DQU16 v Minister for Home Affairs & Anor [2021] HCATrans 6 (4 February 2021)

Last Updated: 9 February 2021

[2021] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S169 of 2020

B e t w e e n -

DQU16

First Appellant

DQV16

Second Appellant

DQW16

Third Appellant

and

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
KEANE J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 FEBRUARY 2021, AT 9.45 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ: In accordance with the current practice, I will announce the appearances.

For the appellants, MS C.A. WEBSTER, SC appears with MS I.J. KING and MS E.C. GRAHAM. (instructed by Clifford Chance)

For the respondent, MS A.M. MITCHELMORE, SC appears with MR G.J. JOHNSON. (instructed by the Australian Government Solicitor)

KIEFEL CJ: Yes, Ms Webster.

MS WEBSTER: If the Court pleases. The appeal before the Court concerns the application of section 36(2)(aa) of the Migration Act 1958 regarding complementary protection and the way in which the second respondent, the Authority who has submitted in the proceedings, went about its statutory task of reviewing the Minister’s decision to refuse a protection visa to the appellant and consequently to the second and third appellant. The primary claim was made by the first appellant.

The Authority found, when it was considering the first appellant’s refugee claim, that if he was returned to Iraq, he would be concerned about his own safety and the safety of, it was admitted in the finding, his wife and child, being the second and third appellants, and would not engage in selling alcohol given the risks associated with selling liquor. That finding is identifiable in paragraphs 39 to 40 of the decision of the Authority in this matter in core appeal book tab 1, pages 12 point 50 to 13 point 10.

I will in a moment take your Honours to the findings of the Authority in respect of the refugee claim. There were a number of other findings, including what might happen to the first appellant if he were, contrary to what he had been doing before he left Iraq, cease selling alcohol and repent and that reference is to be found at paragraph 33 of the decision of the Authority in core appeal book 1, page 11 point 40 to 11 point 50 and I will come to take the Court to look specifically at the findings but if I might just set the scene, as it were.

Our contention is that the Authority erred in which the way – I withdraw that – the Authority’s error occurred in how it then applied findings that it made with respect to the refugee claim in the determination that it secondly turned to regarding the claim for complementary protection without a separate consideration in the Authority’s determination of the complementary protection claim for the reason in which his behaviour would, it concluded, change were he returned to Iraq.

Now, we contend that the error arises because the Authority did not, as this Court held in Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473 and the report is found in the joint book of authorities Part C, volume 5, tab 6. I will not ask your Honours to go to that decision immediately but I will invite consideration of the particular aspects of the decision that we rely on and contend ought to have been applied by the Authority in determining the complementary protection claim.

In S395 in connection with a refugee claim and at a time before the Act was in the form that it took at the time of the Authority’s determination in this matter, there was a holding of this Court that focusing on an assumption about how the risk of persecution might be avoided is a diversion from the task of the Tribunal in applying the legal test for a refugee claim – a real risk of persecution is the relevant test. The tests are found separately in the legislation.

If I might notice, first, the issues in this case arising out of the claim in which ‑ the way in which we contend that the Authority erred are whether, in determining a claim for complementary protection under section 32(aa), a decision‑maker should apply the principles in S395, and whether it is open to the Authority, where that is the relevant decision‑maker, to apply findings made in the course of determining the refugee claim as to modification of behaviour without addressing the reason for the intended change.

Our contention is, and we say that this is apparent from the legislation, that there are two distinct statutory tasks for the Authority, when it is the decision‑maker in respect of claims for protection visas, to deal with a complementary protection claim, to which it will turn only after determining adversely to an applicant a claim for refugee status. There must be, we contend, a separate consideration of and determination of the complementary protection claim applying the test to be found in section 36(2)(a).

The Authority must engage with the language of the section, and it is incumbent upon it to distinguish between the two tests. There must be an engagement with the question, we say, of whether there is a real risk that the appellants, the applicants, the visas, will suffer significant harm, and the principles in S395, we contend, should be applied in determining a claim for complementary protection.

STEWARD J: Ms Webster, may I ask a question. Is your complaint about a lack of independent consideration separate from your complaint about S395?

MS WEBSTER: No, it is part of the same contention.

STEWARD J: They are bundled up?

MS WEBSTER: Yes.

STEWARD J: All right. Thank you.

