicant as being part of his true religious beliefs or practise of his faith.
In oral submissions, Counsel for the applicant referred to the statement of the applicant (CB 127) that (errors in original):
Although I am a Shia Muslim I do not observe the religious practices or holidays and I am very secular and tolerant. I believe that religion and god is a very personal matter and should not be forced onto others…
before submitting that part of the applicant’s religious beliefs was that he could drink alcohol, and that others could or should not prevent him from drinking alcohol, given his views that religion should not be forced onto others. Counsel went on to submit that:[2]
if the applicant, by acting more discretely is to refrain from drinking alcohol in private, that would involve him altering his true religious beliefs. And if he was to act more discretely by refraining from drinking alcohol in public, then he is then concealing his true religious beliefs.
[2] Transcript 1 May 2023 at T8.4 to 9
A lack of adherence to a particular religious view and/or practice does not, automatically, constitute a religious view and practice in and of itself. Rather, it is an absence of belief, doctrine, or practice. If the applicant’s consumption of alcohol was a behaviour by which he claimed to practise Islam (and not just a prohibition to which he was not prepared to adhere) that needed to be made clear by him.
There was no express claim made by the applicant that drinking alcohol was part of his religious beliefs, nor involved in the practise of his faith (see of s 5(J)(3)(c)(i)). The applicant also did not claim to seek protection on the basis that he was a member of a particular social group which, howsoever described, turned upon his consumption of alcohol: Cf ADL17 (supra) at [42] per White, Bromwich and Burley JJ. I am not satisfied that either of the aforementioned claims could also be said to arise squarely on the materials.
The Authority was aware of, and applied, s 5J(3) to the applicant’s claims. It is clear from the concluding sentence of [41] that the Authority considered, and was satisfied that, the applicant refraining from drinking alcohol would not constitute a modification that would contravene
s 5J(3) of the Act, subsumed within which is 5J(3)(c)(i).Overall, I am not persuaded that the findings at [41] of the Authority’s decision demonstrates error as alleged by ground 1.
Ground 2
Applicant’s contentions
Ground two alleges that the Authority failed to address a claim which was either expressly made, or arose sufficiently on the materials. Namely, that the applicant faced a real chance of serious harm from “conservative or pious individuals” in Najaf due to his interest in drinking beer. The first issue to determine is whether the claim was expressly or otherwise made and the second is whether, if so arising, the Authority addressed it. Of course, if the claim did not arise, the question goes no further.
The applicant says that by the statutory declaration which accompanied his visa application, he made claims about the incident in which the conservative homeowner attacked and later searched for him after he was found with a beer. The applicant says the Authority accepted most aspects of these claims, including that the homeowner “verbally abused the applicant’s family in the days and perhaps weeks after the incident” and “may have had some involvement with a Shia militia such as the Sadr Mahdi Army” (CB 206 at [38]).
The applicant appears to concede that the claim was not expressly made.[3] Rather, the applicant says that, it must be taken to have arisen on the materials because the Authority accepted that the applicant was threatened by a “conservative” individual in Najaf in 2012 who observed him drink alcohol, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] to [63] per Black CJ, French (as his Honour then Was) and Selway JJ. The applicant also pointed to the delegate having:
described the homeowner as “pious” (CB154.1 and 167.3), which is similar [4]
[3] Applicant’s written submissions filed 1 April 2023 at [30]
[4] Applicant’s written submissions filed 1 April 2023 at [25]
The applicant says that if he is required to return to Najaf, and given his claim that he likes and drinks beer, it is obvious that he fears the occurrence of a similar incident. The applicant says that a combination of those descriptors meant that the Authority ought to have separately assessed him as fearing harm on return from conservative or pious individuals.
First respondent’s contentions
The first respondent submitted that the Authority’s reference to the incident involving the “conservative” homeowner demonstrated that it considered this to be an isolated incident. Given that the Authority also did not accept that there was a real chance of a similar occurrence if the applicant continued to drink alcohol on his return to Najaf, the first respondent says that no broader claim arose to fear harm generally from conservative or pious individuals. The first respondent also relies on the following findings supporting the latter factor (CB 207 at [40] and [41]):
[40] despite the 2009 ban in Najaf the applicant, who said he took beer to work all the time, was able to drink on a regular basis for more than two years without incident until his encounter with the conservative homeowner suggesting the ban wasn’t rigorously enforced.
and;
[41] there is no evidence before me of attacks targeting individual consumers of alcohol…
The first respondent contends that, applying the principles outlined in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, in circumstances where the applicant was legally represented before the delegate and the Authority by the same solicitor who is representing him in these proceedings, and never expressed any fear of harm from “conservative” or “pious” people (other than militia and extremist groups), the Authority’s acceptance that on one occasion a “conservative” homeowner verbally abused and physically assaulted the applicant because he caught the applicant drinking beer in his house was not, of itself, sufficiently cogent to give rise to a claim the applicant faced a real chance of harm from “conservative” or “pious” people generally.
