Federal Court of Australia

EYG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1309

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed from ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    The appellant have leave to rely on his amended notice of appeal dated 23 February 2022.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s cost of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the then Federal Circuit Court of Australia delivered on 12 February 2020, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 20 August 2018. The Authority affirmed the decision of a delegate of the respondent Minister not to grant the appellant a safe haven enterprise visa (“protection visa”). The reasons for judgment delivered by the primary judge in the Federal Circuit Court has the citation EYG18 v Minister for Immigration [2020] FCCA 725 (“PJ”).

2    For the following reasons, I would dismiss the appeal.

BACKGROUND

3    The Authority accepted that the appellant is a national of Afghanistan. He is a Hazara and a Shia Muslim. The Authority accepted that he was born in Afghanistan, but left the country with his family when he was 2 or 3 years old to live in Pakistan. It further accepted that the appellant’s father had died (or was presumed dead) in or about 2011. It accepted that, with the assistance of an uncle, the appellant arrived in Australia by boat in May 2013. He was then about 15 years old.

4    Around three years after the appellant arrived in Australia, the Minister’s Department invited the appellant to apply for a visa on the basis that the Minister had lifted the bar created by s 46A(1) of the Migration Act 1958 (Cth) (“the Act”). The appellant applied for a protection visa in June 2017 and thereby became a “fast track” applicant under Part 7AA of the Act.

5    In a statement of protection claims dated 5 June 2017, which accompanied his visa application, the appellant claimed to fear harm if returned to Afghanistan on account of his “Shia religion, Hazara ethnicity and imputed political opinion”, and as a “western returnee”. As explained in more detail below, the delegate and the Authority were not satisfied that these claims were sufficiently strong to satisfy the criteria for a protection visa.

6    Relevantly for this appeal, in his 5 June 2017 statement of protection claims, the appellant said

... Because I left when I was 2-3 years old I will not be familiar with the country and the local culture and customs, and I will not have any family support.

I am not [a] very religious person anymore. I usually do not pray and fast and I occasionally drink beer. People in Afghanistan are very religious, including the Hazara community. If they realise that I’m not very religious anymore then they will not provide the support that I need to live there.

7    An officer of the Department interviewed the appellant on 19 December 2017. The appellant subsequently sent a letter to the Department dated 11 January 2018, in which he stated that:

I don’t think that it will [be] easy for me to find support and integrate into Afghanistan because I’m not religious anymore. I drink and eat pork and don’t pray and don’t follow the religious teachings. I think that people will look down at me and not be friends with me if I do not act like a strong Muslim.

8    Around the same time, his migration agent also made submissions to the delegate. These submissions included the statements that:

We submit that if the applicant was to return to Afghanistan his life would be in danger as he would be identified as a western returnee. Several reasons why he might be targeted include:

...

He drinks, eats pork and doesn’t pray nor actively practises his religion. This would be frowned upon by local Afghans who are mostly conservative Muslims.

    ...

He eats pork, drinks and doesn’t follow religious customs and practices, and this would be a clear indication that he lived in a Western country and would be perceived by locals as ... becoming un-Islamic.

the delegate’s decision

9    On 28 February 2018, a delegate of the Minister decided not to grant the appellant a protection visa because the delegate was not satisfied that he met the criteria in s 36(2)(a) or (aa) of the Act. That is, the delegate was not satisfied that the appellant was a “refugee” as defined in s 5H(1) or a person at “real risk” of “significant harm” for the purpose of s 36(2)(aa).

10    The delegate found that the appellant would not be persecuted for being Hazara if he returned to his birthplace in Afghanistan because his birthplace was in a predominantly Hazara district (hereafter “home area”) and “therefore presumably Shia”. Further, the delegate found that the country information indicated that his home area was generally free of violence. The delegate apparently accepted that the appellant was a non-practising Shia Muslim, but found that he would not be persecuted on this account if he returned to his home area. The delegate found that the appellant was not an apostate, which in the delegate’s view was a person who had converted from Islam to another religion. The delegate accepted that being an apostate might attract criminal prosecution and conviction.

11    The delegate was also satisfied that the appellant would not be persecuted in his home area as a result of having spent time in a Western country, or for an imputed political opinion on account of having lived in a Western country.

12    Ultimately, the delegate was not satisfied that “[o]verall ... the weight of ... evidence indicates that the [appellant] faces a real chance of serious harm in [his home area] as a failed asylum seeker returning from a western country”. The delegate found that the appellant could return to his home area safely and “would not face a real chance of persecution now or in the foreseeable future because of his Hazara ethnicity, as a non-practising Muslim or an imputed political opinion as a returnee [from] the West/failed asylum seeker”.

13    The appellant was advised by letter dated 28 February 2018 that the delegate’s decision had been referred to the Authority for review under Pt 7AA of the Act.

