GGD18 v Minister for Home Affairs (No 3) - [2019] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

GGD18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR (No.3)

[2019] FCCA 444

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the applicants were “fast track applicants” – whether the Authority had jurisdiction to review the delegate’s decision – whether the appointment of a port as a proclaimed port was invalid as it was published one day prior to commencement of s.3(2) of the Migration Amendment Act (No.2) 1980 (Cth) – no jurisdictional error identified – amended application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.4

Migration Amendment Act (No.2) 1980 (Cth), s.3(2)(c)

Migration Act 1958 (Cth), ss.5H, 5J, 5AA, 36, 473CB, 473DD, 476

Cases cited:

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

First Applicant:

Second Applicant:

Third Applicant:

GGD18

GGE18

GGF18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3351 of 2018

Judgment of:

Judge Street

Hearing date:

26 February 2019

Date of Last Submission:

26 February 2019

Delivered at:

Sydney

Delivered on:

26 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Applicant:

Nikjoo Lawyers

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The first and second applicants, GGD18 and GGE18, are appointed litigation guardians for the third applicant, GGF18, and the Court dispenses with the need of the filing of any affidavit in that regard.
The amended application is dismissed.
Grant leave to the first respondent to file in Court the affidavit of Sophie Verity Lloyd dated 25 February 2019.
The first and second applicants pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3351 of 2018

