Federal Court of Australia

ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 made by the Federal Circuit Court on 4 February 2020 be set aside.

3.    A writ of certiorari be issued quashing the affirmation by the Immigration Assessment Authority on 15 December 2016 of the decision of the Minister’s delegate to refuse the appellant’s Safe Haven Enterprise Visa (subclass 790).

4.    The matter be remitted to the Immigration Assessment Authority for review, by a different member of the Authority, of the delegate’s decision under Pt 7AA of the Migration Act 1958 (Cth) in accordance with law.

5.    The First Respondent pay the Appellant’s costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court which, in the absence of agreement, are to be taxed in each case on a lump sum basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal from the Federal Circuit Court (the FCC) raises two questions concerning the way in which account is to be taken of the potential for applicants seeking asylum to avoid persecution by modifying their behaviour so as not to attract attention in the receiving country.

2    The first concerns the proper application of s 5J(3)(a) of the Migration Act 1958 (Cth) (the Act). The second is whether the Immigration Assessment Authority (the Authority) is required, when considering claims for complementary protection pursuant to s 36(2)(aa) of the Act, to apply the principles established by Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395).

3    For the reasons which follow, we consider that the first should be resolved in the appellant’s favour and that it is neither necessary nor appropriate to address the second.

Background

4    The appellant is a national of Iran who arrived in Australia by boat on 23 March 2013. He was an unauthorised maritime arrival.

5    The appellant’s application for a Safe Haven Enterprise Visa (subclass 790) (SHEV) was refused by a delegate of the Minister. That refusal was affirmed by the Authority on 15 December 2016 and the appellant’s application to the FCC for judicial review of the Authority’s decision was unsuccessful: ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 148.

6    The appellant now appeals against the dismissal of his application for judicial review.

7    The appellant’s claim for protection was made on multiple bases. These included a fear of harm by reason of his parents’ Zoroastrian beliefs, his own conversion to Christianity, his interest in freemasonry, his having a number of tattoos on his body (obtained while he was in Iran), his interest in, and activities associated with, music and dance, and his status as a failed asylum seeker in the event that he is returned to Iran. All of these claims were rejected by the Authority. Specifically, the Authority was satisfied that the appellant would not face a real chance of suffering harm in relation to his religious beliefs (or lack of commitment to Islam), because of his claimed interest in freemasonry and the Illuminati, because of his westernised behaviour, appearance or tattoos, because of his political views, because of his interest in music and dance, or because he would be regarded as a failed asylum seeker.

8    The appellant’s amended application for judicial review in the FCC concerned the way in which the Authority had determined his claim based on his interest in music and dance, his claim for complementary protection, and his claim concerning his conversion to Christianity. The appeal to this Court concerns the manner of determination of the first two of these claims only.

The music and dance claim

9    In his entry interview, the appellant said that he had left Iran because his job as a “DJ and dance class” was illegal and he could not work. He said “I love my job and I could not progress over there”.

10    This claim was elaborated in the statement made by the appellant on 20 April 2016 provided in support of his application for a SHEV. Under the heading “Music passion and interests”, the appellant said that he had become very passionate about music from approximately 2001; that he had started to study music, specifically piano and keyboard; that he had learnt how to write and compose music; that he had taught himself to play the guitar and drums; that he had bought equipment so that he could be a DJ at parties; that in approximately 2004 he had started to work as a DJ professionally and had become a leader of a group of DJs in Iran playing for parties and weddings; and that he “loved music and saw [it] as part of [his] identity”, at [9]-[13], [21]. In his statement of his fears of what would happen if forced to return to Iran the appellant said:

[50]    Expressing myself through music is very important to me. I will be arrested, detained and beaten by the Iranian authorities as a pop musician as I was in the past if I was to follow this passion in Iran ...

…

[53]    I will have no freedom in Iran, no opportunity to explore my beliefs and partake in any self-expression. I can not do what is fundamental to my identity, passions and beliefs in Iran.