The Authority’s decision

14    The Authority affirmed the delegate’s decision on 20 August 2018. The Authority’s reasons (“AR”) commenced by identifying the material before it. The Authority recorded that it had regard to the material that the Secretary had given it pursuant to s 473CB of the Act (including reports from two psychologists). It also had regard to two country information reports not before the delegate, but satisfying relevant requirements for consideration in s 473DD; and “a submission from the [appellant’s] new representative and some country information” (which was not “new information” within the meaning of the Act). The Authority noted that it had itself obtained “new information” “about the situation in Afghanistan for Shia Muslims, non-practising Muslims, and apostates, Hazaras and returnees and persons with mental health conditions”; and that it was satisfied that there were exceptional circumstances to justify considering this information.

15    The Authority concluded that it was not “satisfied [that] the Taliban or any anti-government group would have any adverse interest” in the appellant: AR [23]. It did not accept that he faced a real chance of harm from the Taliban or anyone else in his home area or elsewhere in Afghanistan: AR [23]. Further, the Authority did not accept that there was a “real chance” that the appellant would be harmed “in insurgent driven or community level ethnic or sectarian violence in his home area ... nor anywhere in the Hazarajat”: AR at [31], [33].

16    In written submission to the Authority, the appellant’s representative had submitted that the appellant:

... has a well-founded fear of persecution for a s 5J(1) reason on the basis of his being an apostate. This claim was not correctly assessed by the delegate. The applicant has made statements indicating he is non-practising and doesn’t know much about his imputed religion. In his supplementary statement of 11 January 2018 he says “I’m not religious anymore”, and that he does not practise the faith, does not follow ‘religious teachings’ (Sharia), and drinks and eats pork. He fears persecution as a result of this. ... The delegate has incorrectly concluded, however: “the applicant is not an apostate which is defined as conversion from Islam to another religion”.

This is incorrect as the Refugee Law Guidelines advise “for a claim of apostacy there is no requirement for conversion from one faith to a different faith. ...

It is submitted the applicant meets the definition of an apostate.

As an apostate the applicant is at risk from the authorities, AGEs and his own Shia community. ... His risk will be compounded by his lack of knowledge of social customs, lack of knowledge of his own religion, and complete lack of social networks to protect him.

17    The Authority set out the appellant’s claims in summary form at AR [7], including the appellant’s claims concerning his religious conviction and practice. At AR [34] and following, the Authority specifically considered “the [appellant’s] non-adherence to Shiism, or any branch of Islam and whether he would face a risk of harm on this basis, or because he would be treated as an apostate”. The Authority recorded the evidence the appellant had provided to the delegate and to the Authority about his religion, stating at AR [35]:

•    He clearly indicated in his SHEV application (both his Form 790 and his written statement of claims) that he identified as a Shia Muslim although he did not consider himself ‘very religious’. He stated “I am not very religious anymore. I usually do not pray and fast and I occasionally drink beer. People in Afghanistan are very religious, including the Hazara community. If they realise that I’m not very religious anymore then they will not provide the support that I need to live there.”

•    When discussing religion at the SHEV interview he stated he has changed in Australia and forgotten how to pray, and had “forgotten everything about the religious thing”. His representative orally submitted that it would not be reasonable for the applicant to relocate in Afghanistan as he is not religious and if he is not practising such as not praying or going to the mosque, there is a lower likelihood that he would get support and he could be ostracised.

•    In a post-interview written statement he said “I don’t think that it will be easy for me to find support and integrate into Afghanistan because I’m not religious anymore. I drink and eat pork and don’t pray and don’t follow the religious teachings. I think that people will look down on me and not be friends with me if I do not act like a strong Muslim.”

•    In the post-interview submission, the [appellant’s] representative stated the [appellant] “drinks, eats pork and doesn’t pray nor actively practices his religion. This would be frowned upon by local Afghans who are mostly conservative Muslims”. The representative submitted this will be an indicator that the applicant has become un-Islamic and Westernised and that he will experience difficulties or harm as he tries to obtain support from the Hazara community.

18    The Authority found that the appellant had not “abandoned his faith” although it accepted that the appellant “does not actively practice Shiism and does not consider himself religious”. It explained (at AR [37]-[39]) that:

Throughout the primary process the [appellant’s] fear of being harmed as a Hazara Shia was a constant theme and as summarised above, references to his Shia religion are littered throughout the application/statement. I have considered the applicant’s statement that he does not follow the religious teachings but it is a vague reference. The applicant has not indicated which aspects of the teachings he does not follow (apart from drinking, eating pork and not praying) and given the breadth of Islamic principles which cover inter alia, the basic tenants [sic] of various aspects of humanity I am not convinced that he does not follow any religious teachings, even if he does not do so consciously. I accept the [appellant] does not actively practise Shiism and does not consider himself religious but the claims put to the delegate do not indicate the [appellant] abandoned his faith. For example it was submitted that: [‘]he fears being targeted travelling on the road or going to a Shia mosque’; he fears how people will perceive and treat him if he does not act like a ‘strong Muslim’; that he does not ‘actively practice his religion’. I have considered all of the information before me carefully and taken into account the nuances in the statements from the point of application, through the interview, and the post-interview statement and submission and have considered whether the [appellant’s] movement away from actively practising his religion evolved to a point of abandonment but I do not consider this to be the case.

