ESA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1230
•1 October 2021
FEDERAL COURT OF AUSTRALIA
ESA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1230
Appeal from: ESA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 428 File number(s): NSD 331 of 2021 Judgment of: RARES J Date of judgment: 1 October 2021 Catchwords: MIGRATION – whether any failure to afford procedural fairness – whether any possible error material Legislation: Migration Act 1958 (Cth) ss 5, 5H, 5J, 36, 473CA, 473DD Cases cited: DQU16 v Minister for Home Affairs (2021) 386 ALR 363
ESA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 428
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister of Immigration and Border Protection v SZVFW (2018) 264 CLR 541
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
Plaintiff M64/2015 v Minister of Immigration and Border Protection (2015) 258 CLR 173
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 46 Date of hearing: 1 October 2021 Counsel for Appellant: Mr R. Chia Counsel for First Respondent: Mr N. Swan Solicitor for First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 331 of 2021 BETWEEN: ESA19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court rejecting the appellant’s application for constitutional writ relief from the decision of the Immigration Assessment Authority given on 24 October 2019 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: ESA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 428.
Background
The appellant, who is 33, is a citizen of Iran who made a variety of claims that the delegate and the Authority reviewed and rejected. He arrived in Australia in May 2013. Relevantly for present purposes, the appellant claimed that first, he was an animal rights activist in Iran and had a high profile in opposing the killing of animals, and, secondly, he had converted to Christianity in Australia and become an evangelising Christian, so that if he returned to Iran, his life would be in danger. He claimed that he had been born a Shia Muslim, but had turned away from Islam as a teenager. He claimed that, nonetheless, he had been required to follow Islamic rules, otherwise he would have been punished by Iranian authorities. He also made several other claims, but those are not the subject of this appeal.
In support of the first claim, the appellant asserted that he kept different animals at home, including cats and dogs, which his neighbours did not like. He claimed that one day, two police officers came to his home following a complaint by his neighbours regarding animals he kept and that a couple of days later the Iranian authorities collected those animals from his home, and that he cried for days. He claimed that in early 2013 the Iranian authorities arrested him, blindfolded him and confiscated his dog. He claimed that he was detained for three days and two nights, interrogated many times about his animal rights activism and the money he collected from animal rights activities. He claimed that during one interrogation the Iranian officer kicked his chair and that he fell and broke his finger. He claimed that the Iranian authorities wanted him to confess to supporting foreign organisations, but he had denied having any links to foreigners. Prior to his release from detention he claimed to have inquired about his dog, but the authorities told him it had been killed with an injection of acid. He claimed that they advised him that he would be monitored following his release from detention and put in jail or tortured if he did anything wrong, and that he could not attend any meeting with more than three people in attendance.
In support of the second relevant claim, the appellant asserted that he was good at soccer and wanted to become a professional player in Iran. He claimed that he had been required to play soccer for a military organisation in order to complete military service. He claimed that he had been referred to a soccer team run by Sepah, but was deemed not suitable for their team because of his (lack of) knowledge of Islam and that, as a result of the discrimination he received from the Islamic authorities, he could not pursue a career as a professional soccer player in Iran.
In his statutory declaration made on 27 May 2019, shortly before his interview with the delegate, the appellant said that after he turned 18 he had decided not to believe and follow Islam any more, and that, “I lost my faith in Islam completely. However, I had to pretend that I am a practicing [sic] Muslim in the society in order to be safe”. He confirmed that he continued to believe in God, but not according to Islamic beliefs.
The legislative context
Relevantly, s 36(2A) of the Migration Act 1958 (Cth) provides:
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The definitions of cruel or inhuman, and degrading, treatment or punishments in s 5(1) are:
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The delegate’s decision
The delegate rejected the appellant’s claims that I have described at [3] and [4] above and others. He found that the appellant was not a credible witness concerning his claimed animal rights activities or subsequent problems with Iranian authorities. The delegate recorded that the appellant had said that he had tried a vegetarian diet in Iran, but had found it physically difficult to maintain. During his interview with the delegate, the delegate had put to him, based on an undated and unsigned immigration centre management plan to which he agreed in June 2013 for the Wickham Point Detention Centre, that the appellant required a halal diet of three meals a day. The delegate found that the appellant had confirmed that he had eaten three halal meals a day whilst in immigration detention.
