FEDERAL COURT OF AUSTRALIA

EDY17 v Minister for Home Affairs [2019] FCA 707

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    The appellant appeals from orders of the Federal Circuit Court of Australia made on 26 November 2018 dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the Minister to refuse to grant the appellant a protection visa: EDY17 v Minister for Immigration & Anor [2018] FCCA 3770.

BACKGROUND

2    The background facts were accurately and sufficiently set out at J[2] to [4] of the decision of the Federal Circuit Court:

2.     The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival on 28 March 2013. He lodged a protection visa application on 10 January 2017. The claims upon which that application was based are summarised in [4] of the Authority’s reasons:

…

•    He commenced work in 2007 running a mini-mart. Profits were very low and a friend suggested that he also sell alcohol. He subsequently did so in a clandestine fashion, to known customers only;

•    At the end of 2011 he received a telephone call from a representative of the Mehdi Army stating that they were aware of his business and to cease selling alcohol or he would be killed. He continued to sell off the remaining stock on hand but shortly after the telephone call the shop was burnt down in the night;

•    During 2011 he had been training to be a barber/hairdresser so early in 2012 he opened his own barber shop. He undertook western style haircuts including trimming beards with the razor. The Mehdi Army came to his shop on several occasions to ensure that he was no longer selling alcohol. He was warned not to continue undertaking western styles but charged more for these styles so did not stop;

•    One of his customers was stopped by the Mehdi Army who questioned him as to where he had his hair cut. They then shaved the customer’s head. The following day the applicant found a threat letter in his barber shop with a bullet. He immediately took steps to leave Iraq.

3.    On 16 May 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and that decision was referred to the Authority for review pursuant to s 473CA of the Migration Act 1958 (Cth).

4.    On 30 August 2017 the Authority made a decision affirming the delegate’s decision.

The AUthority

3    The Authority accepted the appellant’s claims with respect to the sale of alcohol and accepted that he commenced work as a hairdresser, but rejected his claims that he undertook styles or cuts which were unacceptable to certain groups:

10.    There have been a number of inconsistencies in the applicant’s evidence as to the timing and content of the threat letter, as noted above, and this reflects poorly on his credibility. I accept that as the applicant formerly sold alcohol he may have been watched by members of the Mehdi Army or another militia group and his new premises searched on a random basis. He has stated that at the time that the shop was burned down he had already been planning to quit the business of selling alcohol because of the dangers involved. In view of this, I do not accept that the applicant would then have taken up work that would also make him a target of militia groups. I accept that from 2012 to March 2013 he worked as a barber but do not accept that he undertook styles or cuts that were unacceptable to conservative groups or that he received a letter from a militia group requiring him to stop his work or that stated that he would be killed or that they would determine his fate.

4    The Authority concluded that, although the appellant sold alcohol from 2009 to 2011 and his business was burned down by a militia group, he did not face a real chance of harm from militia groups because of his past sale of alcohol. The Authority expressed its reasons for that conclusion at A[14] (footnotes omitted):

14.    The applicant’s central claim for protection is that from 2009 to 2011 he sold alcohol and as a result of this his business was burned down by a militia group. I have accepted that this occurred. The referred information includes a number of articles about attacks on liquor stores and bars, as these venues are seen as unacceptable by conservative elements including militias and religious groups. In October 2016 legislation was passed that banned the import, production or selling of alcoholic beverages. Selling alcohol is therefore now prohibited and legally punishable in Iraq. I note that it has been over five years since the applicant sold alcohol in Iraq. After his shop was burned down in late 2011 he continued to live and work in Karbala without harm. I have accepted that his business was monitored by a militia group due to his former sale of alcohol but not accepted that he came to any harm due to this or was threatened in any way. I consider it is remote that, given the significant passage of time since he sold alcohol, any interest in him would be renewed on return to Karbala. I am not satisfied he faces a real chance of harm from militia group because of his past selling alcohol.

5    The Authority concluded, at A[15], that there was not a real chance that the appellant would be harmed in the foreseeable future by any other individuals on the basis that he had previously sold alcohol:

15.    In terms of whether, as a former alcohol seller, there is a real chance that the applicant will be harmed by any other persons, I conclude there is not. Recent country information is silent on how former alcohol sellers are viewed in the community. The applicant has not stated at any point that there were other individuals that sought to harm him or his family due to his business and I am satisfied that there were not. I conclude that there is not a real chance that in the foreseeable future the applicant will be harmed by any individuals on the basis that he sold alcohol from 2009 to 2011.