The [appellant] has not at any time indicated that he no longer believes, or that he has converted to or explored any other religion. He has not indicated that he is an atheist, secularist or any kind of convert. I find that the [appellant] has not abandoned Islam and still identifies as a Shia, but that he is a non-practising Shia in the sense that he does not usually pray, does not fast in accordance with Islamic traditions, does not abstain from alcohol and pork, and does not make an effort to upkeep the practice of his faith. I accept he fears that if he doesn’t conform to a strict religious practice he will face social ramifications such as difficulty integrating and obtaining support from members in the community and that he will be perceived as westernised.

There is nothing to suggest that the [appellant’s] past and current non-practice of Islamic rituals and traditions or his consumption of pork and alcohol is known by anyone in Afghanistan. There is no credible evidence to suggest that the [appellant’s] actions or inactions in Australia have, or that there is a real chance that they will, come to the attention of the Afghan authorities or to any AGEs or anyone on his return to Afghanistan.

(Emphasis added)

19    Turning specifically to the appellant’s statement that he drinks alcohol and eats pork, the Authority said, at AR [40]:

I accept that in Australia, the [appellant] drinks alcohol and eats pork. However he was raised in a Shia Afghan family in Pakistan, and I am satisfied that from his upbringing and because he made mention of how he does it now, he knows that alcohol and pork consumption are not permitted in Islam and not permitted in Afghanistan. Given his upbringing and the environment and culture he would be returning to where he knows such things are haram, and would not in any event be readily available, I am satisfied he would not consume these items upon return. I accept that his avoidance would be out of a fear of persecution. However, the [appellant] does not claim that he has an addiction of any kind association [sic] with this consumption, or that drinking alcohol or eating pork is a fundamental characteristic of his identity, that he does this as a type of religious (or anti-religious) expression or that it is important to him in any way. Alcohol and pork consumption is not an innate or immutable characteristic, or a fundamental characteristic, of the [appellant’s] identity, I am satisfied that it would be reasonable for the [appellant] to modify his behaviour in this way to avoid a real chance of harm arising from the consumption of alcohol and pork.

(Emphasis added)

20    The Authority did not consider that the appellant’s actions on return to Afghanistan would attract adverse interest or that he would be seen as an apostate. The Authority stated at AR [41]-[42] as follows:

The [appellant] does not claim he would publicly or actively denounce or speak against Islam, its teaching and traditions, that he would denounce or speak out against Afghan institutions ..., nor encourage others to leave Islam, or that he would commit any sort of blasphemy. ... I have found the [appellant] still identifies as a Shia and I note in his application he mentioned going to the mosque if he returned. I accept he would not be dedicated in his practice upon return and would not seek to attend major events in the cities, but I do not accept he would not participate in certain Shia Islamic practices if he returned to Afghanistan.

I do not accept [the appellant] will be perceived as an apostate, or that he will be accused of such, or of committing blasphemy and in any case, according to [identified country information] prosecutions and convictions for apostasy or blasphemy have been relatively uncommon since 2001, even ‘rare’. While some punishments are meted out outside the court process, country information does not suggest that this has been an issue in [the appellant’s home area] in recent years and while ISKP and the Taliban may perceive allies of the west or those who do not conform to their interpretations of Islam to be apostates, there are no indications that they have been targeting such persons in [the appellant’s home area].

Thus, the Authority did not accept that, if returned to Afghanistan, the appellant would face a real chance of harm arising from accusations of apostasy or blasphemy.

21    The Authority also made findings about how the appellant would be received upon returning to his home area. At AR [43] it said as follows:

I accept the [appellant] is concerned about how he will be received in the community. There is country information about there being societal pressures on atheists, secularists and converts to appear outwardly Muslim and fulfil the behavioural religious and cultural expectations of their local environment. However I have not accepted the [appellant] identifies with any of these groups, but that rather, he still identifies as a Shia and would participate in certain Islamic practices. Country information does not indicate that persons who do not pray or fast or regularly attend mosque, or conform to other Islamic rituals in Afghanistan are targeted and harmed. Country information from various sources including DFAT’s 2014 report on Hazaras in Afghanistan and LandInfo’s 2016 report that were before the delegate indicate that many Afghans—including Hazaras—regularly travel abroad, to Iran, Pakistan and also to Europe and other western countries to seek work and greater economic or educational opportunities. Many Hazaras have been abroad themselves or have relatives in Western countries. Given these factors I do not consider that members in the community in [his home area] would be so intolerant of the [appellant’s] non-adherence to certain rituals after returning from the west that it will lead him to face harm at the societal level. Nor do I consider any such observations of his behaviour in [t]his manner would lead to his being accused of apostasy, blasphemy or un-Islamic behaviour such that he would be harmed by any AGEs or government authorities.

(Emphasis added)

22    The Authority concluded that there was no real chance that the appellant would be harmed on any basis, including his profile as a Hazara (non-practising) Shia returnee from the west: see AR [67]. Accordingly it was not satisfied that the appellant was a “refugee” as defined in s 5H(1) so as to satisfy s 36(2)(a) of the Act. For much the same reasons, the Authority concluded that appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act. The Authority therefore affirmed the decision of the delegate not to grant the appellant a protection visa.

the federal circuit court proceeding

23    The appellant filed a judicial review application in the Federal Circuit Court in September 2018. He filed an amended application early the following year, which identified the following ground, namely that:

The [Authority], at [40] asked itself the wrong question and in doing so diverted itself from the question of whether the applicant would face a real risk of persecution on a Convention ground by erroneously focussing instead on whether the harm in question might be avoided and in doing so fell into jurisdictional error.