MS WEBSTER: We had a single grant of appeal, as your Honours will have noted, which focuses on the question of S395 and in the course of the matter we have identified two issues that the Court would address in dealing with our single ground of appeal, if the Court pleases. We have identified in the written submissions the factual findings that were made. If I might outline those, they were made and found in the decision of the Federal Court – Justice Reeves – in core appeal book tab 8 at page 74, paragraph 3 and in a short form ‑ ‑ ‑

GORDON J: Were those findings or the claims made by the appellant set out there in paragraph 11 in Justice Rangiah’s judgment? I understood they were the claims rather than the findings.

MS WEBSTER: Paragraph 11 of Justice ‑ ‑ ‑

GORDON J: No, it is paragraph 3 of Justice Reeves, by reference to paragraph 11 of Justice Rangiah.

MS WEBSTER: Paragraph 11 of Justice Rangiah’s claim were indeed the claims that the applicant made and the claims that the applicant made had been set out in the Authority’s decision at paragraph 9 commencing ‑ ‑ ‑

STEWARD J: Which the Authority did not accept in large measure.

MS WEBSTER: Not all of the claims that were made, no. The claims that were made were broader than those findings which were made favourably to the appellant. But there are significant findings made favourably to the appellant upon which we rely. The claims, as your Honour Justice Gordon drew to my attention, in paragraph 11 were the applicant’s claims and that was in the decision of Justice Rangiah in core appeal book 47.

The factual background is that the first appellant is an Iraqi male and he had – and this was a finding made by the Authority – worked as an alcohol seller in that city between 2010 and July 2012 when he left Iraq.

KIEFEL CJ: The Authority did not expressly deal with the question of whether there was a social group constituted such as businessmen who sell alcohol, but as Justice Rangiah noted the Authority appears to have – implicitly at least – proceeded upon the basis that there was such a social group.

MS WEBSTER: Indeed, your Honour. Perhaps if I turn immediately to the Authority’s findings upon which I rely, and that implicit acceptance we would say follows from paragraph 17 in particular of the Authority’s decision.

KIEFEL CJ: And that has never been put in issue?

MS WEBSTER: No, your Honour.

KIEFEL CJ: There might be questions about it, but it probably is less important for the complementary protection argument which you put than it does for the status of a refugee.

MS WEBSTER: Yes, your Honour. The finding with respect to those who sell alcohol - and quite significant findings are in the Authority’s determination which is found at tab 1 of the core appeal book, commencing, if I can invite your Honours consideration - I had said I would take your Honours to the Authority’s finding, and if I do so at this point - page 8 of the core appeal book. While that is open, your Honours will see paragraph 13 of the Authority’s decision and acceptance of the consistent claims made by the first appellant that he was, in the way in which I outlined, between 2010 and July 2012, an alcohol seller. That was accepted on the evidence and your Honours see that between lines 20 and 30, paragraph 13 of the Authority’s finding.

There is an important finding I would ask your Honours to note at line 40 on that page, in the middle of page 15. The Authority is there dealing with the report of the UNHCR and there is an acceptance, if your Honours see, at line 40 that extremists reportedly attacked liquor shops and clubs with impunity ‑ ‑ ‑

GORDON J: I wondered about that, I am sorry to interrupt, but I thought when I read 15 that the first sentence dealt with the information from the UNHCR, the second dealt with media reports, and the third was country information. It seemed to be three separate sources of information, giving rise to separate findings about their effect and I thought that was about media reports.

MS WEBSTER: Your Honours, your Honour Justice Gordon is entirely correct, I admit that the second sentence commences – which is a media report, the UNHCR reference was to banning, that is the first part of paragraph 15, banning of alcohol shops by local law, and so when your Honours see that your Honour Justice Gordon’s point is indeed the media reports of two incidents and there is nonetheless, we submit, great significance in the recording by the Authority here for those findings which are subsequently made of the reported attacks on liquor shops and clubs with impunity. And then, as your Honour Justice Gordon said, in the third part of paragraph 15:

The country information in the post-interview submission regarding reported incidents relating to alcohol shops and sellers being targeted and attacked . . . [being] broadly consistent with the UNHCR information.

