Esa19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 428

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 428

File number(s):

SYG 3097 of 2019

Judgment of:

JUDGE DRIVER

Date of judgment:

25 March 2021

Catchwords:

MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority failed to properly consider a claim or unreasonably failed to invite the applicant to give new information considered – no jurisdictional error.  

Legislation:

Migration Act 1958 (Cth), ss 5H, 36, 473DA, 473DB, 473DC

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

DPI17 v Minister for Home Affairs [2019] FCAFC 43

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437

SZSFK v Minister for Immigration & Anor [2013] FCCA 7

Number of paragraphs:

43

Date of hearing:

8 March 2021

Place:

Sydney

Counsel for the Applicant:

Mr R Chia

Solicitors for the Respondents:

Mr J Pattinson of Mills Oakley

ORDERS

SYG 3097 of 2019

BETWEEN:

ESA19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	25 MARCH 2021

THE COURT ORDERS THAT:

1.The further amended application filed on 25 September 2020 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 24 October 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Iran born in September 1988.[1] He first arrived in Australia on 18 May 2013 as an unauthorised maritime arrival.[2]  On 1 April 2017, he applied for the visa.[3]

   [1] Court Book (CB) 45

   [2] CB 173

   [3] CB 28-68

4. In support of his application for the visa, the applicant raised, among other things, the following matters:[4]

   (a)the applicant was an animal rights activist in Iran and was against killing animals for any reason. His first confrontation with others over animal rights involved the applicant publicly condemning the killing of lambs during Moharam. The applicant’s activities were known inside his school and on one occasion he was assaulted by his Islamic theology teacher. Over time, the applicant became known as a person who believes in and supports animal rights;[5]

   (b)in 2010, the applicant and his friend began publishing materials on the benefits of animals and why they should be cared for. The applicant was actively involved on Facebook and other social media sources in supporting animal rights. In mid-2012, the applicant and his friend were invited to speak at a workshop on animal rights. However, the workshop was cancelled by the Basij;[6]

   (c)one day, people in police uniform came to the applicant’s house and took the applicant and his dog. He was detained for three days and questioned about money he had raised.[7] The applicant’s dog was injected with acid and killed;[8] and

   (d)the applicant was born a Shia Muslim and grew up in a religious family. He has converted to Christianity and is, in Australia, evangelising Christianity.[9] The applicant was a professional soccer player but was unable to join a team because of his disinterest in Islam.[10]

   [4] CB 29; 69-71; 123-128

   [5] CB 69

   [6] CB 70

   [7] CB 70

   [8] CB 71

   [9] CB 123

   [10] CB 125

5. On 17 May 2019, the applicant was invited to an interview with the Minister’s Department and on 29 May 2019 his then migration agent provided the Minister’s Department with a further statutory declaration by the applicant dated 27 May 2019,[11] in which the applicant provided an account of his conversion to Christianity in Australia as well as his past disillusionment with the Islamic theocracy in Iran.  The applicant claimed that if returned to Iran he would also be harmed due to his conversion to Christianity, as a perceived apostate and as a failed asylum seeker.

   [11] CB 156-161

6. On 31 May 2019, the applicant attended an interview with the delegate with the assistance of an interpreter in the Persian (Farsi) and English languages.

7. On 7 June 2019, the applicant’s then representative provide post-interview submissions and a further statutory declaration dated 7 June 2019 to the department.[12]

   [12] CB 162

8. On 4 September 2019, the delegate refused to grant the applicant a Safe Haven Enterprise visa (SHEV).[13]  The delegate noted that the applicant had not claimed in his initial entry interview that he was an animal activist, that he had eaten "halal prepared meals" containing meat whilst in detention and concluded that his claims to be an animal rights activist were contrived.  The delegate was also not satisfied that the applicant had genuinely converted to Christianity and found that he was baptised and undertook Christian activities in Australia for the purpose of enhancing his claims for protection.