Paragraph [40] is set out at [19] above. A judge of the Federal Circuit Court dismissed the amended judicial review application on 12 February 2020.

24    The appellant’s argument before the primary judge was that the Authority had misapplied s 5J of the Act by failing to adhere to the process of reasoning set out by Rangiah J in ESD17 v Minister for Immigration & Border Protection [2018] FCA 1716: see PJ at [44]-[45]. The primary judge accepted that the Authority did not in fact follow the sequential process set out in that case and engaged in an abridged application of s 5J: PJ [46]. His Honour held, however, that a close reading of paragraphs [40] and [41] of the Authority’s reasons showed that the Authority concluded that there would be no persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, as required by s 5J(1)(a) of the Act: PJ [48]-[49]. His Honour also held that the Authority had considered s 5J(3) as a whole: PJ [50]. The primary judge accepted the Minister’s submission that any error disclosed by the Authority’s failure to follow ESD17 was not a material jurisdictional error: PJ [51]-[52].

25    The primary judge also addressed the further submission that the Authority’s reasoning at [41] of its reasons (see [20] above) was indicative of material error. The appellant submitted that the Authority erred by failing to consider whether the appellant would not behave as described in that paragraph because he feared persecution. The primary judge rejected this submission, noting that the appellant had never engaged in behaviour of that kind, and that there was therefore no reason for the Authority to consider why the appellant would commence engaging in such behaviour on returning to Afghanistan: PJ [56]-[58]. The primary judge held that the appellant had not established jurisdictional error as alleged.

the appeal to this court

26    The appellant appealed from the judgment of the primary judge initially upon essentially the same ground that the primary judge had considered. He subsequently filed an amended notice of appeal containing a ground that was not advanced before the primary judge. This new ground was:

1.    The [Authority] acted unreasonably in failing to consider exercising its power to get new information, or in failing to exercise the power to get new information.

(a)    The [Authority] failed to seek out information from the applicant about whether his consumption of pork and alcohol had a religious dimension and would involve the appellant having to alter his religious beliefs by concealing his true religious beliefs within the meaning of s 5J(3)(c)(i) of the Migration Act 1958.

(b)    The [Authority] failed to seek out information from the applicant about whether he would consume pork and alcohol upon any return to Afghanistan, despite the risks of doing so.

27    By interlocutory application, the appellant sought leave to amend his notice of appeal to rely on this new ground. The application was supported by an affidavit affirmed by the appellant on 19 February 2022. (The interlocutory application also sought leave for the appellant to rely on the transcript of the recording of interview between the appellant and the delegate on 19 December 2017, but this part of the application was not pursued at the hearing.)

Leave to Amend Notice of Appeal

28    At the hearing, the appellant sought only to rely on paragraphs [10] and [11] of his 19 February 2022 affidavit. The Minister, who had previously contested the admissibility of the affidavit, did not oppose this course. In consequence, paragraphs [10] and [11] of the appellant’s 19 February affidavit were in evidence.

29    As to the issue of leave, it is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. The proposition has been regularly applied in this Court. The parties agreed that whether leave to amend the appellant’s notice of appeal should be granted fell to be determined primarily by reference to the merits of the proposed new ground. I am satisfied that the proposed new ground has sufficient merit to justify the grant of leave, even though, as explained below, the appeal is ultimately unsuccessful.

Some Relevant Legislative Provisions

30    As will be seen, the appellant challenges the Authority’s decision on the basis that it acted unreasonably in not considering whether to exercise its power under s 473DC of the Act to get new information from him. This ground is difficult to understand without reference to the relevant statutory provisions.

31    Section 36 of the Act sets out the criteria that an applicant for a protection visa must satisfy. Section 36(2) relevantly provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because 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; ...

32    As the word “or” makes clear, a visa applicant need only satisfy one of the criteria in s 36(2). The criterion in s 36(2)(a) has come to be called “the refugee criterion” whereas the criterion in s 36(2)(aa) has come to be called the “complementary protection criterion”: see, for example, DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1.

33    Section 36(2)(a) calls for an assessment about whether a protection visa applicant is a refugee within the meaning of the Act. Section 5H of the Act defines a refugee, in the case of a person with a nationality, as a person who “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”. What constitutes a well-founded fear of persecution is set out in s 5J of the Act in the following terms:

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.

[…]

(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;

[…]

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

34    Plainly enough, s 5J(3) qualifies what may constitute a “well-founded fear of persecution” under s 5J(1) by providing that a person does not have such a fear if that person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. This qualification is, however, itself subject to the further qualifications in ss 5J(3)(a) to (c). Relevantly, s 5J(3)(c)(i) provides that a modification that would require a person to “alter his or her religious beliefs… or conceal his or her true religious beliefs” is not a modification that a person can lawfully be expected to make to avoid a real chance of persecution.

