FEDERAL COURT OF AUSTRALIA

ASW17 v Minister for Home Affairs [2018] FCA 1815

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from the whole of the judgment of the Federal Circuit Court in ASW17 v Minister for Immigration & Anor [2018] FCCA 1257 delivered on 18 June 2018 in which the primary Judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority) which in turn affirmed a decision of a delegate of the first respondent (delegate) to refuse to issue a temporary protection visa (visa) pursuant to the Migration Act 1958 (Cth) (Migration Act).

Background

2    The appellant is a citizen of Iran and was an unauthorised maritime arrival. The appellant attempted to immigrate to Australia by boat when the vessel he was travelling on was intercepted by authorities and transferred to immigration detention on 20 December 2012. He was granted a humanitarian visa, and subsequently a bridging visa, on 25 February 2013 and was released from detention the following day.

3    Approximately two years later on 21 February 2015, the appellant was charged with “five counts of resisting arrest, drunk and disorderly behaviour, three counts of assaulting police and refusing to state his name and address” (AB 244 at [7]). His bridging visa was cancelled on 20 May 2015 and he was returned to immigration detention.

4    Relevantly, on 16 May 2015 the appellant lodged an application for a protection visa the subject of this litigation. As summarised by the Authority in its decision record, the appellant claimed that he:

    is a non-practising Shia Muslim from Iran;

    had previously been arrested and/or held in custody in Iran for consuming alcohol, and demonstrating western behaviour by attending parties and mixing with the opposite gender;

    was constantly being harassed by the police;

    was recorded at a café during an outburst when he criticised the Iranian government; and religion, after which the authorities were after him as an atheist, infidel and apostate;

    was afraid, and left Iran

    is concerned that if he returned to Iran he would be severely punished due to the recording, and because he is a failed asylum seeker.

5    The delegate refused to grant a protection visa on 8 August 2016, and the applicant applied to the Authority for review of the decision.

Before the Authority

6    The Authority gave its decision on 18 November 2016.

7    The Authority referred to s 5H(1) of the Migration Act which provides that a person is a refugee if:

    in a case where the person has a nationality, he or she 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; or

    in a case where the person does not have a nationality, he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Section 5H(1) noted s 5J of the Migration Act which defined a “well-founded fear of persecution” as involving a number of components including that:

    the person fears persecution and there is a real chance that the person would be persecuted;

    the real chance of persecution relates to all areas of the receiving country;

    the persecution involves serious harm and systematic and discriminatory conduct;

    the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion;

    the person does not have a well-founded fear of persecution if effective protection measures are available to the person; and

    the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

8    The Authority noted at [9] of its decision that the appellant had been arrested on a number of occasions for alcohol consumption and sentenced to prison, and had received lashes as punishment. At [10] the Authority referred to the appellant’s varied account of his previous arrests, and the appellant’s claim of hospitalisation prior to his arrival interview such that he did not have a proper chance to provide information at his arrival interview. The Authority found that while the appellant may have been released from hospital just prior to the arrival interview, he was able to respond coherently to all questions which were put to him during the interview and did not appear to be unfit or challenged in completing the arrival interview.

9    At [11] the Authority said that based on the appellant’s inconsistent and varied accounts he doubted that the appellant had ever been arrested or imprisoned for consuming alcohol in Iran.

10    The Authority referred to the incident described by the appellant as occurring at the café, a claim by the appellant that he was assaulted by the police, and his parents’ that he would be criminally charged. The Authority noted further however that there was no evidence before it that the appellant had been charged, summonsed or criminally sentenced in absentia (at [15]).

11    Given the internal inconsistencies in the appellant’s evidence, inconsistencies with country information, and lack of key details the Authority did not accept as credible the appellant’s claim that he had been assaulted, or the café incident, or the prospect that he was subject to pending charges in Iran.

12    The Authority said at [17]:

Consuming alcohol can carry a punishment of up to 80 lashes under Islamic republic laws. Despite the legal ban on alcohol consumption, reports indicate that 200,000 people in Iran are involved in the sale of alcoholic beverages. Iranians between the ages of 17 and 35 are said to comprise the biggest part of the market for alcohol. Alcohol consumption is becoming a normal part of everyday life for more and more Iranians and while drinking, selling and importing alcohol is illegal, one can find alcohol beverages within an average of 30 minutes in major Iranian cities. DFAT reports that Iranians who wish to obtain alcohol can do relatively easily and alcohol smuggling is widespread. Iran has the 19th highest alcohol consumption in the world.