11    The submission of his migration representative provided to the Minister’s delegate on 12 August 2016 referred to the appellant’s interest in music as “a fundamental characteristic of his identity”. The representative submitted that the appellant was at real risk of persecution if returned to Iran on a number of grounds which included:

As a professional musician who has previously been detained by Iranian authorities for his interest in music, a fundamental characteristic of his identity, and would likely experience further harm.

12    The Authority recorded the appellant’s claim for protection on the basis of his interest in music and dance as follows:

[21]    The applicant fears harm as a professional musician who has previously been detained by Iranian authorities for his interest in music, which he claims is a fundamental characteristic of his identity. He is not conformist, which attracts punishment in Iran, and will have no freedom, opportunity to explore his beliefs and partake in any self-expression or do what is fundamental to his identity, passions and beliefs.

(Emphasis added)

13    The Authority accepted the appellant’s claims that:

(a)    in 2004, he had begun to work professionally as a DJ, leading a group which played at weddings and parties;

(b)    in 2008, he had been acting as the DJ at a party which was raided by the Basij or Sepah; he and the singer had been apprehended and taken to an unofficial place of detention, insulted, questioned why they were playing music and drinking alcohol, and told that they should be lashed. They had been able to avoid the lashings by their families paying money to the Basij or Sepah and had been released 24 hours after their apprehension. He had, however, been required to sign a document stating that he would not continue activities as a DJ;

(c)    in around 2009, he had been arrested by police while acting as a DJ at a party. He was then handed over to the Basij, and taken to a Basij building where he had been questioned, beaten and subjected to a lashing. Again, he was released after his family had paid money but he was told by the Basij that, if he was caught playing music again, his fingers may be cut off. He had been detained for around 24 hours. On this occasion, his hired instruments were confiscated;

(d)    from 2009 onwards, he had continued DJ work but had tried to limit it and had “only really played for family”; and

(e)    in around 2010, he had opened a dance class. To avoid discovery, he had kept the classes small and had invited only people that he knew. However, after four or five months the Basij had come to the studio, and he was beaten and insulted by them. The Basij had cut his hair and beard, had required him to sign an undertaking, and had closed and barricaded the studio doors.

14    The Authority did reject one claim of the appellant relating to his musical activities. This was his claim that he may have been monitored and detained by reason of his connection with his music teacher. The Authority said in respect of this claim:

[25]    … That the applicant had worked professionally as a musician since 2004 yet was arrested on only two occasions in 2008 and 2009 suggests to me that these were random incidents rather than a result of monitoring or targeting. Further, the applicant did not indicate that the authorities made any mention of his music teacher. I find this claim to be speculative and do not accept it.

15    With respect to the question of whether the appellant faced a real chance of suffering serious harm should he pursue his interest in music and dance in Iran in the future, the Authority made findings that:

(i)    prominent musicians and other artists have faced prosecution for their artistic expression when it is perceived as “anti-Islamic” or to have political messaging;

(ii)    some music performances have been shut down, particularly those involving female performers;

(iii)    it is illegal for musicians to perform without government authorisation;

(iv)    there is an “underground” music scene in which musicians hold shows and secret concerts away from the official eye;

(v)    country information in 2016 indicated the ongoing existence of underground dance classes;

(vi)    there have been numerous reports of arrests of musicians performing without a licence.

(vii)    heavy metal and foreign music are considered religiously offensive;

(viii)    police crack down on underground concerts and music groups;

(ix)    there is some country information indicating that the situation has relaxed since 2013, with a large number of mixed-sex pop concerts as well as concerts by artists whose music was previously considered too western being allowed to take place and concert permits being made more readily available;

(x)    while, officially, the government must approve a song’s lyrics as being compliant with the country’s moral values, in practice many bands release albums without seeking such permission;

(xi)    despite the apparent relaxation, there are nonetheless reports of ongoing restrictions and of police continuing to suppress underground concerts and music groups; and

(xii)    DFAT reports, while indicating that interactions with the Basij can be unpredictable, are to the effect that the Basij is presently less visible on the streets than was previously the case, is less assertive, and is generally more respectful in its interactions with Iranians than was the case in the past and that it (DFAT) regularly observes Western music being played in country places.