35    As a result, when assessing whether a protection visa applicant meets the refugee criterion, a decision-maker must consider whether the applicant fears persecution on one or more of the grounds in s 5J(1)(a). If the decision-maker is satisfied that this is the case, the decision-maker must go on to consider whether that fear would not be a “well-founded fear of persecution” within the meaning of s 5J because the person “could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution”: s 5J(3). In so doing, another statutory question is engaged. That is, the decision-maker must also consider whether the behavioural modification in contemplation would have any of the effects described in s 5J(3)(a)-(c). If this is the case, the decision-maker cannot take account of that behavioural modification in determining whether the person has a well‑founded fear of persecution.

36    The complementary protection criterion in 36(2)(aa), in contrast to s 36(2)(a), calls for an assessment whether “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”. Section 36(2A) supplies the meaning of “significant harm”:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)    the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non‑citizen will be subjected to degrading treatment or punishment.

37    Section 36(2B) qualifies what constitutes a real risk of suffering significant harm:

(2B)    However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

38    It is to be noted that there is no equivalent to s 5J(3) for the complementary protection criterion. That is, there is no provision requiring the decision-maker to disregard a risk of significant harm where it would be reasonable for the protection visa applicant to modify their behaviour. Subject to s 36(2B), the question for the decision-maker is whether, 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.

39    In asking itself the various questions that arise in performing the statutory task of assessing a protection visa application, a decision-maker must also abide by the statutory procedure that governs the relevant decision-making process. Relevantly, s 473DB provides that the Authority is to conduct its review of the delegate’s decision by considering the review material provided to it under s 473CB, and without receiving new information or interviewing the applicant. Despite this, under s 473DC(1), the Authority has a power (but no duty: s 473DC(2)) to get any document or information that was not before the delegate and that the Authority considers may be relevant to the review: see also s 473DD. It is accepted that, while the Authority has no duty to get new information, a failure to consider whether the circumstances call for an exercise of the power in s 473DC(1) may, in a given case, be legally unreasonable: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [40].

40    Also relevant in this case are the provisions of s 5AAA. Subsections 5AAA(2) and (4) relevantly provide:

5AAA Non‑citizen’s responsibility in relation to protection claims

(1)    This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(2)    For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim ... and to provide sufficient evidence to establish the claim.

...

(4)    To remove doubt, the Minister does not have any responsibility or obligations to:

(a)    specify, or assist in specifying, any particulars of the non-citizen’s claim; or

(b)     establish, or assist in establishing, the claim.

The Parties’ Submissions

The appellant’s submissions

41    The appellant’s primary submission was that the Authority acted unreasonably in not considering whether to get, or in not getting, further information from him regarding his religious beliefs. The appellant contended that his case was equivalent to CRY16, where the issue of relocation was raised for first time only at the Authority stage, in circumstances where the Authority knew that it did not have, but CRY16 was likely to have, information about the circumstances relevant to that issue. The appellant relied on the fact that, in that case, the Full Court held that it was legally unreasonable for the Authority not to consider getting documents or information from CRY16: see CRY16 at [82]. The appellant argued that the submissions and representations made by him or on his behalf to the Authority attributed a “religious dimension” to his consumption of pork and alcohol, but that s 5J(3) of the Act had “[a]t no stage during the primary decision-making process” been brought to his attention. The appellant submitted that the Authority’s statement that he “does not claim ... that he does this as a type of religious (or anti-religious) expression” must be understood in this context.

42    Counsel for the appellant, Mr Aleksov, submitted that the delegate did not address any issue arising under ss 5J(3)(a)-(c) of the Act, and that there was nothing to indicate that the issue of modifying behaviour might arise before the Authority. Mr Aleksov submitted that, for this reason, the appellant never addressed s 5J(3) in submissions to the Authority. Mr Aleksov further submitted that, while the pork and alcohol consumption issue appeared to have a religious dimension, the precise nature of this dimension was one that only the appellant could explain.

43    Mr Aleksov argued that once the Authority formed the view that the appellant would not consume pork or alcohol on return to Afghanistan (“where he knows that such things are haram”) and that this non-consumption “would be out of a fear of persecution” (as it did at [40] of its reasons), the Authority was required to address the question in s 5J(3)(c)(i) of the Act. That is, Mr Aleksov submitted, at this point, the Authority was required to consider whether this behavioural modification would, in effect, require the appellant to conceal his religious belief. He submitted that it erred in not doing so.