13    The Authority noted the appellant’s claim that he was seeing a psychologist to quit his alcohol addition, however the Authority accepted that the appellant could continue to consume alcohol upon return to Iran. Nonetheless in view of the widespread nature of alcohol consumption in Iran and the ease in which it is available to the general population, the Authority was not satisfied that any consumption of alcohol by the appellant would come to the adverse attention of Iranian authorities.

14    The Authority accepted at [20] that the appellant might have been arrested and held in custody for short periods of time on the basis of being at parties and mixing with females.

15    At [23] the Authority observed:

DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled ‘Westernised’ Iranians. This term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to and try to live what could be called a modern lifestyle. Many poorer Iranians also aspire to such a lifestyle but live more traditionally. However, youth in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour. It is important to note the significance of Iran’s sizeable youth population in this regard. Enforcement can be unpredictable and related to the prevailing political atmosphere of the time.

16    The Authority accepted that the appellant could attract the adverse attention of the authorities in respect of his western behaviour but noted that, according to the appellant’s evidence, in the past this had resulted in him being taken to the police station and released after a few hours, which did not amount to “serious harm”. The Authority was also not satisfied that the appellant’s period of residence in Australia would make any difference to the manner he was perceived as “western” in Iran.

17    The Authority noted that the appellant had not renounced Islam or converted to another religion, and had not previously faced any harm from his family or the authorities on the basis of his religious beliefs.

18    The Authority considered whether the appellant would face adverse official attention returning to Iran, but noted that he had left Iran legally, and further that strong anecdotal evidence suggested that officials do not attempt to prosecute a voluntary returnee. Further, the Authority noted that it is not a criminal offence in Iran for an Iranian to ask for asylum in another country.

19    The Authority was not satisfied that the appellant would face any harm upon return to Iran on the basis of seeking asylum or for an extended stay in Australia, and further that previous events in Iran including his alcohol consumption would not give rise to a real chance of harm.

20    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1), and did not satisfy s 36(2)(a) of the Migration Act.

21    The Authority considered whether the appellant was entitled to complementary protection but found that he would not face a real chance of harm upon return to Iran, and that there was no real risk of significant harm. Accordingly, the appellant did not meet the requirements of s 36(2)(aa) of the Migration Act.

Before the Federal Circuit Court

22    On 20 February 2017, the appellant filed an application for judicial review (later amended on 28 March 2018) of the Authority’s decision in the Federal Circuit Court. The appellant relied on the following grounds of review:

1.    The Immigration Assessment Authority acted legally unreasonably or illogically in that it failed to give proper, genuine and realistic consideration to the applicant’s claim of feared persecution if he were to consume alcohol in Iran.

2.    The Immigration Assessment Authority acted legally unreasonably or illogically by failing to consider obtaining information in relation to whether the applicant would face harm if he were to consume alcohol upon return to Iran.

3.    The Immigration Assessment Authority constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant’s claims, being that he is likely to use alcohol if returned to Iran, and that if authorities became aware of this, he would suffer serious consequences.

4.    The Immigration Assessment Authority constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant’s claim, being that he fears harm on the basis of his suspected apostasy, of which alcohol use is a factor. In so doing, the IAA failed to consider the nexus between alcohol use and the applicant’s imputed political or religious opinions, and the resulting likelihood that he would be punished for consuming alcohol.

23    In respect of these grounds of review the primary Judge found, in summary, as follows.

24    In respect of ground of review 1: the Authority’s reasoning at [19] was open to two interpretations, namely that the occasional consumption of alcohol by the appellant would not bring him to the adverse attention of the Iranian authorities because the law proscribing alcohol consumption was not rigorously enforced, or the applicant’s occasional consumption would not be detected because of the sheer number of consumers of alcohol. Care must be taken in applying cases regarding legal unreasonableness and the exercise of discretionary powers to impugn reasoning of the Authority on whether a visa applicant satisfies the criteria for a visa because decisions of that kind do not involve the exercise of a discretion – the Authority is obliged to refuse to grant a visa if it is not positively satisfied that a visa applicant satisfies the criteria for a protection visa. His Honour held that neither interpretation of the Authority’s reasoning was so irrational or illogical that a reasonable mind could not engage with it – rather its conclusions were open on the material before it. It followed that the Authority was entitled to conclude that the appellant’s risk of suffering serious or significant harm was neither real nor significant. (I note, in particular [56]-[61] of the primary judgment).