GGD18

First Applicant

GGE18

Second Applicant

GGF18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 29 October 2018 affirming a decision of the delegate not to grant the applicants Protection visas.
The first and second applicants are the parents of the third applicant. The applicants were found to be citizens of Iran and their claims were assessed against that country. The first and second applicants claimed to fear harm by reason of the circumstances in which they were married and arrangements that had been made by the first applicant's grandfather for a different marriage. The applicants claim to fear harm from the first applicant's father’s family, blaming them for her grandfather's death and they will harm her if they return to Iran.
The applicants also claim to fear harm because the first and second applicants no longer practice Islam, as well as by reason of having sought asylum in a Western country. The first and second applicants also claim to fear harm on the basis that their marriage is not lawful, and that they fear harm as being adulterers who had the third applicant outside wedlock.
On 23 May 2018, the delegate found the applicants failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate on 23 May 2018 found the first and second applicants were unauthorised maritime arrivals, having arrived in Australia on 30 September 2013. There is evidence before the Court that the applicants arrived at Christmas Island on that date.
The applicants were found to be fast track reviewable applicants and the Authority wrote to the applicants on 29 May 2018 explaining that the application for the visa had been referred to the authority for review. The letter provided an attached fact sheet and practice direction, giving the applicants an opportunity to put on new information and submissions. The applicants did so.
The Authority identified the background of the visa application and had regard to the information given by the Secretary under s 473CB of the Act. The Authority referred to the receipt of submissions and insofar as they engaged with the delegate's decision, the Authority had regard to the same. The Authority expressly referred to the whole of the limbs of s 473DD of the Act and then proceeded to identify a marriage certificate (with translation), which the Tribunal found not to be new information and accordingly had regard to the same.
The Authority referred to country information from the Immigration and Refugee Board of Canada in 1988 and found that there were not exceptional circumstances to have regard to the same. The Authority referred to three page extract called “Changing God's Law: the dynamics of Middle Eastern family law” and found that there were no exceptional circumstances to have regard to the same. The Authority referred to country information on honour killings and was not satisfied there were exceptional circumstances to justify considering the new information.
The Authority referred to a document from the State Legal Medicine Organisation dated 29 December 2014 and a passport sized photograph and found that there were not exceptional circumstances to justify considering the information.
The Authority took into account updated DFAT country information from the 2018 report.
The Authority summarised the applicants’ claims and identified the relevant law. The Authority referred to the first applicant's claims concerning her mental health and was satisfied the applicants would be able to access mental health services if they returned to Iran, should they require it, and that they would not face a real risk of harm on this ground.
The Authority referred to the first and second applicant's marriage and their claim to fear harm by the first applicant's family in an honour killing, because the first applicant dishonoured the family by marrying the second applicant against their wishes, rather than her cousin. The Authority identified inconsistencies in the first and second applicant's evidence about the arrangements relating to the arranged marriage. The Authority accepted the first applicant's evidence that she was due to marry her cousin after she finished her studies, but that the marriage did not take place because she had already married the second applicant.
The Authority accepted that the first and second applicants got married and that they may not have had the permission of the first applicant's grandfather. The Authority identified however having credibility concerns about the applicants’ evidence regarding their wedding ceremony, which the Authority found changed between their transfer and Safe Haven Enterprise visa interviews. The Authority referred to the applicants’ claim now advanced that the Imam was a fake and that the marriage certificate was a forgery and that their marriage is not lawful and valid.
The Authority referred to what had been said at the transfer interviews and referred to the applicants' statutory declaration, and to the much more detailed account about the marriage and the conduct of the Imam at the Safe Haven Enterprise visa interviews than in the statutory declarations and referred to what was said by the second applicant and the providing of the marriage certificate with translation. The Authority found that there was insufficient evidence about the features of a supplementary certificate to reach a firm conclusion that the document submitted by the first applicant is a supplementary certificate.
The Authority referred to the first and second applicants' claim in their transfer interviews and their protection applications that they are married. The Authority found that the first applicant has provided inconsistent evidence about who became her legal guardian after her father died and did not find her evidence in that regard convincing. It was in these circumstances, that the Authority was not satisfied that the change in the evidence was due to mental health issues and had serious doubts about the applicants’ evidence that their marriage was conducted by a fake cleric. It was in those circumstances, that the Authority was not satisfied that the marriage of the first and second applicants was conducted fraudulently and found that the first and second applicants were married in Iran on 31 March 2011.
The Authority was satisfied the Iranian authorities accepted that the applicants were not yet married at the time that they applied for a passport. The Authority was not satisfied there was any real chance that Iranian authorities will regard the applicants as people who have lived together without being in a lawfully executed Islamic marriage and penalised or harm them for that reason. The Authority was not satisfied that the third applicant is or perceived to be a child born out of wedlock or that there is a real chance she will face harm for being an illegitimate child if she returns to Iran.