Consideration
In order to even reach the point at which the applicant’s contentions commence in support of this ground, the Court was in essence asked to impermissibly recast the materials which are said to give rise to the implied claim. As Gleeson CJ said in Appellant S395/2002 (supra) at 479 [1]:
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
A summary of the relevant principles relating to the duty to consider claims and issues arising from material by the Authority was outlined by the Full Court in AYY17 (supra) at [18] per Collier, McKerracher and Banks-Smith JJ where their Honours said:
(a)the Authority is only required to consider claims that clearly emerge from the materials;
(b)a finding that a claim clearly emerges on the material is not to be made lightly, and that it “might” be said to emerge from the materials is not enough;
(c)for a claim to clearly emerge from the materials, it must be based on “established facts”;
(d)a Court will be more willing to draw the line in favour of an unrepresented party; and
(e)understanding whether a claim has clearly emerged from the materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
Firstly, the applicant did not describe the homeowner as pious. The delegate did.
The first reference to piety is at CB 164 to 165 where the delegate found that the homeowner may have been pious and said (emphasis added):
The applicant states that after he left Iraq, he was told that the man was from the Mahdi Army. No evidence is provided in support of this claim aside from second hand information the applicant apparently derived from people he knows. Despite this, the applicant still does not know the real name of the man. I note that the applicant does not state that the man himself claimed to be from the Mahdi Army and the applicant’s only basis for concluding he was from a militant group was his attire. The applicant states that the applicant always came to his house alone and that no threat letters or phone calls were received. I find that if the man was indeed a member of the Mahdi Army and he intended to intimidate or harm the applicant, he would have made use of his membership by bringing armed men to the applicant’s home. I further note that the man only threatened the applicant with arrest. On this basis I find that although this man may have been a pious individual, there is no evidence to indicate he was a member of any group and his actions do not support a conclusion that he was a member of the Mahdi Army.
Next at CB 167 when commencing its assessment of the applicant’s claims by reference to the Refugee criterion, under a subheading “Dispute with fundamentalist man”, the delegate found (emphasis added):
The applicant took a job painting the house of a pious man in Najaf. The applicant was surprised by the man returning home and caught with beer and listening to music. The man reacted angrily and assaulted the applicant.
The man attended the house of the applicant after the incident asking about the whereabouts of the applicant. The applicant states that he has received no threats against him by phone or by letter. He also states that the applicant would come to his house/neighbourhood on his own. In his PV application the applicant states that the man threatened to have him arrested. I find that there is no evidence to indicate that the man who threatened the applicant is a member of a militia. I further find that the lack of additional threats from the man indicate that the man does not pose a danger to the applicant.
In essence, the delegate found that the height of the homeowner’s characteristics was that he was, himself, pious, but that even then he was not a member of a militia as claimed and in any event, posed no danger to the applicant.
The claim is not based on “established facts”[5], given that neither the delegate nor Authority was persuaded about the status of the homeowner (see [10] and [25] above). The applicant was represented throughout the delegate and Authority stages of the visa application and review and (other than a period at the commencement of these proceedings), continues to be represented by the same solicitors now.[6]
[5] See [65(c)] above
[6] See [65(d)] above
Having regard to the way an applicant’s claims were presented over time,[7] I agree with the submissions of the first respondent that there was no claim from the applicant as now contended for that he feared harm from conservative or pious individuals. The applicant did not claim to fear said harm in respect of the homeowner in question, other than for the reason of his alleged involvement with a militia. The mere fact that the delegate, with the militia element stripped away, referred to the homeowner as being pious does not give rise to an implied claim which the Authority was therefore required to consider: Cf ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 945 at [94].
[7] See [65(e)] above
It follows that the Authority did not fail to address an integer of the applicant’s claims which arose on the materials. Accordingly, ground 2 is not made out.
CONCLUSION
The applicant has not established jurisdictional error on the part of the Authority. Absent jurisdictional error, the decision is a privative clause decision and must be dismissed.
I will hear the parties as to costs.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 9 November 2023
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