25    In respect of ground of review 2: the primary Judge noted that the appellant relied on Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 where the Full Court examined (inter alia) circumstances where a new issue arose for the first time before the Authority, and whether the Authority should consider whether to exercise its available powers to invite the relevant applicant to give new information in relation to that issue or, more generally outside the framework of information, to invite a response or provision of submissions. In particular the Full Court observed:

81.    We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.

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

26    Section 473DC of the Migration Act deals with the Authority getting new information, and provides:

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)     at an interview, whether conducted in person, by telephone or in any other way.

27    The primary judge observed at [75] that care was required in understanding the limit of the principle decided in CRY16 in that the critical point there was that the possibility of relocation to a particular place within Lebanon had not been identified to the visa applicant before or during the review conducted by the Authority. In the case before his Honour however, his Honour said at [77] that the appellant had had ample opportunity to give whatever evidence he wished in relation to his fear of harm arising from consumption of alcohol; he gave that evidence (including to the effect that risk of harm arising from alcohol consumption was not the reason he left Iran); and he suffered no impairment in giving such evidence or in understanding that the visa application stage may be his only opportunity to advance whatever claim to fear harm that he had. The delegate clearly explained that to him, and the appellant indicated that he understood. His Honour found that the features which the Full Court found made the Authority’s failure to consider exercising its discretion under s 473DC unreasonable were absent in this case.

28    In respect of ground of review 3, the primary Judge noted the contention of the appellant that the Authority had erred by ceasing its consideration at whether or not the applicant would use alcohol upon his return to Iran, and failed to take into account an integer of his claims (being that he would continue to use alcohol, and that if he were discovered by the authorities, he would suffer serious consequences. His Honour noted that this ground of review was similar to ground 1, and should be rejected on a similar basis, namely that the Authority did not overlook the fact that the applicant could continue to use alcohol in Iran notwithstanding that he wished to quit drinking, and did not ignore the consequences for the appellant if he were detected consuming alcohol in Iran.

29    In respect of ground of review 4, the primary Judge accepted at [102] that the Iranian proscription of the drinking of alcohol derives from Sharia law, which in turn is based upon the Koran, such that it followed there was a link between the consumption of alcohol in Iran and the attribute of religion in the criteria for a protection visa. His Honour found the Authority considered the appellant’s claim as a claim based on religion, and further that the Authority dealt with the religious significance of the appellant’s claims in the context of the secular/religious divide in Iran wherein alcohol consumption forms part of the secular lifestyle. The Authority rejected the appellant’s claim based on his claimed irreligiosity which, in his Honour’s view, included the integer of alcohol consumption.

30    In conclusion, his Honour said that the appellant had failed to establish that the decision of the Authority was affected by jurisdictional error, and dismissed the application.

Appeal to the Federal Court

31    The appellant filed a notice of appeal to the Federal Court on 5 July 2018. He relied on the following four grounds of appeal that are substantially identical to the grounds of review that were before the Federal Circuit Court:

1.    The Learned judge erred by not finding that the Immigration Assessment Authority acted legally unreasonably or illogically in that it failed to give proper, genuine and realistic consideration to the applicant’s claim of feared persecution if he were to consume alcohol in Iran.

2.    The Learned judge erred by not finding that the Immigration Assessment Authority acted legally unreasonably or illogically by failing to consider obtaining information in relation to whether the applicant would face harm if he were to consume alcohol upon return to Iran.

3.    The Learned judge erred by not finding that the Immigration Assessment Authority constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant’s claims, being that he is likely to use alcohol if returned to Iran, and that if authorities became aware of this, he would suffer serious consequences.

4.    The Learned judge erred by not finding that the Immigration Assessment Authority constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant’s claim, being that he fears harm on the basis of his suspected apostasy, of which alcohol use is a factor. In so doing, the IAA failed to consider the nexus between alcohol use and the applicant’s imputed political or religious opinions, and the resulting likelihood that he would be punished for consuming alcohol.