The Authority was not satisfied that the shop's windows were broken by the first applicant's family, given the second applicant admits that he does not know who broke the windows and that he can only speculate that they were broken by the first applicant's family.
The Authority found that the first and second applicants were able to live in a particular location for a year before their departure from Iran without being found or harmed by the first applicant's family.
The Authority was not satisfied that alleged incidents involving an attack on the second applicant's brother occurred either where the first and second applicants were living or in another location. The Authority was not satisfied that the first applicant's family face ongoing harassment or that any ostracism they experience has any connection with the applicants’ marriage.
The Authority found the applicants’ explanation about the uncle using contacts in the Sepah to find them previously is not credible. The Authority did not accept that the applicants have an uncle in the Sepah. The Authority found the first and second applicants' evidence that they paid someone to help them get through immigration at the airport not to be credible. The Authority did not accept that the applicants were on a black list or had any reason to fear leaving Iran.
The Authority referred to the first applicant's grandfather dying of a stroke and their claim to fear harm on the basis that they will be victims of honour killings if they return to Iran from the first applicant's family. The Authority referred to country information. The Authority took into account that the applicants were not the victims of an honour killing or violence in the year that they lived together at a particular location, even though the first applicant's family knew where the second applicant worked. The Authority did not accept that the family had any intention to harm the applicants because of the marriage. The Authority did not accept the first and second applicants were harmed by the first applicant's family in the past and referred to the adverse finding in respect of the uncle working for the Sepah. It was in those circumstances, that the Authority was not satisfied that the applicants face a real chance of harm from the first applicant's extended family in Iran, or from the authorities, either now or in the reasonably foreseeable future. The Authority did not accept the third applicant faces a real chance of harm as a child whose parents would be killed.
The Authority referred to the applicants’ claim that they would be harmed as they no longer practiced Islam. The Authority referred to the identical claims in that regard and that they come from a conservative family and if they are sent back in Iran and their family finds out they are not practicing Islam anymore, they will punish them.
The Authority took into account that there was no claim made by the applicants that their families are aware that they are non-practicing or have threatened them on that basis. It was in those circumstances, that the Authority was not satisfied the applicants face a real chance of harm from their families if they return to Iran for reasons of their religious belief.
The Authority considered whether the applicants would face any harm from the authorities for not practicing their religion if they return to Iran. The Authority took into account that there was no suggestion by either applicant that they wish to publicise their beliefs either in Australia or if they return to Iran. The Authority took into account country information, including in particular, if a person converts to another religion, they can be charged with apostasy. Reference was made in that regard to the views of most Islamic judges regarding apostasy as a capital crime.
The Authority referred to other country information in relation to people in Iran who do not attend mosques. The Authority also referred to the 2016 DFAT Country Information Report that it is unlikely that the government would monitor religious observance by Iranians, such as whether they regularly attended mosque or participate in religious occasions, and thus it would be generally unlikely that it would become known that a person was no longer faithful to Shia Islam. The Authority referred to the fact that perceived apostates were only likely to come to the attention of the Iranian authorities through public manifestations of their new faith, attempts to proselytise and attendance at a house church or via informants. It was in the context of that country information, that the Authority was not satisfied the fact that the applicants are no longer practicing Islam would bring them to the adverse attention of the authorities if they were to return to Iran. The Authority did not accept that they would face a real chance of harm for not practicing Islam if they were to return to Iran.
The Authority referred to discrimination against women and girls and was not satisfied on the evidence that there is a real chance that the applicants would face treatment amounting to serious harm.
The Authority referred to the applicants having claimed asylum in Australia and that the authorities may infer that they sought asylum in Australia. The Authority was not satisfied that there is a real chance the applicants would suffer harm in Iran as a result as being identified as failed asylum seekers who sought protection in a Western country or, in the case of the third applicant, as a child who was born in a Western country. The Authority referred to the data breach and was not satisfied that the publication of their details would otherwise lead to a real chance of harm.
The Authority found the applicants did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicants did not meet the criteria in s 36(2)(a) of the Act.
In considering complementary protection, the Authority referred to the finding made that the first and second applicants were lawfully married in Iran in March 2011 and the adverse findings made under the Refugee Convention. It was in that context that the Authority was satisfied there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being returned from Australia to Iran, there is a real risk the applicants would suffer significant harm. The Authority found the applicants did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