   [13] CB 173

9. On 9 September 2019, the delegate’s decision was referred to the Authority for review.[14]  As noted above, on 24 October 2019, the Authority affirmed the delegate’s decision.[15]

   [14] CB 189-191

   [15] CB 219-238

   The Authority’s decision

10. The Authority had regard to the referred material provided by the Secretary and explained why it took into account new information provided by the applicant.[16]

    [16] CB 220 [2]-[5]

11. The Authority did not accept the applicant’s claim to be an animal rights activist and considered his claims were likely to be an exaggeration and embellishment of his past experiences in Iran.[17] In reaching this view, the Authority observed that the applicant had failed to raise being an animal rights activist during his entry interview.[18] It also observed that the applicant had provided no corroborative evidence of his animal rights activism in Iran or in Australia, despite claiming to have undertaken such activities for over ten years,.[19] The Authority accepted that the applicant may have been arrested and briefly detained in relation to his dog. However, it did not accept that the applicant had been harmed, or that he was subjected to monitoring, threats or that he feared he would be killed.[20]  The Authority also considered that the applicant would not have been readily released from detention if the applicant had the profile he claimed.[21] The Authority thus accepted that the applicant loves animals and was a dog owner and holds low level views about the treatment of animals and animal rights, but was not satisfied that the applicant has been politically or socially active in relation to animals, or has faced threats, harm or interferences in connection with such activities. It accepted that he may again wish to own animals on return to Iran.[22]

    [17] CB 224 [20]

    [18] CB 223-224 [13]-[16]

    [19] CB 224 [18]-[19]

    [20] CB 224 [21]

    [21] CB 224 [22]

    [22] CB 225 [23]

12. The Authority accepted that the applicant was baptised in April 2017, that he attends Sunday church services, that he has friends from the church and that other Iranians attend. However, the Authority did not accept that the applicant evangelises, attends Bible class, or shares his faith in any way.[23] The applicant’s limited understanding of Christianity, his superficial and limited documentary and oral evidence of his participation in the church, his superficial social media evidence, the lack of other supporting evidence, and the timing of his baptism (immediately after his visa application), led the Authority to find that his engagement with Hillsong Church and his conversion were not genuine, and were designed to suggest that he has a profile that would give rise to a risk of harm on return.[24] The Authority was not satisfied that the applicant would identify as a Christian, practise as a Christian, or evangelise to others about Christianity, on return to Iran.[25] The Authority also did not accept that the applicant has hatred for or has rejected Islam, or that he has been outspoken or critical of the Iranian government and Islam.[26]

    [23] CB 228 [41]

    [24] CB 228 [42]-[43]

    [25] CB 228 [43]

    [26] CB 229 [47]

13. The Authority was not satisfied that the applicant would be politically or socially active on return to Iran, in connection with animal rights or anything else. It did not accept that there was a real chance of harm for this reason.[27]

    [27] CB 229-230 [50]

14. The Authority considered that the likelihood that the applicant would be identified or targeted on account of his social media activity (in relation to Christianity) was remote. It was further not satisfied that the applicant has a political profile and considered that he would not engage in proselytising, religious or political activities on return.[28]  The Authority was not satisfied that the Applicant faced a real chance of harm in connection with his Christian profile.[29] The Authority was further satisfied that the applicant would, on return to Iran, be a limited or non-practising Muslim. However, on the available country information, the Authority was not satisfied that he faced a real chance of harm for this reason.[30]

    [28] CB 231 [58]

    [29] CB 231 [59]

    [30] CB 232 [63]

15. The Authority accepted that the Iranian authorities may determine that he has sought asylum in Australia.[31] It noted that he departed Iran lawfully and was satisfied that he did not have an adverse profile that would result in him being of any interest to the authorities on return.[32] The Authority was not satisfied that the applicant faced a real chance of harm on return from Australia on account of being a failed asylum seeker.[33] The Authority also accepted that the applicant may seek to obtain a dog or other pet in the future and, because of restrictions in Iran, the applicant may be denied the opportunity or face a penalty such as removal of the dog. The Authority accepted that such restrictions would be challenging for the applicant but did not accept that they would give rise to persecution. The Authority was not satisfied that the applicant faced a chance of serious harm for this reason.[34]

    [31] CB 232 [65]

    [32] CB 232-233 [68]-[69]

    [33] CB 233 [70]

    [34] CB 233 [71]

16. The Authority thus found that the applicant was not a refugee, as defined by s 5H(1) of the Migration Act 1958 (Cth) (Migration Act), and hence found that the applicant did not meet s 36(2)(a) of the Migration Act.[35] The Authority also found, having regard to the same information and analysis it had earlier discussed, that the applicant did not face a real risk of significant harm. The Authority was thus not satisfied that the applicant met s 36(2)(aa) of the Migration Act.[36]

    [35] CB 233 [72]

    [36] CB 234 [75]

    THE CURRENT PROCEEDINGS

17. These proceedings began with a show cause application filed on 27 November 2019.  The applicant now relies upon a further amended application filed on 25 September 2020.  There are two grounds in that application as amended:

    1. The second respondent (Authority) failed to ask itself whether the risk of penalty to the applicant for owning a pet in the future amounted to a real risk of significant harm.