44    In this context, Mr Aleksov referred to the Authority’s observation that the appellant “[did] not claim that… drinking alcohol or eating pork is a fundamental characteristic of his identity, that he does this as a type of religious (or anti-religious) expression”. Mr Aleksov submitted that this observation showed that “the Authority in its own mind [was] aware that [the appellant’s] evidence could be viewed differently if there was a religious or anti-religious component”; that is, the Authority was aware that the appellant could not lawfully be expected to refrain from consuming pork and alcohol on return if to do that would amount to concealment of  a religious belief under s 5J(3)(c)(i). In Mr Aleksov’s submission, the Authority was at a metaphorical fork in the road at this point in its decision-making. That is, on one hand, the appellant’s consumption of pork and alcohol might simply reflect that observance of Islamic precepts no longer concerned him greatly, in which case he might be expected to refrain from consuming pork or alcohol on return to Afghanistan. On the other hand, such consumption might reflect the appellant’s religious beliefs with respect to Islam, in which case s 5J(3)(c)(i) would be engaged so as to require the Authority to disregard any possibility that the appellant might conceal this aspect of his beliefs by refraining from consuming pork and alcohol on return to Afghanistan. Mr Aleksov submitted that there was no material before the Authority to indicate which of these two views was correct. He submitted that because the question of religious belief is “intensely personal”, the answer could be expected to lie only “within the mind of the [appellant]” himself. In this circumstance, so Mr Aleksov submitted, the Authority acted unreasonably in failing to consider exercising (or failing to exercise) its power under s 473DC of the Act to get new information from EYG18 on this issue. This case was, so Mr Aleksov submitted, “on all fours” with CRY16, because a decisive issue emerged for the first time before the Authority, the issue was one about which the Authority had no information, and the Authority knew that the appellant would have such information. Mr Aleksov submitted that, as in CRY16, the Court should conclude that there was no intelligible justification for the Authority not to consider exercising its power to get new information from the appellant in this circumstance.

45    Furthermore, regarding s 36(2)(aa), Mr Aleksov submitted that there was no evidence that the appellant would stop eating pork and drinking alcohol for fear of persecution and significant risk of harm. He submitted that this was another reason why the Authority acted unreasonably in not considering whether to get, or in not getting, further information from him about this.

46    In reply, Mr Aleksov contended that the Court should not accept the Minister’s submission that it was open to the Authority not to deal with a claim the appellant never made. He submitted that the possibility of a behavioural modification under s 5J(3) “has to be postulated at some point in the administrative process” and a visa applicant could not “be expected to know what the reasonable step a decision-maker might have in mind is”. Mr Aleksov contended that the fact that the appellant had made no express claim to be entitled to the protection of s 5J(3)(c)(i) was explained by the fact that the delegate had not raised it, “the issue had never been drawn to his attention, and it was a topic about which he could not possibly have given evidence until the particular reasonable step had been identified as an issue”. Mr Aleksov submitted that the Authority “should have known that the reason why there wasn’t evidence or why the [appellant did] not [expressly make the] claim… was because the issue had not previously been raised”. He further submitted that the Authority could not rely on the absence of any express claim to conclude that the appellant’s consumption of pork and alcohol did not have a religious dimension.

The Minister’s submissions

47    At the hearing of the appeal, Ms Taggart, counsel for the Minister, accepted that legal unreasonableness may be shown in relation to an ultimate decision or in relation to the process followed by a decision-maker in getting to an ultimate decision. Counsel referred in this context to ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [19] and CRY16. Ms Taggart submitted that “unreasonableness, particularly as to process, will arise where the Authority has placed itself in a position where it is somehow disabled from undertaking the review”. In this case, so counsel submitted,:

[W]hether or not there may have been different understandings or conclusions available on the material is not determinative. ... [T]he essential question is, is there an absence of an intelligible justification or is it a decision that no reasonable decision-maker could have come to ...

48    Ms Taggart, for the Minister, submitted that the critical question was “what was it that disabled the Authority from considering the claims that had been made, and discharging its functions as prescribed by the Act?” Ms Taggart submitted that the Authority was not in a state of doubt as to the precise import of the appellant’s statement that he “eats pork and drinks alcohol”, bearing in mind that “the appellant has always been represented by migration agents” and “has always had the benefit of submissions … to contextualise and explain his claims”. In her submission, such a state of doubt was not a disabling feature of the decision-making process.

49    Counsel for the Minister contended that the Authority’s reasons showed that it carefully examined the appellant’s statement that he consumed pork and alcohol within the context in which he made it, namely, within the context of claims of (imputed) apostasy, and the difficulty of reintegration on account of his westernisation. Counsel submitted that the Authority’s reasons emphasised that the appellant made no claim that his consumption of pork and alcohol reflected any religious or other deeply held belief.

50    Ms Taggart submitted the Authority never arrived at the point where the boundaries of legal reasonableness might have required it to consider exercising its power in s 473DC. Counsel submitted that, in the absence of a claim by the appellant that he held a particular religious belief manifested by “positive consumption of pork and alcohol”, it was reasonable for the Authority to conclude that no such claim was made and to find as a matter of fact that the appellant would not consume pork or alcohol on return to Afghanistan.

51    Counsel for the Minister submitted that the Authority concluded that it was “satisfied that it would be reasonable for the [appellant] to modify his behaviour” by refraining from consuming pork and alcohol on return to Afghanistan. Counsel submitted that, in considering “whether that particular avoidance offended 5J(3)”, it was open to the Authority to conclude that it did not “because in all of the circumstances, where no claim had been made at all about a particular positive religious belief or a positive anti-religious belief, ... the absence of the claim was ... relevant”; and was “a proper and justifiable basis” for the Authority to reason as it did. Ms Taggart submitted that the Authority was not disabled for completing its review. She submitted there was no unreasonableness in proceeding to make relevant findings about what the claim was, “and then to consider the absence of any claim as to holding particular religious beliefs as distinct from being a non-practising Shia, in a context of an overarching claim about being perceived as westernised”.