16    The Authority then concluded:

[32]    The information set out above concerning arrests of underground musicians appears to refer to recording or performing artists with a public profile or international connections. On the information before me, even prior to scaling down his activities following his arrest, the applicant lead a group of musicians who played at functions such as weddings and parties. There is no evidence before me that he has ever sought to distribute his work or hold concerts. I do not accept he has the profile of the type of musicians that have been sought after by the authorities for arrest. Rather, the applicant's arrests appeared to occur in the context of the police otherwise attending functions at which he was playing. The reason for the raid on the dance studio is unclear, but I note that it occurred in 2010, at a time of deteriorating human rights and increased security following the 2009 protests. Although I accept the submissions regarding the unpredictability of the Iranian authorities and their involvement in human rights abuses, in light of the information suggesting lower Basij activity, the frequency at which Western music is publically (sic) played in Iran despite the restrictions, and at least some relaxation of restrictions, I am not satisfied that there is a real chance that the applicant would again come to the attention of the authorities if he were to carry out music and dance activities as he has done in the past, such as performing at private functions such as weddings and parties and conducting small dance classes.

[33]    I accept that these findings entail a need to exercise some discretion, in that the applicant's activities must be carried out 'underground' and with caution. However, I find this to be a reasonable step the applicant could take to modify his behaviour. Much of the music and dance scene in Iran is underground, and the applicant operated this way in the past. He will be able to continue to express and pursue his interest in music and dance, and although taking such steps may limit his ability to earn an income solely from these activities, he also has previous experience in the retail and design industries and I do not accept that the inability to earn a living solely through music and dance will threaten his capacity to subsist or is otherwise unreasonable. I have considered the submission that expression of his interest in music and dance are fundamental characteristics of his identity but find that the applicant will be able to continue to express those interests. I do not accept that doing so underground conflicts with that characteristic or requires him to conceal it or make any of the modifications listed in s.5J(3)(c). I find that there are reasonable steps the applicant could take to modify his behaviour so as to avoid a real chance of persecution.

[34]    I am not satisfied that there is a real chance of the applicant suffering harm in relation to his past or future music or dance activities.

(Emphasis added)

17    The emphasised passage in [33] indicates that the Authority did not make an express finding as to the appellant’s claim that his interest in music is a fundamental characteristic of his identity. Instead, the Authority found that the appellant would be able to continue to express his interest in music and dance, that doing so “underground” would not conflict with “that characteristic”, or require him to conceal “it”, or require him to make any of the “modifications” having the effect listed in s 5J(3)(c) of the Act. The Authority also found that there were reasonable steps which the appellant could take “to modify his behaviour” so as to avoid a real chance of persecution.

Statutory provisions and principles

18    By s 36(2)(a) of the Act, one of the criteria for a SHEV is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee.

19    Since the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Case Load) Act 2014 (Cth) (the 2014 Amendment), the definition of “refugee” for the purposes of the Act and, in particular, s 36(2)(a), has been contained in s 5H of the Act. It provides (relevantly) that, for the purposes of the application of the Act, a person is a refugee if the person is outside the country of his or her nationality and, owing to a “well-founded fear of persecution”, is unable or unwilling to avail himself or herself of the protection of that country.

20    Section 5J states the meaning of the expression “well-founded fear of persecution”. It provides (relevantly):

5J Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

…

21    Of the reasons for fear of persecution listed in s 5J(1)(a), only “membership of a particular social group” was potentially relevant to the appellant’s claim based on his interest in music and dance.

22    That term is defined for the purposes of the Act in ss 5K and 5L. Section 5K is not pertinent presently because it concerns social groups consisting of a family. Section 5L provides:

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)    the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

   (i)    the characteristic is an innate or immutable characteristic;

(ii)    the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)    the characteristic distinguishes the group from society; and

(d)    the characteristic is not a fear of persecution.