The delegate found that “the preparation of halal meal is an Islamic religious observance mandated by the Quran”. He found that some commentators reported that halal slaughtering methods were cruel and caused animals unnecessary suffering. He found that had the appellant claimed to have objected, as an animal rights activist, to the public slaughtering of animals at Islamic celebrations. In that context, the delegate found that it was reasonable to assume that the appellant would not consume halal meat prepared using the same Islamic slaughtering methods. He found that this negated the appellant’s claim that he viewed consumption of meat as anathema because he objected to the killing of animals for any reason whatsoever.
The delegate also found that in April 2013 the appellant left Iran using his own passport, and that this indicated that he was not a person of interest to the Iranian authorities at that time. He found that the appellant had contrived an elaborate story regarding his animal rights activities in Iran in an attempt to enhance his claims for protection and rejected them.
The delegate considered the appellant’s claims to have converted to Christianity and to be a proselytising Christian. The delegate recounted in his reasons the difficulties in accepting this claim that he had identified to the appellant during the interview. These difficulties included the lateness of his notification of his conversion, some six years after he arrived in Australia, and the appellant’s lack of knowledge of any significant Christian beliefs and practices. He found that the appellant had engaged in Christian activities here to enhance his protection visa claims. He considered whether or not the appellant genuinely believed in Christianity, notwithstanding that his conduct was intended to enhance his protection visa claims. He found that the appellant was not a genuine Christian convert, nor an evangelising Christian who had promoted Christianity to his friends and family in Iran and Australia. The delegate attached weight to the fact that in his visa application that was lodged six days before he obtained a certificate of baptism in 2017, the appellant had identified himself as having no religion. The delegate found that there was no real chance that the appellant would be identified as an apostate or as a religious activist by Iranian authorities or that he would suffer religious harm should he return to Iran as a non-practising Muslim. The delegate found that, having carefully considered the evidence, the appellant’s Christian activities in Australia had to be disregarded on the basis that the appellant had engaged in them to enhance his claim to be a refugee pursuant to s 5J(6) of the Act.
The delegate also rejected the appellant’s claims that he had failed to secure employment as a professional footballer and he had been politically active in Iran. The delegate found the appellant had not come to the adverse attention of the Iranian authorities because of any perceived anti-Government activities as an animal rights activist and that he would not suffer serious harm from the Iranian authorities for reasons of his religion or imputed political opinion were he to be returned to Iran. The delegate also rejected the appellant’s claim for complementary protection under s 36(2)(aa) of the Act for the reasons that he rejected the claims for refugee status.
The proceedings before the Authority
The Minister referred the review of the delegate’s decision matter to the Authority as a fast‑track review matter under s 473CA. The appellant’s migration agent made submissions to the Authority. The agent stated that the appellant’s most important claim for the purposes of his protection visa was his claim to have converted genuinely to Christianity and to be an active Christian in Australia, including his engaging in evangelical and proselytising activities. The agent submitted that the appellant’s life would be in danger upon return to Iran because of his religious belief as a Christian and his proselytising activities, given the Iranian Government’s position that Christian and anti-Islam activities would be considered anti‑Government. The agent argued that there was also a risk, for the purposes of the complementary protection criterion, that the appellant would suffer significant harm should he be returned to Iran and that the delegate had failed to give proper consideration to that issue.
The Authority’s decision
The Authority noted that the appellant had contended in his visa application that his main reason for leaving Iran was that he had been arrested, interrogated, and seriously harmed over the course of two or three days of detention and that his dog was killed in relation to his animal activism claim.