    2. Further or in the alternative, the Authority’s failure to invite the applicant to give new information, or failure to considering doing so, was legally unreasonable.

18. In addition to the court book lodged on 31 January 2020, I have before me as evidence the affidavit of Lecia Marie Stark made on 18 September 2020, to which is annexed a transcript of the interview by the Minister’s delegate at Perth on 31 May 2019.

19. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 8 March 2021.  I have been assisted by those submissions.

    CONSIDERATION

    Applicant’s contentions

    Ground 1 – future pet ownership

20. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[37] at [47] the Full Federal Court held that the then Refugee Review Tribunal had failed to consider a claim made by the visa applicant, and therefore committed jurisdictional error:

    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

    [37] (2003) 236 FCR 593

21. In Khan v Minister for Immigration and Ethnic Affairs[38] at [25], his Honour Gummow J also stated that “considering” a claim requires “proper, genuine and realistic consideration” being given to the claim:

    [W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...

    [38] (1987) 14 ALD 291

22. The Full Federal Court has more recently stated in Carrascalao v Minister for Immigration and Border Protection[39] at [45] per the Court (Griffiths, White and Bromwich JJ):

    … when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria … This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” …

    [39] [2017] FCAFC 107

23. In the present case, the Authority did not accept that the applicant was an animal activist, however it accepted at [71] that the applicant had been detained for illegally having a pet dog in the past and that he might in the future seek to have another pet dog and would either be denied that opportunity or the dog may again be confiscated:

    There is little or no information before me about the restrictions on pet ownership in Iran, but I accept from the applicant’s evidence that dog ownership is restricted and he faced official penalty in the past. While not claimed specifically, I am prepared to accept the applicant may seek to obtain a dog or other pet in the future, and that he may either be denied that opportunity because of these restrictions or at risk of penalty (e.g. having the dog taken away by officials and/or destroyed). I accept those official restrictions would be challenging for the applicant given his love of animals, but I am not satisfied on the information before me that any such restrictions would give rise to persecution in any relevant sense. No contention has been put before me that such restrictions or laws would involve systematic and discriminatory conduct (or would be discriminatory on their terms, applied in a discriminatory manner, or are selectively enforced) or would involve serious harm in the sense contemplated by the Act. On the very limited evidence before me, I am not satisfied there is a chance of him facing serious harm for these reasons, or that it would amount to persecution as defined in the legislation.

24. The Authority therefore found that being prevented from owning a dog or having a dog confiscated or destroyed did not amount to serious harm; the applicant contends, however, that it did not consider whether, if the applicant sought to have another pet dog in the future, he might again be arrested, interrogated or otherwise punished or threatened for breach of the law, which punishment could amount to serious harm.  In doing so, the Authority in the applicant’s submission failed to consider or to give proper, genuine and realistic consideration to a residual claim that the applicant could face serious harm as a result of his future conduct.

    Ground 2 – unreasonable failure to invite the applicant to give new information

25. In Minister for Immigration and Border Protection v CRY16,[40] the Full Federal Court stated that the legislature is to be taken to have intended that the Authority’s statutory power in s 473DC(3) of the Migration Act will be exercised reasonably and, if there are factual issues the appellant had not been given the opportunity to address before the delegate, the failure to invite an appellant to give new information on that issue may constitute jurisdictional error. In that case, the Authority based its decision on the availability of internal relocation in circumstances where the delegate’s decision and the protection visa interview had not addressed that issue at [82]:

    The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

    [40] (2017) 253 FCR 475

26. The High Court subsequently adopted this principle in Plaintiff M174/2016 v Minister for Immigration and Border Protection[41] with the plurality noting at [21] that the various powers conferred upon the Authority by Part 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li[42] and at [26] that, although there is no general requirement for the Authority to give to the applicant material provided to the Authority by the Secretary (s 473DA(2)), there is nothing in Part 7AA to preclude the Authority from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the Authority in particular circumstances in order to exercise that power reasonably.

    [41] (2018) 353 ALR 600

    [42] (2013) 249 CLR 332

1. In DPI17 v Minister for Home Affairs[43] (Griffiths, Mortimer and Steward JJ), the Full Federal Court noted that there is no general principle that the Authority is never obliged to provide the referred applicant with an opportunity to respond if the Authority departs from the delegate’s course of reasoning and found that the failure of the Authority to consider inviting the appellant to comment upon inconsistencies in the referred applicants’ evidence, not relied upon by the delegate, was “plainly unjust” and therefore legally unreasonable.  The Full Federal Court specifically rejected the Minister’s submission based on DGZ16 v Minister for Immigration and Border Protection[44] that the Authority is never required to give a referred applicant the opportunity to comment before it takes a different view regarding the material that was before the delegate.