6    The Authority also concluded that the appellant did not face a real chance of harm by reason of his occupation as a hairdresser, having not accepted the claim that he was of interest to militia groups due to hairdressing activities or the cumulative effect of various “transgressions”:

16.    The applicant also claims that he was further targeted in 2013 due to undertaking western style haircuts. [The appellant’s representative before the Authority] contends that the cumulative effect of the applicant’s transgressions in selling alcohol, refusing to stop doing so when warned, undertaking western style haircuts and also refusing to stop doing this when warned would make him an habitual offender in the eyes of the militias and would lead to him being harmed on return, regardless of the passage of time. Were this the case, I would agree that there would be more than a remote chance that the applicant may still be of interest to the militia groups, particularly in a conservative area such as Karbala, however I have not accepted that he was of any interest to militia groups due to his barber/hairdressing business so do not accept [the appellant’s representative before the Authority]’s contention that his profile is raised due to the cumulative effect of these actions.

7    The Authority implicitly considered the appellant might return to being a hairdresser, but did not consider this would result in any real chance of harm (footnotes omitted):

17.    Although the applicant has not worked as a barber/hairdresser since 2013, he is experienced in his area and has not indicated that he would not return to this profession, should he return to Iraq. In considering whether the applicant will be at risk of serious harm due to being a barber, the 2015 DFAT Country report on Iraq discusses targeting of specific groups of interest, including particular employment types. Targets on this basis seem to be limited to media professionals and journalists, who may be targeted by security forces as well as militia. The other country information before me is largely silent on this issue, other than to note that on the basis of Daesh’s extremist interpretation of shariah, individuals dressing differently would be at a higher risk of violence and discrimination in areas controlled by them. Karbala is not controlled by Daesh. In relation to targeting by the Mehdi Army or other Shia groups, the referred information includes two articles from 2016 relating to barbers in Baghdad, who openly undertake western styles without harm. Although this may be acceptable in Baghdad, I accept the applicant’s contentions that Karbala remains more conservative than the capital and western style haircuts and beards can still be considered un-Islamic and draw adverse attention. I have however found that the applicant had not been undertaking western style cuts or beard trims and he received no adverse attention due to his occupation. I conclude that there is not a real chance that the applicant would be targeted by security forces, by Shia militia or by Daesh/ISIS in Karbala for reason of his occupation as a barber/hairdresser.

8    The Authority did not consider there was a real chance of harm from sectarian violence or because of the fact that the appellant had unsuccessfully sought asylum in Australia: A[18] and [19].

9    The Authority ultimately concluded that Australia did not owe protection obligations by reason of s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

The Federal CIrcuit Court

10    The appellant’s amended application to the Federal Circuit Court raised two grounds of appeal as follows:

1.    The Authority made a jurisdictional error by failing to apply the real chance test of serious harm and / or real risk of significant hmm.

Particulars

a.    The Authority found that, if the Applicant were to return to Iraq and were to engage in hairdressing in a conservative area like Karbala, he would not be harmed if he did not breach perceived Islamic norms and standards, but refrained from performing Western style hairdressing.

b.    The Authority’s approach to the question of the Applicant facing harm in this respect involved an assumption of modified conduct by the Applicant.

c.    The Authority failed to have regard to the fact that the Applicant, by modifying his conduct in this way, faced serious and / or significant harm. The Applicant, by having so to act in order to avoid harm, necessarily suffered harm in accordance with Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [82]-[83] per Kenny, Tracey and Griffiths JJ and authority cited there.

2.    The Authority made a jurisdictional error by making findings of fact which were legally unreasonable.

Particulars

a.    The Authority found that the Mahdi Army did not intend to harm the Applicant so long as he ceased engaging in Western-style hairdressing;

b.    The Authority failed to conclude, in accordance with long-standing legal principle and common sense, that a conditional threat of harm involves an apprehension of harm notwithstanding the condition (Turberville v Savage (1669) 86 ER 684);

c.    The Authority found that the Applicant had made an inconsistent statement when he indicated, on one occasion, that he had booked a flight on the same day as he had received a threat from the Mahdi Army and, on the other, that he departed Iraq approximately two weeks after receiving the threat. There was no necessary inconsistency between the two statements.