The Authority comprehensively reviewed the material before it and made some findings more favourable to the appellant than the delegate had made. However, the Authority accepted the delegate’s finding that the appellant’s assertion that he was against the killing of animals for whatever reason was an example of his willingness to exaggerate his claims. It was not satisfied that the appellant was an animal rights activist and found that his claims in his visa application were likely to be an exaggeration and embellishment of his past experiences in Iran. It found:
21. If it was the case he breached the law or a council order in relation to his dog, I am prepared to accept the applicant may have been arrested and briefly detained. However, as I do not accept he was active in relation to animal rights, whether in terms of arranging the claimed workshop or collecting funds, arranging other meetings, advocating or being outspoken about animal rights more generally, I do 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 supporting foreign organisations) or that he faced other charges as he claims, on the basis of dog ownership alone. I am not satisfied and do not accept he was harmed (his finger broken), that he was subjected to monitoring, threatened, or that he feared he would be killed. I accept his dog was destroyed, that claim has consistently been advanced, but I can see no basis to accept that his dog was injected with acid or cut into pieces.
22. In making these findings, I give weight to the fact that the applicant remained in Iran for two or three months after the claimed incident, and was able to leave Iran via air, using his own passport. That is a strong indication to me that he had no such profile, or ongoing profile from the incident involving his dog or his other claimed activities. I also do not consider it likely he would have been so readily released from detention had the authorities considered he had such a profile. I consider this is an indication of further exaggeration and embellishment in his claims, and if it is the case that he was arrested, I prefer his evidence at the entry interview that he faced no charges.
23. Considering all the circumstances, I accept the applicant loves animals and was a dog owner. I also accept the applicant likely holds low level views about the treatment of animals and animal rights. However, I am not satisfied and do not accept he has been politically or socially active in relation to animals in the past, or that he has faced threat, harm or interference in connection with such activities, and in any of the ways he has claimed in this application. In terms of his return to Iran, while I accept he may again wish to own animals, I am not satisfied and do not accept he would be active or involved in animal rights.
(emphasis added)
The Authority turned to consider the appellant’s claims based on religion. It found to be significant that there was a lack of specific or concrete evidence that the appellant was a genuine Christian, a regular attendee of any church, was recognised by the Christian community, or had engaged in sharing his faith in evangelism or otherwise as a Christian in Australia. It found that the appellant’s oral evidence about his faith to the delegate was limited and unpersuasive. It was not satisfied that the appellant evangelised, attended bible class or shared his Christian faith in any way, although it accepted that he attended Sunday mass at church and had been baptised in April 2017. The Authority was not satisfied that the appellant’s conversion to Christianity and his attendance at the church was genuine or that he would identify as a Christian, practise as one, or evangelise to others about Christianity on his return to Iran. It found that this would not occur because of any fear on the appellant’s part or modification of his behaviour, but “because his claims to have converted to Christianity are not genuine”. The Authority then found:
44. In his early contacts with the Department and related bodies, the applicant gave some indications that he was a limited or non-practising Muslim. In his detention plan from June 2013, the applicant is identified as a Muslim. He appears to have advised detention staff that he does not consider himself a religious man and would not need to visit a place of worship. However, it also appears that he requested a Halal meal plan. On the basis of the DFAT cable cited by the delegate, I find the eating of Halal meat is an Islamic religious observance mandated by the Quran. In his arrival interview and visa application, he did not identify as a Muslim, but he also did not detail any claims to have faced harm in connection with his non-observance. I find that fact significant.
45. The applicant’s contentions about the evolution of his rejection and hatred of Islam were not advanced until his second written statement from May 2019. Those claims included unspecified issues he faced with Islam as a youth, a conflict with the manager of a military soccer club, and the resultant derailment of his soccer career. I have serious concerns about the late raising of these claims. In contrast to the timing of his Christianity claims, there can have been no uncertainty about the evolution of his claims to have rejected Islam, and I consider his failure to detail these claims and beliefs until May 2019, strongly undermines the credibility of these claims.
46. As with his Christianity claims, I consider his specific claims raised in his May 2019 statement are contrivances, designed to strengthen his claims for protection.