23    Section 5J(3) is in the nature of a qualification of the expression “well-founded fear of persecution” contained in subs (1), in that it provides that a person does not have such a fear if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. That qualification is itself qualified by the provision that the modifications which the person may make are not to have any of the effects mentioned in subparas (a), (b) or (c). As explained by Bromwich J in AWL17 v Minister for Immigration and Border Protection [2018] FCA 570 at [41], s 5J(3) has the effect that a reasonable modification of conduct can be expected provided that it does not go so far as to compromise the essential terms of the Refugee Convention. That is to say, reasonable steps by way of modification of behaviour to avoid a real chance of persecution can be expected, but not if doing so would have any of the effects listed in s 5J(3)(a)-(c). If the modification would have such an effect, the reasonableness or otherwise of the steps by which the modification may be effected does not arise. An applicant is not expected to take those steps. Otherwise, the ability of an applicant to take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution is to be taken into account.

24    For reasons to be stated shortly, s 5J(3) has to be understood in the light of S395. In that case, the Refugee Review Tribunal had found that, while homosexuality was unacceptable in Bangladesh, the appellants (who were homosexual) could be expected to avoid a risk of persecution on account of their sexuality by continuing to act discreetly, as they had in the past. Their appeal contending error of law by the Tribunal succeeded. McHugh and Kirby JJ, who formed part of the majority, said that the Tribunal had erred by failing to consider why the appellants would live discreetly and whether that “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly” (emphasis added), at [35]. Their Honours continued:

[43]    The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

                                                                         (Italicised emphasis in the original and bold emphasis added)

25    Gummow and Hayne JJ, who also formed part of the majority, held:

[82]    Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.

                                                                                                                     (Emphasis in the original)

26    S395 was considered (and distinguished) by the High Court in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 217, a case concerning the application of the internal relocation principle. The plurality (French CJ, Hayne, Kiefel and Keane JJ) explained the reasoning in S395 as follows:

[17]    The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.

                                                                                                       (Emphasis added and citation omitted)

27    In his separate reasons in SZSCA, Gageler J said:

[36]    … The principle for which [S395] stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution …

His Honour went on to note, however, that the S395 principle should not be extended beyond its rationale and that it had no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution, at [37].

28    The appropriateness of having regard to S395 in the present case is indicated by the reference to it in the Explanatory Memorandum concerning the introduction of s 5J, which stated at [1194]:

In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (S395), the High Court held that an assessment under the Refugees Convention does not extend to what a person could or should do if they were returned to their country of origin, but what they would do. New subsection 5J(3) is intended to clarify that any assessment of whether a person has a well-founded fear of persecution is to take into account not only what a person would do to avoid a real chance of persecution upon returning to a receiving country, but also what reasonable steps they could objectively take to avoid the persecution. As new subsection 5J(3) imports a consideration of “reasonable steps” and is qualified by new paragraphs 5J(3)(a) and 5J(3)(b), the Government considers that new subsection 5J(3) is not inconsistent with the principles enunciated by the majority in the High Court’s finding in S395.

                                                                         (Bold emphasis in the original and italicised emphasis added)

29    Turning to s 5L, it requires four cumulative elements to be present in order for a person to be treated as a member of a particular social group. The third of those elements contains internal alternatives.

30    The Explanatory Memorandum indicates that a purpose of s 5L was “to clarify and limit” the definition of “particular social group” adopted in decisions in Australia in relation to the same term in the Refugee Convention at 11:

New section 5L seeks to clarify and limit the definition of membership of a particular social group which is one of the grounds for a well-founded fear of persecution set out in new paragraph 5J(1)(a). The new section 5L applies to membership of a particular social group other than the person’s family. Currently there is minimal legislative guidance for decision makers to determine what constitutes a particular social group in this circumstance, which has resulted in a broad interpretation of the term being taken by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs [2004] 217 CLR 387. The breadth of this interpretation has led to long lists of increasingly elaborate potential particular social groups being drawn for the purposes of protection visa applications thereby making implementation of the term complex and difficult for decision makers to apply, and is broader than that being applied in other jurisdictions (eg. Canada, the United States of America, New Zealand and the European Union). The new section 5L is based on the approach taken in these other jurisdictions and is intended to reduce the incentive and capacity for applicants to advance extensive lists of possible particular social groups.

