FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The first appellant is to pay the first respondent’s costs of this appeal to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The first appellant was granted an extension of time by Rangiah J (see DQU16 v Minister for Home Affairs  FCA 1695) to pursue a sole ground of appeal in this Court as follows:
The Federal Circuit Court of Australia erred in failing to find that the Second Respondent committed jurisdictional error by failing to apply the principles in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 when considering the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth).
2 While the Minister (the first respondent) claimed that this issue was not raised before the primary judge (see DQU16 & Ors v Minister for Immigration & Anor  FCCA 1818), he does not oppose it now being pursued in this appeal. At the outset it should be noted that there are, in fact, three appellants involved in this appeal. In addition to the first appellant, they are his wife and infant child, the second and third appellants respectively.
3 The factual background to this appeal and the claims the first appellant made in his protection visa application were conveniently summarised by Rangiah J in his judgment as follows ( FCA 1695 at ,  and ):
3 The first, second and third [appellants], are husband, wife and child respectively. In 2012, the first and second [appellants] arrived in Australia from Iraq. The third [appellant] was born in Australia. On 3 September 2015, they lodged applications for temporary protection visas. The second and third [appellants] did not apply in their own right, but, rather, as members of the first [appellant’s] family unit.
4 A delegate of the first respondent, the Minister for Home Affairs (the Minister) refused the applications on 9 September 2016. The delegate’s decision was referred to the Immigration Assessment Authority (the Authority), which affirmed the decision on 2 November 2016. The [appellants] then applied for review to the Federal Circuit Court, which dismissed their application with costs.
11 The Authority described the first [appellant’s] claims as follows:
• The [appellant] husband worked as an alcohol seller in [name of town deleted] between 2010 and 2012. He used to obtain liquor from Baghdad and sold them to customers in [name of town deleted] privately. He did not have a public front for his business, and all the sales of alcohol were done through his Mercedes car. His sales were usually done through phone calls. He usually sold alcohol around evening time and kept a low profile because alcohol business was very dangerous in Iraq. He did not operate from a single point; he changed his location frequently and it was difficult for someone to find him. He was careful not to conduct business with people that he did not know.
• In 2012, he discovered that the Mahdi Army (JAM) was planning to kill him because of his work as an alcohol seller. He was chased by a vehicle and motorbike, who attempted to shoot and kill him. He managed to escape and reported to the police who was unable to assist because the police were afraid of JAM who is a strong militant group.
• Following these incidents, he left [name of town deleted] and hid in Baghdad for about a month.
• He received a call from unknown people who threatened to kill him as he sold alcohol.
• While in Baghdad, he made arrangements to leave Iraq due to fear of harm.
• In October 2013 and August 2014 while he was in Australia, his family home was raided by JAM. JAM searched for alcohol, inquired about the [appellant] husband and threatened his family. His family told JAM that they have no idea and they did not know where he was.
• He fears being killed by JAM because of his work as an alcohol seller.
• He claims that the political and security situation of Iraq has deteriorated since 2003. Sectarian violence is rampant and the religious parties rule Iraq with impunity.
4 His Honour also provided a convenient summary of the Immigration Assessment Authority’s decision ( FCA 1695 at –) and the primary judgement ( FCA 1695 at –). It is not necessary, for present purposes, to set those summaries out in these reasons. It should, however, be noted that Rangiah J expressed the view that the Authority had implicitly proceeded on the basis that the first appellant was a member of a social group consisting of “businessmen who sell alcohol”. His Honour also seems to have considered the application before him on the same basis.
5 Briefly stated, the first appellant contended that, in considering his complementary protection claims under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), the Authority was required, but failed, to ask, and then to duly consider the answer to, the “why” question elaborated by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473;  HCA 71 (S395/2000) at –, as so described by the Full Court in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111;  FCAFC 176 at  per Kenny, Tracey and Griffiths JJ. That is to say, the question why the appellant would, or would not, modify his behaviour on his return to Iraq and, if it were because of his fear of harm, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iraq, there was a real risk that he would suffer significant harm there.
6 In response, the Minister contended that the principle identified in S395/2002 is confined in its application to the particular and very different statutory regime it considered, namely protection claims under s 36(2)(a) as in force at or about 2003. Accordingly, he contended that the principle in S395/2002 cannot be translated to the current first appellant’s complementary protection claims under s 36(2)(aa). It followed, so he contended, that the Authority did duly assess the first appellant’s complementary protection claims under the Act in accordance with the provisions of s 36(2)(aa) and the definitions in s 36(2B).
7 The effect of the observations made by Gummow and Hayne JJ in S395/2002 at – were summarised in the subsequent High Court decision of Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317;  HCA 45 (SZSCA) at  as follows:
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 inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed – whether the fear of persecution was well founded – had not been addressed.
See also Gageler J at .
8 As Rangiah J observed in  FCA 1695 at , the question whether the principles set out in S395/2002 have any application to the complementary protection provisions under s 36(2)(aa) has not been determined by this Court. However, since that judgment, Perry J has touched on that issue in CTY15 v Minister for Immigration and Border Protection  FCA 197 at  and , albeit obliquely.