47. It follows that I do not accept his claims that he has hatred for or rejected Islam, or that he has been outspoken or critical of the Iranian Government and Islam. I do not accept he faced issues with the authorities because of his non-observance or rejection of Islam. I do not accept he clashed with the manager of a military soccer team, or that his soccer career was derailed because of his rejection of Islam. I do not accept any aspect of his revised claims about his religious profile contained in his May 2019 statement. What I do accept is that the applicant has consistently provided indications that he is a limited or non-practising Muslim. While indicating he believes in God and continued to observe halal, he did not attend mosque. I consider those factors, and the non-feature of his religious profile in his entry interview and visa application, reveal his true religious profile – i.e. that he is a limited or non-practising Muslim. I have assessed him on the basis of that profile.
(emphasis added)
The Authority dealt separately with the other claims for protection which the appellant made, including one under the heading “Claims related to practise of Islam”. The Authority adopted the findings by the delegate that a majority of young Iranians did not practice Islam and that the appellant’s non-attendance at mosque would not necessarily arouse any suspicion as many in Iran did not regularly attend the mosque. It accepted the country information in a 2016 Department of Foreign Affairs and Trade (DFAT) report that stated that it was highly unlikely that the Iranian government would monitor religious observance by Iranians, for example, whether or not a person regularly attended mosque or participated in religious activities on occasions. Thus, it assessed that it was unlikely that it would become known that the appellant was a person who was no longer faithful to Islam. The Authority found that the appellant would be a low level or non-practising Muslim on return to Iran. It found that he believed in God and accepted that the appellant was not an atheist and:
62. Beyond his non-attendance at mosque, I find the applicant still complies with some aspects of his Islamic background, for example observing Halal. I find that at most the applicant is indifferent to Islam, and that manifests in his unwillingness to attend mosque and engage in daily prayers. I find that would be the extent of his non-adherence with Islam, and a form of non-adherence the country reports indicate is very common, unlikely to be identified and unlikely to put him at risk. In any event, I consider it likely that he does engage in attendance and religious observance to some degree, to the extent that may from time to time be expected of him socially. For clarity, I do not consider that would involve any modification of his behaviour, as I consider his views on Islam are of indifference, not objection.
(emphasis added)
The Authority was satisfied, on all of the information before it, that the appellant would be a limited or non-practising Muslim on return to Iran, but that, based on the country information, there was no real chance of him facing harm for those reasons were he to return to Iran now or in the reasonably foreseeable future.
The Authority found under the heading “Pet ownership”:
71. 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.
(emphasis added)
It concluded that the appellant did not meet the definition of refugee in s 5H of the Act and was not entitled to a visa under s 36(2)(a).
The Authority then turned to reviewing the appellant’s claim to complementary protection under s 36(2)(aa) and set out the definition of significant harm in s 36(2A). Relevantly, the Authority found:
75. I have found there is no real chance of the applicant facing harm for any of the reasons he has claimed, whether in terms of his claimed religious profile (including conversion), political profile (including animal activism), his status as a returnee and failed asylum seeker, in terms of restrictions on pet ownership, or any other basis as discussed and iterated above. For the same reasons, and having regard to the same information and analysis, I find there is not a real risk of the applicant facing significant harm, including his contentions about torture or the death penalty, for these reasons on his return to Iran.
76. Given my above assessment indicates his profile is limited and low level, my rejection of his religious and political claims as non-genuine, and again having regard to all the information before me, I also do not consider there is any real chance or risk of the applicant facing serious or significant harm, even when his profile is considered in a cumulative sense.
(emphasis added)
Accordingly, the Authority affirmed the delegate’s decision.
The trial judge’s decision
The appellant’s two grounds for review of the Authority’s decision before the primary judge revisited substantively the same issues as those on the appeal. Those grounds were that the Authority had, first, failed to ask itself whether the risk of the appellant being exposed to a penalty for owning a pet in the future amounted to a real risk of significant harm within the meaning of s 36(2A) of the Act and, secondly, unreasonably failed to invite the appellant to give new information or failed to consider doing so, having regard to the criteria in s 473DD.