Those matters, in our submission, are then significantly taken up in paragraph 17 of the Authority’s findings, page 9, notwithstanding some concerns at the Authority’s finding level in relation to a YouTube video which had been relied upon. If your Honours see line 10 in the third sentence:

Nonetheless, I am prepared [to] accept –

And your Honours see that there is a prohibition on the sale and consumption of alcohol and we have identified the particular cities in the way in which our submissions were put in the form of publication, and your Honours would have seen that in the form of our written submissions, which is consistent with the UNHCR information that alcohol is considered un-Islamic or immoral behaviour and there they are forbidden and prohibited in the primarily conservative Shia areas in Southern Iraq.

In view of the country information the Authority was prepared to accept that:

claims that in 2009 JAM found out that the –

first appellant’s cousins:

were drinking and they were beaten and whipped; and that he has a friend who works in the field was injured by JAM.

Thirdly, the Authority was:

prepared to accept the post-interview submission that in Iraq, prohibition on alcohol makes alcohol selling a viable business from a monetary perspective –

There is a known incidence of smuggling. And significantly, and this is returned to by the Authority:

selling alcohol is a risky but common business in Iraq.

The matters that were canvassed in paragraph 15 of the Authority’s submission in relation to the three sources of information, we submit are bound up and found expression in these findings in paragraph 17.

STEWARD J: How do those findings make out significant harm as defined?

MS WEBSTER: It is the riskiness, inherent riskiness, of selling alcohol and, particularly, the attacks that are accepted, we say, in paragraph – reported in paragraph 15 and these findings about risky and common business as to reported attacks on liquor shops and clubs with impunity.

STEWARD J: How do you put it? It is not the death penalty. Is it risk of torture, cruel or inhuman treatment, degrading treatment or punishment? How do you put it?

MS WEBSTER: It is well outside the scope of lawful punishment when attacks are being carried out by ‑ ‑ ‑

STEWARD J: Just focusing on the definition, are you putting it as torture, cruel or inhuman treatment or degrading treatment or what as defined?

MS WEBSTER: The additional aspect of the Authority’s finding in terms of the nature of alcohol selling – if I might, before I attend directly to your Honour Justice Steward’s question, one sees on page 11 of the core appeal book paragraph 33 and this builds on the finding in paragraph 17 to which I invited your Honours’ consideration, it would be about line 45 and there is a reference back to the findings that were made in paragraph 17:

I have accepted that alcohol is forbidden and prohibited . . . and that alcohol sellers are targeted.

And the targeted aspect, in my submission, is a reference and an acceptance of the attacks in paragraph 15. So, the targeting is being accepted expressly by the Authority here and then there is a reference, as I had mentioned earlier in my opening, about suggestions that there could be forgiveness if a former alcohol seller was to cease selling alcohol and repent.

In paragraph 33 there is some of the aspects of the claims that were made that were not accepted as the matters that had occurred in the past but the next finding to which I invite the Court’s attention before I do attend directly to your Honour’s question, in paragraph 38 there is a repetition again of the acceptance in paragraph 17:

that selling alcohol is a profitable but dangerous business in Iraq.

That is in the context of what other employment might be undertaken by the first appellant. And then, particularly in paragraph 39, this is in terms of a conclusion in relation to the refugee claim, were the:

applicant husband returned to Iraq, he will be concerned about his own safety and the safety [of] his child –

so an express concern about the safety of the three members of the family were he to again engage in selling alcohol. If I just read the language of the Authority at the top of page 13 of the core appeal book. So, because of the concerns about the safety to the family members, himself and his wife and child, he:

would not engage in selling alcohol given the risks associated with selling liquor.

All of these findings in the Authority’s decision amount to a conclusion and an acceptance on the part of the Authority that an alcohol seller is someone whose personal safety is at risk, and it is a risky, dangerous business to engage upon in Iraq, and with the targeting of alcohol sellers.

And, as I noted earlier, the reported attacks on liquor shops and clubs, and I do place emphasis on the fact that the report, which appears to have been accepted, “attacks with impunity”, so that one is outside the scope of lawful punishment for something which is accepted to be banned by local law, but attacks with impunity that create such a risk to the personal safety of the alcohol seller or the members of that person’s family, create such a risk that, for the refugee claim, in that different statutory context where changed behaviour is to be considered because of the definition now found of a refugee claim, there is a conclusion that, were he returned, he would not engage in selling alcohol.

STEWARD J: So how is it put, then, for the purposes of the definition?

MS WEBSTER: It is put in terms of the – I should address it in terms of the statute, because your Honour is looking at the statute, and I had ‑ ‑ ‑

STEWARD J: Sorry about that.