                                                                                                                      (Emphasis in the original)

31    The Explanatory Memorandum also indicates that s 5L is derived substantially, but not wholly, from the reasons in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 concerning the concept of “particular social group” in the Refugee Convention.

The reasons of the FCC Judge

32    The FCC Judge considered that the appellant had presented his claim on the basis that his interest in music and dance was a characteristic which was fundamental to his identity (s 5J(3)(a)) and not an innate or immutable characteristic (s 5J(3)(b)), and that the Authority had dealt with it on this basis, at [59]-[68].

33    The FCC Judge then rejected the appellant’s contention that the Authority had committed jurisdictional error in failing to find that any modification of his behaviour associated with his interest and career in music and dance would conflict with that fundamental characteristic of his identity, at [79]. His Honour noted a number of matters indicating that it had been open to the Authority to find that the appellant could exercise discretion and carry out his activities “underground” as a reasonable step of modification of his behaviour without acting in conflict with characteristics which were fundamental to his identity, at [79]. The Judge concluded:

[81]    I consider that the Reasons demonstrate the Authority adopted, in effect, a four phased analysis of the matter by giving consideration to whether: (a) the applicant held a well-founded fear of persecution by reason of his membership of a particular social group: s 5J(1)); (b) the applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution: s 5J(3); (c) modification of the applicant’s behaviour were such as would (i) conflict with his identity as a musician and dancer in a way that was fundamental to that identity: s 5J(3)(a); (ii) require him to conceal those aspects of his character (s 5J(3)(b).

[82]    In brief, the Authority found that the applicant did not face a real risk of harm. It considered country information in doing so and recognised that the applicant’s profile was very different from persons who conducted at public concerts or produced and recorded music. The Authority properly had regard to the manner in which the applicant had conducted himself historically and, in my view, did so in undertaking its predictive task of ascertaining whether, objectively, it was likely that he would, in fact, face a well-founded fear of persecution in the future. Contrary to the applicant’s submissions, I consider that the Authority did ask itself how he was likely to conduct himself in the future and whether that would conflict with his identify as a musician and dancer.

[83]    As in Appellant S395, the gravamen of the dispute in the present case is about how the Reasons should be properly understood. In my opinion, the Authority did not impose a requirement that the applicant must exercise discretion so as to avoid a risk of persecution. To the contrary, the Reasons make plain that the Authority was concerned to explore and determine how the applicant was likely to conduct himself in the practice of his music and dance if he returned to Iran. To have analysed the matter in that way was entirely consistent with authority and did not entail jurisdictional error.

                                                                                                                             (Citation omitted)

34    Accordingly, Ground 1 in the application for judicial review failed. It is not necessary to refer to the Judge’s reasons concerning Ground 2.

35    Ground 1 in the appellant’s Notice of Appeal replicates Ground 1 in the appellant’s application for judicial review in the FCC, save only for the inclusion of the prefatory words that the FCC Judge had erred by failing to uphold the ground.

Ground 1 of the appeal

36    By Ground 1 of the appeal, the appellant contends that, having accepted or assumed that his expression of interest in music and dance was either a fundamental characteristic of his identity or an innate and immutable characteristic of his person, it had not been open to the Authority to find that he could avoid a real chance of persecution by “exercis[ing] some discretion” by carrying out his activities “underground” and “with caution”.