9 While the Authority may not, in its decision, have asked the “why” question for the purpose identified in S395/2002 above, it did, perhaps unwittingly, make a finding about the issue to which that question relates at  of its decision as follows:
Having regard to all the circumstances of this case and the information before me, I consider that if the [appellant] husband were returned to Iraq, he will be concerned about his own safety and the safety his wife and child, and would not engage in selling alcohol given the risks associated with selling liquor. I consider that the [appellant] husband has other skills, education and knowledge that would enable him to find alternative employment upon return.
10 The Authority then implicitly adopted that finding, among others, to conclude, with respect to the first appellant’s complementary protection claims under s 36(2)(aa) of the Act, as follows (at –):
59. I have found above that the [appellant] husband could take reasonable steps to modify his behaviour by ceasing to sell alcohol so as to avoid a real chance of harm, and therefore, he does not have a well-founded fear of persecution. Unlike s.5J(3), there is no equivalent provision to which complementary protection is subject. The relevant question before me is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] husband being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.
60. I have found that the [appellant] husband would not continue to sell alcohol upon return.
61. Having found that he would not work as an alcohol seller upon return, I find that he does not face a real risk of harm on this basis.
11 The Minister emphasised in his submissions that the first appellant has not challenged any of this reasoning in this appeal.
12 While the Authority did, therefore, ask and obtain an answer to the “why” question identified in S395/2002, there is no indication from its reasons that it then went on to assess whether the harm that would be avoided by his behavioural modification would amount to significant harm as defined in s 36(2B) of the Act. The critical question, therefore, is whether the Authority was obligated to make such an assessment in this matter. For the reasons that follow, I do not consider it was.
13 Section 36(2)(a) of the Act gives effect, in domestic law, to Australia’s protection obligations under the Convention Relating to the Status of Refugees 1951 (the Refugee Convention) in respect of a refugee as defined in s 5H of the Act who has a well-founded fear of persecution as defined in s 5J of the Act. The latter definition requires the persecution concerned to be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Thus, these characteristics are the central focus of the Authority’s assessment whether protection obligations are owed to a person under the Act. On the other hand, s 36(2)(aa) and s 36(2B) of the Act, which were introduced in 2012, give effect in domestic law to Australia’s complementary protection, or non-refoulement, obligations. The operation of those provisions, and the separate Conventions to which they relate, were described by Edelman J in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362;  HCA 34 at , in the following terms:
The 2012 amendments introduced s 36(2)(aa) of the Migration Act, which provided an additional basis for a grant of a protection visa. That additional basis is complementary protection in circumstances where the applicant does not fall within s 36(2)(a) because he or she is not a person about whom the Minister is satisfied that Australia has protection obligations because the person is a refugee. As Lander and Gordon JJ said in Minister for Immigration and Citizenship v SZQRB, s 36(2)(aa) recognises that a non-citizen may be entitled to a protection visa because of Australia’s other protection obligations under the Convention against Torture or the International Covenant on Civil and Political Rights (1966) (“the ICCPR”). In broad terms, the criterion is that the Minister must be satisfied that Australia has protection obligations in relation to the visa applicant. Those protection obligations arise if the Minister has substantial grounds for believing that, “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. Paragraphs (c), (d), and (e) of s 36(2A) then respectively provide that a non-citizen will suffer significant harm if, among other things, the non-citizen will be “subjected to torture” or “subjected to cruel or inhuman treatment or punishment” or “subjected to degrading treatment or punishment”.
See also Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211;  FCAFC 147 at –.
14 Thus, those provisions focus on those persons who have failed to establish that Australia has protection obligations in respect of them under the Refugee Convention and ask whether they may suffer particular types of harm on their return to their home country which may contravene Australia’s complementary protection obligations mentioned above. Accordingly, modifying behaviour to avoid the harm connected with persecution associated with one of the characteristics described in s 5J of the Act is inherently different to such a modification of behaviour directed to avoiding harm that is not connected with a characteristic of that kind but is instead directed to avoiding harm for complementary protection obligation purposes. In the former situation, the persecution continues to operate with respect to the characteristic, albeit indirectly. In essence, the harm compounds the persecution. However, in the latter situation, there is no relevant persecution at work and the modification is not connected with a characteristic of the kind defined in s 5J of the Act. It concerns, instead, persons who are returning to their home country as, to use a common description, “failed asylum seekers”. Furthermore, it is directed to whether a particular kind of harm, namely significant harm, may be inflicted in those circumstances.
15 As Gageler J observed in SZSCA, the principle in S395/2002 therefore has 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 ), or “to a person who would or could be expected to hide or change behaviour that is not the manifestation of a Convention characteristic” (at ).
16 It follows that, in this matter, the Authority was not required to make an assessment with respect to the harm the first appellant avoided by modifying his behaviour as described in  of its reasons. It was required to assess whether the first appellant was likely to suffer significant harm in the terms expressed in ss 36(2)(aa) and 36(2B) of the Act on his return to Iraq as a failed asylum seeker. That is what it did. That is to say, it assessed that harm on the assumption that the first appellant would act rationally to avoid the harm that had been inflicted on him in the past for a non-persecutory reason, or reasons, unconnected with a Refugee Convention characteristic.
17 For these reasons, the sole ground of appeal which the first appellant was given leave to pursue in this Court does not establish that the primary judge committed an error in his treatment of the Authority’s reasons. The appellants’ notice of appeal must therefore be dismissed with costs.
18 The orders will be:
1. The notice of appeal filed on 21 December 2018 is dismissed.
2. The first appellant is to pay the first respondent’s costs of the appeal to be taxed if not agreed.