MS WEBSTER: ‑ ‑ ‑ indeed indicated to the Court that I would turn to the statute, because we say they erred in approach to the statute. Now, the relevant definitions, for this purpose, are in terms of ‑ and one finds this in the Migration Act, which extends past the first volume, but relevantly in Part A of the joint book of authorities, volume 1, the definitions are in section 5, as I am sure your Honours are familiar, relevantly on page 41 of the volume:

cruel or inhuman treatment or punishment –

we note, there is (a) and (b):

severe pain or suffering ‑

. . .

pain or suffering . . . intentionally inflicted –

The Authority did not deal with the matter in terms of finding exactly what kind of pain and suffering, but the findings in paragraph 15 ‑ I should not say a finding ‑ the matters drawn to attention in 15, the findings in 17, 33, and 39, to which I have returned in terms of the conclusion, perhaps loosely expressed and without reference to the statutory forms, and that is indeed part of our complaint, as to the risks involved in selling alcohol because of attacks which would be undertaken with impunity, and we say, accordingly, without lawful sanction, bring into play the definition of “cruel or inhuman treatment or punishment”, and equally, “degrading treatment or punishment”, which:

causes, and is intended to cause, extreme humiliation which is unreasonable –

Now, again, the difficulty is, in part, because the Authority did not turn its mind to the test in terms of the statutory obligation which it had, to make findings in those terms, nonetheless, we say, those matters to which I have invited the Court’s attention in terms of the dangerous nature, which was accepted, of selling alcohol, and the risks to safety and the acceptance, in paragraph 17, that in 2009, cousins of the applicant, husband of the appellant:

were beaten and whipped –

and that there was an injury, the nature of which is not specified, for the:

friend who works in the field –

Now, those were the findings to which I had invited consideration in paragraph 17 of the decision.

GORDON J: You accept that none of the applicant’s claims that he was personally targeted were accepted?

MS WEBSTER: Those matters were not personally acts of – indeed, as your Honour Justice Gordon puts it, the claims that he made as to personal attacks upon him or being followed or having telephone calls made, those claims were not accepted.

GORDON J: There was also a finding that he was not a person of interest.

MS WEBSTER: That is so, your Honour. Your Honour is perhaps drawing my attention to the findings and the non‑acceptance of a number of matters from paragraph 29 of the Authority’s decision, which is at page 11 of the core appeal book. This is not the subject of the current appeal. We have a single ground of appeal because leave was given on a limited basis to appeal by Justice Rangiah in the Federal Court. Other matters - whether the appeal from Judge Street’s decision not so out of time may well have come into play, but were the matter at a broader stage, one may have issues about the decision‑making process that is reflected in paragraph 29 of ‑ ‑ ‑

GORDON J: That is not an issue in this appeal but you must, in effect, deal with those findings as they are.

MS WEBSTER: I do. I have to accept those findings as they are and the findings that were made by the Authority and the state of the matter as it stands is that personal complaints made by the applicant as to incidents of personal harm upon him or being followed or targeted were not accepted.

EDELMAN J: Once that point is taken as accepted, then although the Authority did not turn its attention to section 36(2B)(c), why would not this case fall squarely within a risk, if there be one, that is faced by the population of the country generally?

MS WEBSTER: Because the risk that has been found and the risk that was identified and accepted in its consideration of the refugee claims in paragraphs 17, 33 and 39 is not a risk for the population generally but to that part of it - those who engaged in the practice which was unlawful according to local law and targeted in particular ways of selling alcohol, and that is not, in our submission, the population as a whole.

EDELMAN J: Could that not be said about any unlawful practice ‑ a person who claims that if they are returned they would be targeted for engaging, for example, in theft? That type of argument would then suggest that theft is not a real risk that is faced by the population of the country generally.

MS WEBSTER: No, your Honour because it is a hypothetical at large and it is a characterisation of - it is an instrument of unlawful conduct, as the alcohol selling is unlawful conduct, but as I indicated we place significance on the fact of attacks with impunity outside, we say, the scope of lawful sanctions for those who engage in alcohol selling. So it takes it out of the characterisation and out of the class of matters which would be the population as a whole.

In terms of how those factual findings were applied ‑ I had identified earlier and I will deal with the statutory provisions while I had been in the Authority decision – the factual findings all appear, as your Honours will have seen, in that section of the Authority’s judgment which dealt expressly with the refugee claim and which, under the law as it applied to that claim, properly considered questions of reasonable modification of behaviour, given section 5J(3).