37    As is apparent, Ground 1 seeks to invoke the qualification on the qualification in s 5J(3) to which we referred earlier. It assumes (as the ground itself recognises) that the Authority had accepted or assumed that the appellant’s interest in music and dance was either a fundamental characteristic of his identity or an innate or immutable characteristic.

38    Counsel for the appellant submitted that the Authority’s decision was affected by two jurisdictional errors. The first was that the Authority had reasoned that the appellant could continue to operate in the “underground music scene” as he had in the past without considering, as required by S395, whether that conduct had, and would be, influenced by his fear of harm. The second was that the Authority had taken into account modifications of behaviour which could be expected of the appellant even though that was excluded by s 5J. Counsel emphasised in this respect the Authority’s finding that there were reasonable steps which the appellant could take to modify his behaviour, including by exercising “discretion”, and by carrying out his activities “underground” and with “caution”.

39    The suggestion in Ground 1 that the Authority had accepted or assumed that the appellant’s interest in music and dance was an “innate or immutable characteristic” of the appellant can be disposed of shortly. The Authority made no such finding and there is nothing in its reasons to support the view that it had made the claimed assumption. The Authority did not even use the terms “innate” or “immutable” or any equivalents in relation to the appellant’s interest in music and dance. The appellant himself had not made a claim in those terms. Instead, with one exception, his agent had submitted that his interest in dance and music were “fundamental characteristics of his identity”. The extracts from the appellant’s statement set out above indicate that that was also the way in which he had sought to characterise his interest in music and dance. Finally, the submissions made on the appellant’s behalf on the appeal did not seek to support Ground 1 on the basis that the appellant’s interest in music and dance was either innate or immutable.

40    It seems that little attention was given during the progress of the appellant’s application for a SHEV to the question of whether his interest in music and dance made him a member of a particular social group. In his written submissions to the delegate and to the Authority, the appellant’s representative made no reference to a “particular social group”, let alone seek to identify a group to which the appellant may belong and its defining characteristics. Likewise, the reasons of the Minister’s delegate made no reference in express terms to a particular social group to which the appellant may belong.

41    The only express reference by the Authority to membership of a particular social group was in [5] of its reasons, which comprised a bare recitation of the components of a well-founded fear of persecution for which s 5J provides. The Authority did not otherwise discuss the term, identify a particular social group to which the appellant may belong, or discuss whether the appellant had characteristics which brought him within such a group. Initially, counsel for the appellant submitted that the Authority had, in [21] set out earlier, made a finding of the appellant’s membership of a particular social group. However, later counsel acknowledged, in our view correctly, that [21] was in the nature of an introductory recitation by the Authority of the appellant’s claims and not a finding. The Authority’s reasons at [27], to which counsel also referred, may possibly involve an assumption as to the appellant’s membership of a particular social group but cannot reasonably be regarded as a finding on that issue.

42    As noted earlier, the FCC Judge considered that the Authority had accepted that the appellant had made his claim for protection on the basis that he was a member of a particular social group, identified as “persons who expressed and practised their interest in dance and music in Iran”, [68]. The extracts from the Authority’s reasons set out earlier suggest that this involved a benign understanding of its reasons as it is apparent that the Authority did not ever make an express finding concerning the question of whether the appellant was, or was not, a member of a particular social group.

43    The absence of attention to this issue in the consideration of the appellant’s claim which culminated in the decision of the Authority is unfortunate because, as was noted by McHugh and Kirby JJ in S395 at [31], in a case of the present kind, “defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution”. Their Honours went on to say:

Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group.

                                                                                                                                 (Citation omitted)

44    In our view, that reasoning is equally applicable to the statutory expression of the term “well-founded fear of persecution” in s 5J. Apart from any other consideration, it is not easy to see how the assessment can be made of whether an applicant can take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, if the basis on which it is claimed that there is a well-founded fear of such persecution has not been identified.

45    However, we are willing to consider Ground 1 on the basis referred to in the parties’ submissions, namely, that the Authority did conduct the review on the basis that the appellant was a member of a particular social group. If that was so, the Authority must have accepted that each one of the cumulative elements in s 5L was satisfied. That leaves two matters as uncertain.