32    The appellant sought the following orders from this Court:

1.    The Appeal be allowed.

2.    The orders of the Federal Circuit Court made on 18 June 2018 be set aside and in lieu thereof:

a.    A writ of certiorari issue quashing the decision of the Second Respondent; and

b.    A writ of mandamus issue, remitting the matter to the Second Respondent and requiring it to determine the matter according to law.

3.    The First Respondent pay the Appellants’ costs of this appeal and the proceeding below.

Request for pro bono referral certificate and adjournment

33    On 9 November 2018, the appellant filed an affidavit in which he deposed:

 1.    I am the applicant in this proceeding before the Court.

2.    The application previously lodged an earlier application requesting the Honourable Court to refer the applicant for legal assistance on a pro bono basis under s4.12 Federal Court Rules 2011 (Cth) in the interest of the administrative justice.

3.    The applicants next hearing is on the 16th November 2018 and requests an adjournment if a certificate of 4.12 is not issues.

(Errors in original; emphasis added.)

34    In support of these statements, the appellant continued:

 (i)    The applicant is in detention and was unrepresented at all relevant times.

(ii)    The applicant has been restricted to limited resources particularly within the meaning under s256 of the Migration Act 1958 (Cth) where the duty of care has failed to permit the applicant to prepare a proper case and present it to the Court.

(iii)    The applicant is not a qualified migration agent but need one to prepare submissions and list of authorities to support the grounds that have been provided to the Court.

(Errors in original)

35    At the hearing, the appellant reiterated his request for the Court to refer his case for pro bono assistance and grant an adjournment for this purpose. Counsel for the Minister stated that if the Court considered it appropriate to issue a referral pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) (Rules) the Minister would not oppose an adjournment.

36    The Court has a broad discretionary power in determining whether to issue certificates for pro bono assistance: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [94]. Rule 4.12 of the Rules provides that:

(1)    The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

(2)    When making a referral under subrule (1), the Court may take the following matters into account:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding;

(d)    any other matters the Court considers appropriate.

(3)    The referral certificate may state the kind of legal assistance for which the party has been referred.

(4)    The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

37    Though r 4.13 of the Rules stipulates that “[a] party is not entitled to apply to the Court for a referral under rule 4.12,” raising such a question can be sufficient to “initiat[e] the Court’s consideration of the exercise of its discretion”: Fuller at [94].

38    In Stankovic v The Hills Shire Council [2013] FCA 765, the self-represented applicant asked the Court to grant pro bono legal assistance which the Court understood to be a request to “issue a referral certificate under r 4.12 of the [Rules]” (at [8]). In that case, Yates J refused the request noting at [9] that:

•    The issuing of a certificate at that time, if it were to be of any meaningful effect, would necessarily have required the appointed hearing to be adjourned. The respondents were present in Court by themselves or by their legal representatives, at the suit of the applicant, in the reasonable expectation that his application for leave to appeal and interlocutory application would be heard, as appointed …

•    I was not confident that the issuing of a certificate would result in the applicant being offered legal assistance in a timely manner or, indeed, at all, having regard to the history of the litigation in which he had been involved and the claims that the applicant was seeking to make, as detailed in the primary judge’s reasons. The applicant seemed to assume that the Court could simply require legal representation to be provided to him. I informed him that he had no right to such representation: The State of New South Wales v Canellis and Others (1994) 181 CLR 309 at 328. Certainly, he had no entitlement to have a referral certificate issued: r 4.13 of the Federal Court Rules.

…

•    I had had the benefit of reading the primary judge’s reasons in advance of the hearing, and thus had an appreciation of the nature of the issues that had been raised in the proceeding.

(Emphasis added.)

39    In ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099, Flick J noted that:

… the mere fact that a party is unrepresented is not a sufficient reason of itself to warrant a referral for legal assistance. The claims as advanced before the Federal Circuit Court and this Court on appeal are so lacking in merit that any referral would not be an appropriate invocation of the pro bono assistance that barristers provide to unrepresented parties in particular and (more broadly) the community and this Court. The existence of a pro bono referral system, and the fact that members of the bar are prepared to offer their services for free, is a resource which should be cherished and not abused. Referrals should be reserved, generally, for those cases which are perceived to have some merit and in circumstances where the Court would be assisted by the input of a legal practitioner.