   [43] [2019] FCAFC 43

   [44] (2018) 258 FCR 551

2. In the present case, the delegate had put to the applicant at the SHEV interview and ultimately found it to be incongruous that the applicant could say he was an animal rights activist and say that he eats meat.  However the Authority at [17] did not see any such inconsistency but, instead, found at [44] that the fact he ate halal meat, that he had requested a halal meal plan and was identified in a “detention plan from June 2013 … as a Muslim” were matters supporting the finding that he had not faced past issues due to non-observance and rejection of Islam.  The applicant submits that these were matters that stood apart from the issue of his conversion to Christianity in Australia and in respect of which the applicant could have addressed had be had the opportunity to do so.  The Authority knew what had been said at the SHEV interview and that he had not had the opportunity to provide relevant information on these issues.  In the applicant’s submission it was not legally reasonable for the Authority to have not invited, or not considered inviting, him to give new information on these matters.

3. In his oral submissions, the applicant’s counsel also submitted that the Authority erred in making a “rolled up” finding as to complementary protection at [75] of its reasons.[45]   

   [45] CB 234

   Resolution

4. I prefer and adopt the Minister’s submissions in relation to the grounds of review raised. 

   Ground 1

5. This ground alleges that the Authority failed to consider, or failed to give “proper, genuine and realistic consideration”, to a “residual claim” that the applicant might be arrested, interrogated or otherwise punished or threatened for breaching Iranian laws in relation to having a having a pet dog.

6. The Authority accepted that the applicant may seek to have a pet dog (or other pet animal) in Iran in the future.[46]  Importantly, however, and as the Authority observed at [71] of its reasons, the applicant did not contend that Iranian laws and restrictions about pet ownership would result in him suffering serious harm or involved systematic and discriminatory conduct. Indeed, he did not expressly claim that he would, in the future, be arrested, detained or punished (being possibilities now raised by this Ground) simply because he might own a dog (his claim to have been arrested in the past, in relation to his dog ownership, was connected to his claimed profile as a known animal rights activist and his money raising activities, claims which were not accepted by the Authority). The Authority also observed (also at [71]) that there was “little or no information” before it as to the restrictions on pet ownership in Iran (and hence there was “little or no information”, among other things, as to penalties for such pet ownership).

   [46] CB 225 [23]; 233 [71]

7. It was for the applicant to advance his evidence and arguments in support of his claims, and for the Authority to decide if those claims were made out.[47] There is no obligation on the Authority to consider claims that are not made.[48]  That is especially so in a case such as this where the applicant has been represented throughout.

   [47] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Abebe v Commonwealth (1999) 197 CLR 510 at [187]

   [48] NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [62]

8. The Authority’s reasons must be fairly read and not in an unduly critical manner.[49] They must also be read in light of what the applicant actually claimed, and the evidence advanced by him, as to which, see above. It is plain that, at [71] of its reasons, the Authority did turn its mind to what might happen to the applicant if he obtained a dog (or other pet) on return to Iran. On a fair reading of its reasons, the Authority accepted that the applicant may attempt to obtain a dog (or other pet) and found that, if he did so attempt, the consequences would be a denial of the opportunity to do so or the imposition of a penalty in the form of the dog being taken away and/or being destroyed. The Authority acknowledged that this might be challenging. Importantly, however, the Authority squarely stated that it was “not satisfied” that any restrictions on pet ownership would “give rise to persecution in any relevant sense” and was “not satisfied” that there was a chance of “serious harm” in relation to dog ownership.

   [49] BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 at [38]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

9. The Authority thus identified what it considered would be the potential consequences of pet ownership, and also squarely found that these consequences did not amount to “persecution” or that there was otherwise a real chance or real risk of serious or significant harm from dog or pet ownership. These findings are sufficiently broad to deal with, and reject, there being any protection obligations arising out of such future ownership. There was, in the circumstances, no need for the Authority to expressly refer to the matters identified in [19] of the applicant’s submissions (eg. risk of arrest, interrogation), as those matters are subsumed in, and rejected by, the Authority’s more general findings.[50]

   [50] Applicant WAEE at [46]-[47]

10. This is confirmed by [21] of the Authority’s reasons.[51] There, the Authority observed that the Applicant “may” have been “arrested and briefly detained” in the past, but “[did] not consider there was any basis for the authorities to detain, interrogate or harm him, or accuse him of acting against the national interest, or that he faced other charges as he claims, on the basis of dog ownership alone” (emphasis added). Given that the Authority did not consider there to be “any basis” for detention, interrogation or harm “on the basis of dog ownership alone”, and that the applicant did not squarely claim there was such a basis in the future (and did not put forward clear evidence in support of such a claim), it is not surprising that the Authority found, at [71], that the consequences of future dog or pet ownership amounted to a denial of ownership or removal or destruction of the dog, and did not amount to persecution or serious or significant harm.