46    The first is the precise nature and content of the characteristic which was found to satisfy each of those cumulative elements. A characteristic expressed as “an interest in music and dance” seems too general for the purpose of s 5L. So also does an “expression and practice of interest in dance and music”, which is, in effect, the finding of the FCC Judge, and which is similar to the description of the Authority itself in [33]. An expression of that kind seem more apt to describe the outward manifestation of a characteristic, rather than the characteristic itself.

47    The second matter of uncertainty concerns which of the three internal alternatives in s 5L(c) the Authority must, on the hypothesis on which we are proceeding, have considered was satisfied. For the reasons given earlier, it could not have been the innateness or immutability of the claimed characteristic (subpara (c)(i)). It is improbable that it was subpara (c)(iii) (the characteristic distinguishing the group from society), not only because there was no discussion at all by the Authority of that element, but also because it is not readily apparent that an interest in music and dance is a characteristic which distinguishes a group from the rest of society. Counsel for the appellant submitted that the Authority must have accepted implicitly that subpara (c)(ii) (a characteristic so fundamental to a member’s identity or conscience that the member should not be forced to renounce it) was satisfied. Counsel for the Minister was willing to accept that that was so.

48    Let it be assumed that this was the way in which the Authority reasoned. That gives rise to a further difficulty.

49    It should be accepted that applicants for refugee status may have more than one characteristic which is fundamental to their identity. That means that the expression “[a] characteristic [which] is so fundamental to a members identity … [that] the member should not be forced to renounce it” appearing in s 5L(c)(ii) and the expression “a characteristic that is fundamental to the person’s identity” appearing in s 5J(3)(a) need not necessarily encompass the same characteristic. It is at least theoretically possible that the fundamental characteristic with which the modifying action may conflict in a given case may be different from that which satisfies s 5L(c)(ii).

50    However, that theoretic possibility did not arise in the appellant’s claim. In the circumstances of his claim (in which an interest in music and dance was relied on for the purposes of both s 5L and s 5J(3)(a)), the two matters necessarily had a close relationship and should have involved the same, or substantially the same, considerations. It is possible that s 5L(c)(ii) connotes a stricter view of the fundamental characteristic than does s 5J(3)(a) but, if that be so, a characteristic satisfying the former would encompass a characteristic satisfying the latter. In the circumstances of the appellant’s claims, a decision-maker could not consider the application of s 5J(3)(a) without regard to the decision-maker’s findings concerning the application of s 5L(c)(ii). Yet, on the premise that the Authority did proceed on the basis that the appellant was a member of a particular social group because, amongst other things, his interest in music and dance was so fundamental to his identity that he could not be expected to renounce it, that is what the Authority did. Had the Authority considered that the appellant’s interest in music and dance was a characteristic fundamental to his identity for the purposes of s 5L(c)(ii), it would not have been necessary for it to say in [33] that it had “considered the submission” that the appellant’s expression of his interest in music and dance was a fundamental characteristic of his identity: instead, (on the hypothesis being considered) it would have known that it had already found that that was the case.

51    We are left with the firm impression that, if the Authority did make a finding for the purposes of s 5L(c)(ii), then it must have overlooked that finding when it considered the application of s 5J(3). That is to say, the Authority did not consider that the characteristic to be considered in relation to a possible conflict in the application of s 5J(3)(a) was one which was so fundamental to the appellant’s identity that he could not be expected to renounce it.

52    The first matter of uncertainty mentioned earlier also gives rise to a difficulty. Looked at in the abstract, until a decision-maker identifies with some precision the characteristic which is fundamental to the person’s identity, it is difficult for the decision-maker to assess whether a postulated modification of behaviour would conflict with it. In the circumstances of this case, until the Authority had made a finding as to the precise nature of the characteristic concerning the appellant’s interest in music and dance, it did not have a sound basis on which to make the assessment of whether confining his music and dance activities to private functions undertaken “underground” and with “caution” conflicted with a fundamental characteristic of the appellant’s identity. That is to say, it could not assess the significance of the appellant having to carry out his activities underground and with caution.