The trial judge accepted the Minister’s submissions and rejected both grounds of review before him.
His Honour found that the appellant had the onus of advancing evidence and arguments in support of his claims and that the Authority’s role was to determine whether or not it was satisfied those had been established. The trial judge found there was no obligation on the Authority to consider claims that were not made and that it was necessary to read the Authority’s reasons fairly and not in an unduly critical manner. His Honour found that the Authority had turned its mind at [71] of its reasons to what might happen to the appellant if he obtained a dog or other pet on return to Iran. He found that, on a fair reading of its reasons, the Authority accepted that the appellant may attempt to do so but that the consequences would be the possibility that he would not be able to do so or that he would have a penalty imposed in the form of the dog being taken away and or destroyed. His Honour held that the Authority was not satisfied there were any restrictions on pet ownership which give rise to a well-founded fear of persecution within the meaning of s 5J of the Act, or that there was a real chance of him suffering serious harm within the meaning of s 5J(4)(b) and (5) in relation to dog ownership. In those circumstances, his Honour found that, while the Authority had observed that the appellant might be arrested and detained briefly and his dog destroyed, as he had been in the past, it did not consider there was any basis to find that he would suffer any serious harm. Accordingly, his Honour rejected the first ground.
The trial judge also rejected the second ground. He found that it was not apparent why it might be legally unreasonable for the Authority not to have sought new information from the appellant about eating meat. His Honour had regard to its findings that, favourably to the appellant, continuing to eat meat was not necessarily inconsistent with his claims to support animal rights, since such support was also capable of being for the purposes of ensuring humane treatment of animals. His Honour rejected the appellant’s argument that the Authority’s reference to the eating of halal meat being a religious observance mandated by the Quran and its use of the information from the management plan required it to seek new information from the appellant under s 473DD about his request for halal meals while in immigration detention.
His Honour found that the scheme of Pt 7AA of the Act, ordinarily, did not require the Authority to review the delegate’s decision beyond a review on the papers. He found that it had considered the appellant’s request for halal meals in conjunction with many other matters as going to the appellant’s credibility about his claim to have rejected Islam and converted to Christianity. His Honour found that the standard for legal unreasonableness was “stringent”, referring to Minister of Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11], and that legal unreasonableness could not be made out if a reasonable decision maker could have reached the same decision. He found that the Authority’s decision was open to it in the circumstances.
His Honour also found that the Authority’s conclusion on complementary protection was clearly based on its rejection of the appellant’s claims to fear harm, including on account of any restrictions on pet ownership in Iran, as it stated in [75]. Accordingly, he found that the Authority had not erred, and dismissed the application.
This appeal - the appellant’s submissions
The appellant argued that his Honour ought to have found in his favour on the basis that in [71] of the Authority’s reasons, it addressed the appellant’s claims based on his pet ownership in the context of whether he met one of the criteria for refugee status, but did not at that point deal with any claim for complementary protection. The appellant contended that, when dealing with his claim for complementary protection in [75], the Authority merely transposed its consideration that the appellant could not establish that he had a well-founded fear of persecution were he to be returned to Iran now or in the foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion, to the criterion of the complementary protection, which did not limit consideration to those criteria. He submitted that the potential for him to be treated adversely for pet ownership required the authority to engage in a more detailed consideration, particularly having regard to the definitions in s 5(1) of the Act of cruel or inhuman, and degrading, treatment or punishment for the purposes of s 36(2A)(d) and (e).
He argued that the Authority had information that the appellant had been arrested and detained because of his dog ownership and that his dog had been killed. But, he asserted it needed to do more than it did to consider the complementary protection aspect of his claims, having regard to his claimed fear based on his wish to own a dog or other pet that was likely to attract adverse consequences were he to return to Iran. He contended that the Authority had not engaged in the evaluative task appropriately but had narrowed its focus, in its consideration of complementary protection claims, to looking only at the same matters as were required for refugee protection. The appellant accepted that it was open to the Authority to infer that he would be at risk of no greater penalty than had applied, on its findings, to his ownership of a dog as it had found at [21]. However, he submitted that the Authority had to go further and consider what other possible outcomes may have occurred.