    [51] CB 224

    Ground 2

11. This Ground alleges that the Authority unreasonable failed to invite the applicant to give “new information”, under s 473DC(3) of the Migration Act. The applicant’s submissions address in general terms what the applicant says he should have been invited to give “new information” about.[52]

    [52] Paragraph [23] of the applicant’s submissions refers to the applicant being given an opportunity to provide information on “these issues” and “these matters”, but they are not precisely identified

12. The applicant takes issue with [17] of the Authority’s reasons.[53] There, reference is made to the applicant’s evidence that he continues to eat meat. The Authority found that this choice was reconcilable with the applicant holding views as to the humane treatment of animals. However, the Authority also agreed with the delegate that the applicant’s first written statement “definitively states” that he is against the killing of animals “for whatsoever reason”, and that this was “some indication” of a willingness in the applicant to exaggerate his profile. It is not apparent why it was legally unreasonable to not seek “new information” from the applicant about eating meat, in the context of what the Authority actually said at [17]. Fairly read, the paragraph contains a comment favourable to the applicant (ie his past statements are reconcilable), and then agreement with something said by the delegate. Legal reasonableness does not require the Authority to provide the applicant with a running commentary on its views of the evidence, or an opportunity to comment on any adverse view it has formed about his claims.[54]

    [53] CB 224

    [54] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [71]-[76]

13. The applicant also refers to the Authority’s observations, at [44],[55] that while in immigration detention the applicant had requested a halal meal plan, and that the eating of halal meat is an Islamic religious observance mandated by the Quran. The Authority’s more general point, in [44], was that the applicant’s “early contacts” with the Minister’s Department gave “some indications” that he was a limited or non-practising Muslim.[56] That observation was, in turn, made in connection with the Authority’s concern that the applicant’s claims about his rejection and hatred of Islam were made late (in May 2019, some two years after his visa application was made) and had evolved over time, which plainly goes to their credibility (and the credibility of the applicant’s claim to have converted to Christianity).[57] In that context, it is not apparent why legal reasonableness would have obliged the Authority to seek “new information” from the applicant about his request for a halal meal. That is especially so when the scheme of Part 7AA is that, ordinarily, the Authority is to review the delegate’s decision on the papers.[58] The Authority simply saw the request for a halal meal, in conjunction with many other matters, as going to the credibility of the applicant’s claim about his rejection of Islam and his conversion to Christianity. The Authority is not obliged to inform the applicant about specific reservations with this case and to offer the applicant an opportunity to respond.[59]

    [55] CB 228

    [56] see the first sentence of [44]

    [57] see [45] of the Authority’s reasons

    [58] Migration Act, s 473DB

    [59] DGZ16 at [71]-[76]

14. The standard of legal unreasonableness is “stringent”.[60] Legal unreasonableness is not established if a reasonable decision-maker could have reached the same decision.[61]  A reasonable Authority could, in the circumstances of this case, have decided not to seek “new information” from the applicant in relation to the matter identified at [17] and [44] of its reasons. It follows that no legal unreasonableness, and no jurisdictional error, is established.

    [60] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11]

    [61] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]

15. Neither do I accept that the Authority fell into error in making its complementary protection finding.  The Authority’s conclusion on complementary protection is squarely based on earlier factual findings and the rejection of the applicant’s claims of a fear of harm.  See also [75][62] where the Authority similarly found there to be no real risk of significant harm, including on account of restrictions on pet ownership.  In the circumstances of this case, the Authority was entitled to rely upon its earlier reasoning in relation to the refugee claims in order to deal with the issue of complementary protection.  In that regard, this case can be distinguished from my earlier decision in SZSFK v Minister for Immigration & Anor[63] at [91] where a claim for complementary protection had been overlooked. 

    [62] CB 234

    [63][2013] FCCA 7

    CONCLUSION

16. I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by jurisdictional error.  Accordingly, the decision is a privative clause decision and the application must be dismissed.  I will so order.

17. I will hear the parties as to costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       25 March 2021