(Emphasis added.)

40    Having regard to the circumstances of this case, the Rules and previous authorities of this Court in relation to such matters, I do not consider that this is an appropriate case for the Court to issue a referral certificate for pro bono assistance. In particular:

    The appellant submitted from the Bar Table that he had made attempts to secure pro bono assistance already, but had been unsuccessful. I am not persuaded that the issue of a referral certificate would result in greater prospects of success in obtaining pro bono assistance for the appellant.

    The appellant was legally represented before the primary Judge, and decision of the primary Judge is detailed and thorough. The appellant seeks primarily to rely on the same grounds as were before his Honour. While I note the potentially great difficulty a person in the position of the appellant can experience in endeavouring to prosecute an appeal, particularly involving complex issues of jurisdictional error, it is not apparent to me that the grounds of appeal from his Honour’s decision are meritorious such that I would receive particular assistance from the input of a legal practitioner re-arguing those same grounds.

Substantive appeal

41    Turning now to the substantive appeal, at the hearing the appellant reiterated, in considerable detail, the details of his claims before the delegate and the Authority. In particular, he restated his claims of historical difficulties with the police in Iran, claimed that he would experience severe punishment for his previous conduct (including relating to the recording at the café) should he return to Iran, submitted that he had already suffered in prison during his time in Iran, and submitted further that he would have problems in Iran because of his drinking of alcohol. However it was apparent at the hearing that there was no material put by the appellant to this Court that had not already been before the Authority. Further, and critically, as Brennan J explained in the well-known passage in Attorney-General v Quin (1990) 170 CLR 1 at 35‑36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

(see, for example, the recent citation of this paragraph in DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [17] and the discussion of Edelman J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [51]).

42    In this respect, it was clear that, in his oral submissions, the appellant simply sought impermissible merits review by the Court of the Authority’s decision and findings of fact. To state the position plainly – findings of fact relating to the appellant’s claim were for the Authority to make, and cannot be reviewed by a Court unless there was an error in the decision-making process which went to the Authority’s jurisdiction. The oral submissions of the appellant pointed to no such error.

43    In relation to grounds of appeal before the Court, I am unable to identify any appellable error in the decision of the primary Judge warranting the orders sought by the appellant. In particular:

    The Authority made a factual finding based on country information that, notwithstanding the law in Iran forbidding alcohol, there was widespread alcohol consumption in Iran and it was relatively easy to obtain alcohol. In light of this finding, it was neither irrational nor illogical for the Authority to conclude that occasional drinking by the appellant in Iran would not come to the adverse attention of the Iranian authorities, and for the Authority to be satisfied that the appellant would not be prosecuted or punished for such conduct.

    In relation to the appellant’s claim concerning the alleged failure of the Authority to get new information under s 473DC of the Migration Act, the appellant bears the onus of establishing the factual foundation for the conclusion that the Authority failed to consider exercising the discretion: Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38]; Besanko J in DAY16 v Minister for Immigration and Border Protection [2018] FCA 1750 at [16]. The appellant did not discharge this onus. In any event, in circumstances where Pt 7AA of the Migration Act exhaustively codifies the requirements of the rules of natural justice, there is no duty on the Authority in terms of those requirements to identify a new “issue” to a visa applicant in respect of which the Authority should consider exercising its discretion. The discussion of the primary Judge in respect of the relevance of CRY16 in this case is, with respect, comprehensive and correct.

    In relation to the appellant’s claim that the Authority failed to consider an integer of the appellant’s claims, namely that he is likely to use alcohol if he returned to Iran and he would likely suffer serious consequences as a result, the primary Judge addressed this claim by finding that the Authority did not “cease its consideration” on the factual question concerning whether the appellant would use alcohol on return to Iran. His Honour’s finding that the Authority was not satisfied the appellant would face harm on that basis was, plainly, correct.

    In relation to the appellant’s claim that the Authority failed to consider the appellant’s fear of harm on the basis of his suspected apostasy, of which alcohol use was a factor, the reasoning of his Honour at [101]-[104] of the primary judgment was, plainly, correct.

44    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    22 November 2018