11    The appellant, who was represented by Counsel experienced in the field, abandoned ground 2 and raised two arguments at the hearing, the first of which did not appear in the application. The Federal Circuit Court explained at J[12]:

In his written submissions, and orally at the hearing today, the applicant raised two arguments, the first of which does not appear from the application. Both arguments focus upon [17] of the Authority’s reasons. The first argument is that the Authority erred by relying solely on the occurrence of a past event in determining what might happen in the future without evaluating anything further to determine the possibility of harm. That was said to be an error of the type identified by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. The second error is that the Authority erred by making a finding that the applicant would avoid certain conduct, or modify his conduct, without asking why such modification would occur.

12    The Federal Circuit Court rejected both arguments.

13    As to the first argument, the Federal Circuit Court reasoned in substance as follows:

(1)    the Authority rejected that the appellant had performed “western style cuts or beard trims” in the past: J[15];

(2)    the Authority had concluded that the appellant might return to hairdressing activities, even though he had not expressly stated that he would: J[14];

(3)    it was implicit in the Authority’s reasons that the appellant would not perform “western style cuts or beard trims” if he returned to hairdressing, because he had not performed them in the past and there was nothing else to suggest that he would change his conduct to commence performing such activities in the future: J[13], [14], [15];

(4)    the Authority applied a forward-looking test by considering what the appellant “would” do in the future, when he returned: J[14];

(5)    where there was nothing in the material upon which to base a consideration as to future events except past events, it was not erroneous to make a finding about what might occur in the future by reference solely to those past events.

14    As to the fifth proposition above, the Federal Circuit Court stated at J[16]:

It is not the case, as appears to be submitted by the applicant, that in every case it is wrong for a decision-maker considering a future possibility of harm to base its conclusion solely on what had occurred in the past. Where, as was the case here, there was nothing else upon which to base its consideration, it is, in my view, proper for the Authority to base its conclusion solely on what the applicant had not done in the past. That is because the Authority is constrained by implication in its powers of review to act reasonably, meaning that it must act upon findings of fact which are based upon material before it and upon logical inferences drawn from other findings; it cannot simply engage in pure speculation. I say “pure” because, of course, any finding about the possibility of future events entails, itself, some level of speculation; my point is simply that the speculation required is not one that can be undertaken in the absence of any evidence whatsoever: see CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60].

15    As to the appellant’s second argument, the Federal Circuit Court reasoned that:

(1)    there was no finding by the Authority that the appellant could avoid harm by acting in a particular way or modifying his conduct (not performing western style cuts), which might then require the Authority to ask why such modification would occur;

(2)    therefore, reliance on Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317, Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 and Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111was misplaced: J[24].

16    His Honour stated:

24.    In my view, the reliance on SZSCA, S395 and BBS16 are misplaced. There was no finding in the Authority’s decision that the applicant could avoid harm by acting in a particular way. There was no finding that the applicant would modify his conduct in any way. This was more a case like the applicant in NABD v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142 where the Tribunal found that the visa applicant would act in a particular way and if he did so then he faced no real chance of persecution. Here, on the basis that the applicant had not in the past engaged in undertaking western style cuts or beard trims, the Authority found that he would not do so in the future. It was nothing to do with the fact that he might avoid persecution for that reason. Indeed, there was nothing to suggest that he had failed to do so in the past in order to avoid persecution.

17    His Honour also concluded that the principle in S395 only applied to the situation where a person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic and that there was nothing before the Authority to suggest that the appellant undertook hairdressing, let alone hairdressing in a western style, for any reason other than financial reward: J[26], [27].

ThE Appeal

18    The appellant raised two grounds of appeal in the notice of appeal:

1.    The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), misapplied the real chance test in the Migration Act 1958 (Cth) (“the Act”) in a manner which constituted jurisdictional error. The Federal Circuit Court erred in dismissing this ground of review.

2.    The appellant contended in the Federal Circuit Court that the IAA decision was legally unreasonable due to the authority’s failure to consider whether the applicant’s modification of behaviour is relevant in assessing the possible harm that the applicant may be subjected to.

19    Both grounds for appeal fail.

20    As to the first ground, the Authority did not misapply the real chance test. I agree with the substance of the reasoning of the Federal Circuit Court as expressed at [13] above.

21    The Authority’s reasoning involved assessing what may occur in the future by reference to past events. In Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 575 six members of the High Court stated:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

See also: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [33]-[35] (Kenny, Griffiths and Mortimer JJ).

22    As to the second ground, on the Authority’s findings there was no modification of behaviour. The principle in S395 had no application. This was the sole basis upon which it was contended that the Authority’s decision was legally unreasonable.

CONCLUSION

23    The appeal must be dismissed with costs.

Associate:

Dated:    20 May 2019