53    In our opinion, these matters indicate that the Authority did not discharge its statutory task. Because it did not make findings concerning the particular social group to which the appellant could belong which was said to be the basis for his claimed well-founded fear of persecution, it could not assess, as required by s 5J(3), whether the steps it considered the appellant could take to modify his behaviour may avoid a real chance of persecution for that reason. If the Authority did accept that the appellant’s interest in music and dance (or both his interest in and expression of music and dance) were a characteristic of his identity which was so fundamental to him that he should not be forced to renounce it, the Authority did not apply that understanding when considering the issue of conflict under s 5J(3)(a).

54    For these reasons, it was not open to the Authority to find that that appellant could avoid a real chance of persecution by the modifying actions to which it referred in [33] of its reasons.

55    It is appropriate also to consider Ground 1 on the basis for which the parties did not contend, namely, that the Authority did not make a finding that the appellant’s interest in music and dance was so fundamental to his identity that he could not be expected to renounce it. In our view, this is a more natural understanding of the Authority’s reasons. That is especially so given the absence of an express finding by the Authority in circumstances in which it is to be expected that there would have been such a finding had the Authority turned its mind to the issue. Moreover, the Authority did say in [33] that it had considered the issue, but did not make a finding. Instead, the Authority moved immediately to a different question, being the appellant’s ability to continue to express his interest in music and dance.

56    On this view of the Authority’s reasons, its error lies in its failure to identify the particular social group, this being the step which McHugh and Kirby JJ in S395 said was fundamental to the determination of whether a member of the group has a well-founded fear of persecution. Again, it is not easy to see how the Authority could have decided that the appellant’s expression of his interest in music and dance “underground” would not conflict with a characteristic which was fundamental to his identity (as it did in [33]) without having made a finding concerning the existence and nature of that characteristic.

57    This means that Ground 1 should succeed on the basis that it was not open to the Authority to make the finding which it did about the appellant’s ability to avoid a real chance of persecution. Our reasons for that conclusion differ a little from those advanced by the appellant, but are encompassed by the Ground and the submissions made by the appellant on the appeal concerning them. It is accordingly unnecessary to consider further the submissions of the appellant on the appeal, summarised in [37] above.

Ground 2 - complementary protection

58    By Ground 2 in the Notice of Appeal, the appellant complained that the Authority should have applied the S395 principle to its consideration of the complementary protection criteria and, accordingly, should have taken into account the reason for his modification of his behaviour in the past.

59    In our view, it is neither necessary nor appropriate to address this ground.

60    In the first place, the appellant’s success on Ground 1 means that the appeal should be allowed.

61    Secondly, the High Court has granted special leave to appeal from the decision in DQU16 v Minister for Home Affairs [2020] FCA 518, which appears to involve consideration of the issue raised by Ground 2 in this appeal. There is little point in this Court considering an issue which will in the relatively near future be determined by the High Court.

Conclusion

62    For the reasons given in relation to Ground 1, we allow the appeal and make orders as follows:

(1)    The appeal be allowed.

(2)    Orders 2 and 3 made by the Federal Circuit Court on 4 February 2020 be set aside.

(3)    A writ of certiorari be issued quashing the affirmation by the Immigration Assessment Authority on 15 December 2016 of the decision of the Minister’s delegate to refuse the appellant’s Safe Haven Enterprise Visa (subclass 790).

(4)    The matter be remitted to the Immigration Assessment Authority for review, by a different member of the Authority, of the delegate’s decision under Pt 7AA of the Migration Act 1958 (Cth) in accordance with law.

(5)    The First Respondent pay the Appellant’s costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court which, in the absence of agreement, are to be taxed in each case on a lump sum basis.

Associate:

Dated:    16 October2020