The grounds in the amended application dated 1 February 2019 without the particulars are as follows:
Ground 3: The respondents failed to follow procedures required by law
3. The decision by the IAA is vitiated by jurisdictional error as the applicants were not an “unauthorised maritime arrival” (UMA) as defined by section 5AA of the Migration Act 1958 (Cth) and therefore were not “fast track applicants” as defined by section 5 of the Migration Act 1958 (Cth). As a consequence, the applicants were not notified of the decision made by the delegate to Minister on 23 May 2018 pursuant to section 66 of the Migration Act 1958 (Cth).
Ground 4: The IAA erred by finding that there were not exceptional circumstances to justify consideration of new information regarding the attachments to the submission dated 18 June 2018, pursuant to section 473DD(a) and (b) of the Migration Act 1958 (Cth)
4. The finding by the IAA that there were not “exceptional circumstances” to justify consideration of the “new information” regarding (a) the second translation of the applicant’s marriage certificate, dated 10 May 2018 at [6]; or (b) the medical report and the photograph of the injury sustained by the second applicant’s brother dated 29 December 2014 at [10], which were not before the delegate to the Minister, was affected by jurisdictional error for the following reasons.
a) The IAA failed to consider the requirements pursuant to section 473DD(a) of the Migration Act 1958 (Cth) in conjunction with the requirement pursuant to section 473DD(b)(i)(ii) of the Migration Act 1958 (Cth); and/or b) There were exceptional circumstances to justify consideration of the “new information” pursuant to section 473DD(a) of the Migration Act 1958 (Cth); and/or c) The “new information”, which was not before the delegate to the Minister, was not and could not have been provided to the Minister before the Minister made the decision under section 65 pursuant to section 473DD(b)(i) of the Migration Act 1958 (Cth); and/or
d) The IAA misapplied principle with regard to whether the “new information”, was “credible personal information” pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth); and /or 5
e) The IAA failed to consider whether the “new information, which was not previously known to the delegate and if it was known by the delegate, whether it would have affected the consideration of the applicant’s claims, pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth).
f) In the premises, the IAA took an inappropriately narrow view of the breadth of the expression “exceptional circumstances” in section 473DD of the Migration Act 1958 (Cth). As a consequence, the review by the IAA pursuant to section 473CC of the Migration Act 1958 (Cth) miscarried by way of jurisdictional error.
Ground 5: The IAA failed to consider the real risk of harm faced by the applicant as an apostate under Iran law and therefore constructively failed to review the applicant’s claims
5. The decision by the IAA was affected by jurisdictional error as the IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the claim at [13] that the applicants fear harm from the first applicant's family because the first and second applicants married without the permission of the first applicant's grandfather, who is her guardian” and that “they fear they may be victims of an honour killing if they return to Iran.” The IAA therefore constructively failed to review the applicants’ claims.
Ground 6: The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant should modify his behaviour so as to avoid a real chance of persecution
6. The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) at [52], by failing to consider whether the applicants will be forced to modify their (a) religious beliefs as nonpractising Muslims; or (b) their political opinion or membership of a social group as females in Iran, so as to avoid persecution, given the abject suppression of religious and political rights in Iran. Alternatively, the IAA erred by implication that the applicants can or should modify their (a) religious beliefs as non-practising Muslims, or (b) their political opinion or membership of a social group as females in Iran, so as to avoid a real chance of persecution, given the abject suppression of religious and political rights in Iran.
Ground 7: The IAA erred by failing to distinguish the application the applicants’ claims as non-practicing Muslims and apostates under refugee criterion from the complementary criterion
7. The decision by the IAA was affected by jurisdictional error as the IAA erred by failing to examine entirely the applicant’s claims of apostasy under the complementary criterion and by conflating the findings regarding the applicants claims regarding apostasy under the refugee criterion at [48] with the applicants claims of apostasy under the complementary criterion at [58] of the decision record.