As to the second ground, the appellant argued that the delegate had only interviewed him about eating halal meat in relation to his claim to be opposed to the consumption of meat based on cruelty to animals. He contended that the Authority’s use, in [44], of the material in his management plan required it to invite him to give it new information. He submitted that this was because it was a new use of information specifically about him that was a reason or part of the reason for rejecting his claim for protection, as contemplated in s 57(1) of the Act. He argued that it had never been put to him that his eating of halal meals was an indication of his observance of Islam. He asserted that procedural fairness required that, before the Authority made its unfavourable findings, based on its use of this information relating to his halal meal requirements that the delegate had used only to deal with his animal activist claims, he be asked to give new information on this under s 473DD. He contended that he had made a clearly articulated claim in his statutory declaration that he had to pretend to be a practising Muslim in society in Iran in order to be safe, which the Authority was obliged to consider. He submitted that he was not on notice that the information about his consumption of halal meals could be used for a purpose other than dealing with his claims about animal activism.
Consideration
The reasons of an administrative decision maker must not be construed minutely and finely with an eye keenly attuned to the perception of error. They must be read fairly as a whole: see Plaintiff M64/2015 v Minister of Immigration and Border Protection (2015) 258 CLR 173 at 195–196 [59]–[60] per French CJ, Bell, Keane and Gordon JJ, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In Wu Shan Liang 185 CLR at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said:
… a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker ([Collector of Customs v] Pozzolanic (1993) 43 FCR 280 at 287). The Court continued (Pozzolanic 43 FCR at 287): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (See McAuliffe v Secretary. Department of Social Security (1992) 28 ALD 609 at 616). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
(emphasis added)
Merely because relevant material is not mentioned by a decision maker who need not give comprehensive reasons, does not mean that the decision maker ignored the material: Plaintiff M64 258 CLR at 185–186 [25].
Here, the Authority considered the appellant’s claims about pet ownership. It rejected virtually all of his claims as to his asserted animal activism, then made its positive finding in [21] that the appellant’s dog had been destroyed and that he may have been arrested and briefly detained in the course of the incident involving the neighbour’s complaints. But, it rejected all of the appellant’s other claims of adverse consequences including as to how the dog was allegedly killed cruelly. When dealing in [71] with the appellant’s claimed wish to own pets, the Authority was entitled to find that this claim did not support his claim for refugee status, and did not need to engage in any further fact finding. Importantly, the Authority noted that the appellant and his representative had neither suggested nor put material to the delegate or it that any restriction in the laws of Iran would involve systematic or discriminatory conduct or serious harm in the sense contemplated by s 5J(4) and (5) of the Act, were the appellant to return to Iran and wish to own a dog or other pet. While that conduct is not necessarily the same as conduct amounting to significant harm within the meaning of s 36(2A), there are obvious areas where the two can overlap.
Those findings were important in considering how the Authority approached the complementary protection ground in [75] of its reasons when it said, “[f]or the same reasons and having regard to the same information and analysis”, that there was no real risk of the appellant facing significant harm, for those reasons, were he to return to Iran. The Authority was looking at what consequences might befall the appellant. The appellant made no claim that he feared that he would be arbitrarily deprived of his life, that the death penalty would be carried out on him or that he would be subjected to torture as a result of animal ownership. In the course of argument today, the appellant asserted that he might be subjected to cruel or inhuman, or degrading, treatment or punishment within the meaning of s 36(2A)(d) and (e).