52    The Minister further submitted that this was not a case like CRY16, where the Authority knew that it did not have information on a critical issue that the appellant was likely to have. This was because, from the Authority’s perspective, having regard to its finding that the appellant was a non-practising Shia Muslim and the way the appellant had advanced his claims, there was “no reason for the Authority to know, or even [to] suppose, that the appellant had information concerning the positive existence of a claim he had not made”. The Authority therefore had an intelligible justification for not considering whether to obtain new information as to whether the appellant had particular beliefs “of defiance or opposition to Islam”. In these circumstances, so the Minister submitted, the fact that the Authority did not consider getting information about that issue from the appellant was not legally unreasonable.

53    Further, in written submissions, the Minister also contended that whether the delegate considered the appellant’s consumption of pork and alcohol was immaterial because the appellant raised this issue with the Authority directly in the “specific context of contending that he was an apostate or would otherwise be at relevant risk because of his non-observance of Islam”. The Minister observed that the appellant advanced no claim beyond this, let alone a case to the effect that this consumption reflected “negative or defiant beliefs concerning Islam”. Referring to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 and s 5AAA of the Act, the Minister submitted that the Authority was not required to consider a claim that had not been made.

54    The Minister submitted that the Authority’s finding that the appellant would not continue to consume pork and alcohol on return to Afghanistan was plainly open, having regard to the fact that neither pork nor alcohol would be readily available in Afghanistan and the appellant did not claim he would continue to consume pork or alcohol on return to Afghanistan. The finding supplied the “evident justification for not proceeding to consider getting, or getting, new information directed to whether the appellant would continue to consume pork or alcohol in Afghanistan”. In this context, the Minister also submitted that “[i]t was for the appellant to particularise his claims and need for protection” and “the Authority was under no obligation to assist the appellant to develop his claims or to consider whether there may be some other claim”. For these reasons, the Minister contended that there was no unreasonableness in the Authority’s finding, in the context of considering the complementary protection criterion, that the appellant would not continue to consume pork and alcohol on return to Afghanistan.

55    Ms Taggart submitted that the Authority’s reference in its reasons to the appellant not having claimed that he consumes pork and alcohol as a form of religious (or anti-religious) expression should not be understood to suggest that the Authority was aware of the possibility that the appellant’s consumption of pork and alcohol could assume a religious dimension and engage s 5J(3)(c)(i). Rather, so Ms Taggart submitted, this part of the Authority’s reasons was simply emphasising that the appellant had made no claim that his consumption of pork and alcohol reflected any religious or other deeply-held belief.

56    It was on the basis that no such claim had been made that the Authority reached its conclusion that it was “satisfied that it would be reasonable for the [appellant] to modify his behaviour” by abstaining from pork and alcohol on return. In summary, Ms Taggart submitted that:

[I]n the context of the appellant being responsible for advancing his claims, having advanced the claims that he did along the lines of, “Well, I’m not a practising Shia Muslim, I will have difficulty reintegrating, I will be perceived as westernised”, a complete silence as to any claim as to holding particular religious beliefs or not holding particular religious beliefs as distinct from not practising or not having certain knowledge about praying and the like, all of those circumstances taken together provided the reasonable or intelligible justification for the Authority to come to the conclusion that [it] did. Or perhaps more properly, is the intelligible justification as to why the Authority reasonably did not seek or – one assumes – did not consider seeking new information about that.

57    For the sake of completeness, I note that Ms Taggart informed the Court that the Minister “does not rely on paragraph [43] as a separate isolated finding independent of the context of the reasons as they develop”.

consideration

58    I accept that, as the appellant submitted, the power to get new information under s 473DC of the Act is conferred “on the implied condition” that it is to be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [21], [86]; ABT17 at [3], [19]; and CRY16 at [40], [82]. In CRY16, a Full Court of this Court held that, in the circumstances of that case, the Authority had “disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation” by failing to consider exercising the power conferred by s 473DC without evident and intelligible justification. The Full Court concluded that the Authority’s review failed for jurisdictional error.

59    The circumstances presented by this case, however, cannot be equated to those in CRY16. Reference to the Authority’s reasons in this case shows that there was no unreasonable failure on the Authority’s part to consider exercising the power to get new information pursuant to s 473DC, and the Authority did not disable itself from considering any of the appellant’s claims on the review according to law.

60    As indicated above, the claims made by the appellant, who identified himself as being Shia Hazara, included that he was no longer “religious” or “very religious”; that he did not follow the religious teachings; that usually he did not pray and fast; that he “occasionally” drank beer; and that he ate pork. The Authority clearly acknowledged these claims, and its reasons show that it gave careful consideration to them: see, for example, AR [35].

61    In its reasons at AR [37]-[39], the Authority found that, throughout the primary decision-making process, the appellant had consistently described himself as a Hazara Shia. It specifically acknowledged the appellant’s claims that he did not follow religious teachings (including those about abstaining from the consumption of pork and alcohol, prayer and fasting). This led the Authority to accept that he did not “actively practice Shiism” or consider himself religious: AR [37].