Ground 3

Mr Williams of counsel on behalf of the applicants unsuccessfully endeavoured to ask this Court to require production of a document that would permit the applicants to explore where else the vessel that had collected them on the high seas may have visited prior to arriving in Christmas Island. The Court refused the requirement to produce documents and did so on the basis that ground 3 does not plead some other place of landing or arrival by the applicants and accordingly the documents sought was not relevant.
The Court also refused to allow cross-examination on the issue, in circumstances where Mr Williams properly conceded that the cross-examination was only for the purpose of seeking to agitate the issue the subject of the possible arrival of the applicants in some other place prior to the identified arrival at Christmas Island in ground 3. Mr Williams candidly acknowledged that this was in order to endeavour to identify what might be a new ground. No such ground was pleaded. This Court made orders requiring the identification of grounds properly particularised, which Mr Williams complied with and no such ground was raised.
The material before the Court does not identify any basis upon which it could be inferred that the applicants had arrived at some other location. I do not accept that the reference to them having left Indonesia about September 2013 gives rise in the circumstances of the present case to any real issue advanced in the amended application that would have made any such cross-examination relevant. In that regard, Mr Williams sought to place weight on the reference to the applicants being first detained onboard a vessel belonging to the Government of the Commonwealth of Australia. Notwithstanding the interception referred to, there is a positive allegation in the amended application that on 30 September 2013, the applicants arrived at Christmas Island.
It was in the context of that claim and the argument developed in relation to ground 3 concerning the validity of the identification of Christmas Island as a proclaimed port, that the Court is not satisfied there is any real issue that made relevant either the document the subject of the call by Mr Williams or any utility in permitting cross-examination on an issue that did not arise and was not a real issue.
Mr Williams took the Court to the reasoning of the Full Court of the Federal Court of Australia in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (“DBB16”) and in particular to the passage in the joint judgment concerning the declaration of Christmas Island as a port on 22 January 1981 and that subsection (1A) inserted by s.3(2)(c) of the Migration Amendment Act (No.2) 1980 (Cth) under which the power to proclaim a port arose, came into effect on 23 January 1981 and that there was no basis in the circumstances of that case for the Court to consider the legal consequences of that claim.
Mr Williams submitted that this is a case where such timing is material and that the purported declaration of a port in the Gazette that was tendered into evidence on 22 January 1981 was not a valid proclamation as the power to make the proclamation only came into effect upon the commencement of the amending legislation to the Migration Act, which came into effect on 23 January 1981.
There is no analysis in the reasoning of the Full Court of the Federal Court of Australia in DBB16 of s.4 of the Acts Interpretation Act 1901 (Cth) as it then stood and any impact of that provision. Notwithstanding Mr Williams' argument that a contrary intention was manifested by the provisions of the Migration Act and the proclamation of power, I reject that argument, as the language in subsection (1A) inserted by s.3(2)(c) of the Migration Amendment Act (No.2) 1980 (Cth) expressly referred to "published", past tense. Accordingly, there is no proper basis in these circumstances to find that there was a contrary intention to the work done by s.4 of the Acts Interpretation Act 1901 (Cth). That provision as it then stood is as follows:
Exercise of certain powers between passing and commencing of Act
(1) Where an Act (in this section referred to as the Act concerned), being-
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or
(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.
(2) An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect-
(a) on the day on which the Act concerned comes into operation; or
(b) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made, whichever is the later.
(3) Where an Act is to come into operation on a date to be fixed by a Proclamation or other instrument, the Proclamation or other instrument may be made and published at any time after the enactment of the Act.
(4) Where this section applies to an Act by reason of the fact that that Act is expressed to amend another Act in the manner referred to in sub-section (1) and that other Act has not come into operation, this section has effect as if the references in sub-sections (1) and (2) to the coming into operation of the Act concerned were references to the coming into operation of the other Act as amended by the Act concerned.
(5) In sub-sections (1), (2), (3) and (4) a reference to an Act shall be read as including a reference to any provision or provisions of an Act.
(6) In the application of this section, in accordance with paragraph 46 (a), to rules, regulations or by-laws (including rules, regulations or by-laws made by virtue of this section), references in this section to the enactment of an Act shall be read as references to the making of rules, regulations or by-laws and references in this section to an Act other than the Act concerned shall be read as references to rules, regulations or by-laws.
The relevant power or provision in relation to which the term "published" appears in subsection (1A) of s.3(2) of the Migration Amendment Act (No.2) 1980 (Cth) is as follows:
(1A) The Minister may by notice published in the Gazette –
(a) appoint ports in the Territory of Christmas Island as proclaimed ports for the purposes of this Act and fix the limits of those ports…
That language does not manifest an intention to the contrary of the work done by s 4 of the Acts Interpretation Act. If futuristic language had been intended or other mandatory terms to manifest such an intention, it would have been easy to insert such language. Accordingly, to the extent Mr Williams' argument depended upon the Gazette declaration being one that was beyond power due to the timing sequence of the publication, s 4 of the Acts Interpretation Act renders that argument without substance.
I also accept Mr Kaplan's argument in the context of the meaning of an unauthorised maritime arrival in s 5AA of the Migration Act and particularly the content that is given to the meaning of whether a person has entered Australia by sea, as expanded upon in s 5AA(2) of the Migration Act. The reference to the meaning in s 5AA(2)(a) of the Migration Act and then to a person entering the migration zone, and that the effect of the words “entered the migration zone” in that regard clearly means landed in the migration zone.
The Migration Act also defines "excised offshore place" and "excision time" and under subsection (a) expressly refers to the territory of Christmas Island. In those circumstances, I accept Mr Kaplan's argument that it would in any event, not be material whether the Commonwealth gazette was a valid proclamation or not, as the applicant in the present case entered Australia by land at an excised offshore place, being Christmas Island, within the meaning of unauthorised maritime arrival. Accordingly, no jurisdictional error as alleged in ground 3 is made out.