There was no information about regulatory conditions in Iran involving dog ownership before the delegate or the Authority beyond the appellant’s exaggerated claims, which both of them rejected. The Authority found on the material before it that the worst that could befall the appellant was that he could be deprived of the ability to own a dog or pet, or, if he owned a pet, he might be arrested, briefly detained and the animal taken and destroyed. Those consequences could not conceivably, objectively fall within the definition of significant harm in s 36(2A) of the Act (any more than they could have fallen within the definition of serious harm in s 5J for the reasons that the Authority gave in [71]) and, accordingly, could not support a finding that the appellant was entitled to complementary protection on that basis: DQU16 v Minister for Home Affairs (2021) 386 ALR 363 at 370 [21], 371 [23] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ. Therefore, even if the appellant’s arguments on this ground had substance, there could have been no different result because the error asserted could not have been material: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at 605 [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In my opinion, the trial judge did not err in rejecting ground one.
Ground two involved the proposition that the delegate’s question to the appellant, about an Islamic religious practice, namely the eating of halal meals prepared in accordance with Islamic religious requirements, did not fairly put him on notice that an issue in the review by the Authority might be that he was not truly claiming to have rejected Islam, that, as he said in his statutory declaration, he was unhappy pretending to be a practising Muslim and that, before leaving Iran, he no longer was a believer in the Islamic faith, albeit that he still believed in God.
The appellant did not identify as a Muslim in his arrival interview or in his visa application and he did not make any claims in those that he feared harm in connection with his attitude to Islam or lack of religious observance in Iran. All that he had said in his statutory declaration was that he had to pretend that he was a practising Muslim in the society in Iran in order to be safe. His claim stopped there without explaining what, if any, consequences he feared that would render him unsafe were he not so to pretend. The delegate had found that there was no real risk of the appellant facing significant harm because of his claimed Christianity or desire to proselytise.
In my opinion, the Authority was entitled to consider the material before it, including the management plan, in making its very limited findings in [44]. There, the Authority found, as was both obvious and open to it, that the eating of halal meat was the observance of an Islamic religious practice mandated by the Quran.
The appellant only made the claim that he had to pretend to be a practising Muslim in his statutory declaration immediately before the visa interview with the delegate. The fact that the appellant stated to the detention centre that he wished to have halal meals and admitted to the delegate that throughout his period in immigration detention he had eaten three halal meals a day, was an obvious matter from which it would be open to a decision maker, in the position of the Authority, to infer that he wished to eat halal meals prepared in accordance with Islamic religious practice.
Whether or not that wish was inconsistent with a renouncement of the Islamic religion was a matter open to be evaluated by the Authority on the material already before it. But, the appellant’s wish to eat three halal meals a day was not used by the Authority in its reasoning process in a way that treated it as new information. The delegate had referred expressly to preparation using halal practices as being a religious observance mandated by the Quran. The Authority explained why it rejected the appellant’s claims based on Christianity in [45]–[47] immediately after its reference to the halal meals in [44]. Ultimately, it concluded that it did not accept any aspect of the appellant’s claims as to his religious profile contained in his May 2019 statutory declaration. It found that he was a limited or non-practising Muslim who believed in God and continued to observe the consumption of halal meals.
In dealing with his claim relating to the practice of Islam in [60]–[63], the Authority, again, found that at most, the appellant was indifferent to Islam and that the extent of his non-adherence to Islam would not, on the country information, place him at any risk were he to return to Iran.
In those circumstances, even if the appellant’s complaint that the Authority ought to have put to him the fact that it wished to use his consumption of halal meals to support a finding that he had not repudiated Islam, had it done so could not have made any difference to the outcome: MZAPC 390 ALR at 605 [60]. The appellant put no material before the delegate or the Authority to suggest that he was at any risk of harm based on his religious belief, or lack of it, before he left Iran and the DFAT country information indicated that he was not likely to be at risk as a non-adherent to Islam, which it stated was “very common” in Iran. There is no basis for the appellant’s argument that it was unreasonable or plainly unjust for the Authority not to have put to him how it might use his wish to consume, and his consumption of, halal meat.
In my opinion, there is no basis, on the material before me, to consider that the Authority had failed to perform its statutory task. For these reasons, ground two fails.
Conclusion
The appeal must be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 12 October 2021
0
7
1