62    This latter finding led the Authority to consider whether the appellant’s statements “from the point of application, through the interview, and the post-interview statement and submission” led to the conclusion that the appellant’s religious belief had “evolved to a point of abandonment”: AR [37]. The Authority did not find this to be the case. In its reasons at [38], it found that the appellant “has not at any time indicated that he no longer believes, or that he has converted to or explored any other religion”; and “[h]e has not indicated that he is an atheist, secularist or any kind of convert”: AR [38].

63    The Authority’s consideration of the appellant’s religious practice and belief at [37] and [38] of its reasons provided the context in which it considered the more specific issues relating to his consumption of pork and alcohol. At [40] of its reasons, the Authority accepted that the appellant drinks alcohol and eats pork, although he knew that this was “haram” because of his upbringing “in a Shia Afghan family in Pakistan”, and that it was not permitted in Islam and in Afghanistan. It was primarily for this reason that the Authority held that “he would not consume these items on return” to Afghanistan, while also noting that the items would be unavailable in Afghanistan “in any event”.

64    The appellant’s reliance on the statement in [40] of the Authority’s reasons regarding his consumption of pork and alcohol was misplaced. The Authority’s statement that the appellant never claimed that he had “an addiction of any kind” to these items, or that their consumption was “a fundamental characteristic of his identity, or that he does this as a type of religious (or anti-religious) expression or that it is important to him in any way” was not indicative of any doubt about the importance to the appellant of his consumption of pork and beer. Nor can this passage be understood as an indirect statement by the Authority that it considered it possible that his consumption of such items might have some other potential, but unknown, relevance to his religious belief. The passage simply does not support the appellant’s contention that the Authority was in such a state of doubt that, if it were to act reasonably, it had to consider exercising the power in s 473DC to get new information. Rather, this passage expresses the Authority’s affirmative finding that the appellant did not claim that consumption of these items had any particular religious or other importance to him and, by implication, that his consumption of these items was not important to him in the ways contemplated by s 5J(3)(a)-(c).

65    Furthermore, the Authority’s analysis at this point was entirely consistent with s 5AAA(2) and (4) of the Act. These provisions expressly provide that it is the visa applicant’s responsibility to specify the particulars of his claim and to provide sufficient evidence to establish it, and that the Minister is under no obligation to assist in specifying such particulars or in establishing the claim. That the Authority’s analysis was consistent with the governing statute is important, bearing in mind that the statute necessarily affects the boundaries of legal reasonableness in such a case as this.

66    As the Minister submitted, because no claim of this kind was made, it was open to the Authority to conclude that it was “satisfied that it would be reasonable for the [appellant] to modify his behaviour” by refraining from consuming pork and alcohol on return to Afghanistan. The appellant’s submission that he did not claim the protection of s 5J(3)(c)(i) of the Act because the provision was not raised by the delegate is beside the point. The appellant, assisted by his migration agent, made no claim that could attract the protection of this particular provision.

67    Perhaps one might be tempted to conclude that the Authority made some error about the pork and beer issue because the Authority also found the appellant knew that eating pork and drinking alcohol was ‘haram’ and not permitted in Islam. The Authority’s reasons show, however, that it gave detailed consideration to this aspect of the appellant’s claims, having regard to the context in which the appellant raised the issue: that is, within the context of his claims about the difficulty of his reintegration into Afghanistan on account of his westernisation, the consequences of imputed apostasy on account of his un-Islamic behaviour, and his identity as a Shia Hazara who, although not especially observant, had not abandoned Shia Islam. When this is borne in mind, the possibility of error evaporates.

68    For the reasons set out above, I accept that, as the Minister submitted, the Authority never arrived at the point that is necessary for Mr Aleksov’s argument to succeed. I accept that, having regard to its in-substance conclusion at [40] that none of s 5J(3)(a)-(c) applied, the Authority made no error respecting s 473DC or in concluding that it would be reasonable for the appellant to “modify his behaviour” by not eating pork or drinking alcohol on his return to Afghanistan in order to avoid a real chance of harm. In considering the complementary criterion, it was clearly open the Authority to find that the appellant would not continue to consume pork and alcohol on return to Afghanistan since these items would not be available there.

69    For the reasons stated, there was, in this case, no occasion requiring the Authority to consider whether it should get further information from the appellant in exercise of its power under s 473DC of the Act. It cannot be said that the Authority’s failure to do so was legally unreasonable in that it lacked evident and intelligible justification or for any other reason: cf. Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [52]. The circumstances in this case did not therefore resemble the situation that fell for consideration by the Full Court in CRY16.

disposition

70    For the forgoing reasons, I would dismiss the appeal, with costs to be agreed or assessed. I note, though, that the appellant’s claims in support of a protection visa were first made in June 2017. These claims were considered by the delegate in February 2018 and by the Authority in August 2018. The Taliban has since taken control of the government of Afghanistan. In these circumstances, the appellant’s situation warrants reassessment.

Associate:

Dated: 1 November 2023