Ground 4

In relation to ground 4, Mr Williams contended that the Authority had failed to take into account the whole of the provisions of s 473DD of the Migration Act and/or each of the limbs thereof in considering whether or not there are exceptional circumstances to have regard to the new information. The Authority's reasons are not to be read with a keen eye for error and must be read as a whole. In the present case, there was an express reference by the Authority to the whole of the provision. There was also, in that regard, express reference by the Authority to both limbs of s 473DD of the Migration Act in the course of the Authority's reasoning in respect of the new information considered and dealt with in paragraphs 5 to 10 of the Authority’s reasons.
The Authority's reasons engaged with the content of the information and on the face of the Authority's reasons there is no proper basis for the Court to find that the Authority failed to take into account the whole of the provisions or failed to take into account s 473DD(a) of the Migration Act or in considering s 473DD(a) of the Migration Act failed to take into account both limbs of s 473DD(b) of the Migration Act. There is no basis to find that the Authority adopted an unduly narrow meaning under the term "exceptional circumstances" under s 473DD of the Migration Act. In the circumstances of the present case, no jurisdictional error as alleged in ground 4 of the amended application is made out.

Ground 5

In relation to ground 5, Mr Williams identified that the heading in ground 5 should refer to honour killings, not apostasy. Mr Williams referred to the findings of the Authority in relation to the applicant's fear of harm from disapproving family in relation to the marriage and honour killings. Mr Williams identified what was said to be the consistency of the evidence and took issue with the adverse findings by the Authority. Mr Williams contended that the applicants had provided a legitimate explanation for the inconsistencies in their evidence and took issue with the adverse findings by the Authority in respect of the risk of harm to the applicants from their family, their uncle and honour killings.
Notwithstanding the references referred to by Mr Williams, the written submissions in substance were an invitation to this Court to engage in merits review. There was no illogicality or irrationality in the reasoning of the Authority in the adverse credibility findings. The adverse findings were not trivial or insignificant matters. There were rational inconsistencies identified as summarised above. The findings were not illogical or unreasonable in light of country information and were open to the Authority.
I do not accept that there was any failure by the Authority to make dispositive findings of the applicants’ claims in relation to their fear of honour killings. The reasons read as a whole do not support that conclusion. I do not accept that there is any integer of the applicants' claims in that regard on which the Authority failed to make dispositive findings in its reasons as summarised above. No jurisdictional error as alleged in ground 5 of the amended application is made out.

Ground 6

In relation to ground 6, Mr Williams submitted that the effect of the Authority's findings was that the applicants could modify their behaviour in order to avoid a real chance of persecution. I do not accept that there is such finding by the Authority on a fair reading of the Authority's reasons. The Authority did not refer to any of the applicants being able to take reasonable steps to modify their behaviour under s 5J(3)(i) of the Migration Act in determining the applicants' claims. No error of the kind alleged in ground 6 is made out.
In so far as ground 6 seeks to take issue with the adverse finding concerning discrimination against women, the adverse findings in that regard were open to the Authority for the reasons given by the authority. The Authority expressly referred to the evidence in making this adverse finding as summarised above. No jurisdictional error as alleged in ground 6 of the amended application is made out.

Ground 7

In relation to ground 7, Mr Williams submitted that the Authority had failed to distinguish between the applicants' claims as non-practicing Muslims and apostasy under both the Refugees Convention and the complementary protection criteria and accordingly had failed to conduct the review as required under Part 7AA of the Migration Act.
The Authority's reasons as referred to above clearly identified the applicants' claim to fear harm by reason of being non-practicing Muslims and the Authority made dispositive findings in respect of those claims. It is apparent that the Authority referred to country information concerning apostasy in circumstances where a person is perceived to have changed religion. The Authority made reference to the applicants' families not being aware that the applicants were not practicing Islam and there was no suggestion that the applicants had in fact, changed religion, so as to engage any further issue of apostasy. The Authority's reasons on their face disclose dispositive findings upon the whole of the applicants' claims. No jurisdictional error as alleged in ground 7 of the amended application is made out.
As the grounds failed to make out any jurisdictional error, accordingly the amended application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 28 March 2019