However, when it turned in a much shorter fashion to the complementary protection claim – that commenced at paragraph 57 of the Authority’s decision, core appeal book, page 16 – there is a statement of – a recitation of the criteria, in paragraph 57, and the Authority does set out, in a bullet form, the aspects of significant harm under the definition in section 36(2A).

But, the way in which the Authority dealt with the factual matters, and dealing with factual findings, was simply, we say, to bring across without considering the appropriateness of this and without separately looking at the two different tests which are to be applied, the conclusion that the Authority had reached that the applicant husband could take reasonable steps to modify his behaviour by ceasing to sell alcohol to avoid what was accepted to have been an otherwise real chance of harm and the language that is used here is “real chance of harm”. It is not, in fact, the statutory test but “real chance of harm” is found in paragraph 59.

The finding at paragraph 60 picks up the finding that had been made earlier in relation to the refugee claim that he would not because of the risk – this was paragraph 39 of the Authority’s decision – he would not because of the risk to himself and his family continue to sell alcohol upon return. The sole finding then in relation to this is then encapsulated in paragraph 61 of the Authority decision. Your Honours see that on page 16, just after line 40:

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.

Our contention is that that approach to the determination of the section 36(2)(aa) question for complementary protection was not a proper application of the separate statutory test that the Authority was bound to apply.

KEANE J: But you do accept, do you not, that that test did involve a question whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Iraq, the risk would arise? When the Authority makes the findings that it does, at 60 and 61, is that not tolerably, clearly, a finding that because your client would not continue to sell alcohol, the risks of harm that would otherwise arise, they are not necessary and foreseeable consequences of his removal.

MS WEBSTER: Well, that would only be the case if he is to cease to sell alcohol.

KEANE J: Quite. But if ‑ I mean, why is it necessary that he continue to sell alcohol when he can and would choose not to? If that choice obviates the risk, then incurring the risk is not a necessary and foreseeable consequence of his removal. It is simply a consequence of his – to court the risk by continuing to sell alcohol, is the result of a choice. It is not a result of his removal.

MS WEBSTER: The behaviour in which he would engage if returned would – his evidence had been the only thing that he had been able to undertake as a occupation.

KEANE J: Well, that is probably not a right as a matter of factual finding, is it, given that the evidence that is referred to refers to the circumstance that he has other ways of making a living and could turn to them?

EDELMAN J: Paragraph 41.

GORDON J: Or even before that. There is 36, 37, 39, 41 where there are findings that he would not engage in selling alcohol.

STEWARD J: Particularly paragraph 37, where he appears to have made a conscious choice, pre‑existent to the Authority’s decision, that he would not sell alcohol.

MS WEBSTER: Well, at 36 he claimed that he had failed to get any other job, and his financial needs led him to work in alcohol sales, and there was an acceptance of ‑ ‑ ‑

STEWARD J: What about the first sentence of 37?

MS WEBSTER: Yes, I have – that is the conclusion that the Authority drew contrary to his ‑ ‑ ‑

STEWARD J: No, it is not a conclusion, they are reciting what he said.

MS WEBSTER: That he had completed certain studies, and that he could utilise his skills and knowledge, is the Authority’s conclusion.

GORDON J: I think there are two aspects to it. The second sentence of 37, as I read the Authority’s reasons, he stated he:

decided to quit selling alcohol.

That is the first. Then you come down to 38, there is a conclusion in line 4:

not persuaded that he would continue to sell alcohol ‑

Then in 39 there is a finding he:

would not engage in selling alcohol given the risks ‑

Then there is two or more others in, I think, 41 and 42.

MS WEBSTER: But our contention is that the 36(2)(aa) test is a distinct one from 36(2A), and there are a number of incidents, statutory incidents and changes that have been made deliberately by the legislature to the refugee contention that simply do not appear and have no application to the complementary protection. And one sees that in ‑ ‑ ‑

STEWARD J: You say that, but if you look at paragraph 59, in the last sentence, they ask the question to which complementary protection is directed at, and there does not seem to be an error in the way that is expressed, and then they answer the question in 60 and 61, but they do not repeat in the same level of detail why they have decided as a finding of fact that the applicant will not “suffer significant harm” “as a necessary and foreseeable consequence” of removal.

MS WEBSTER: There are findings that were made at the earlier point which are not given any consideration expressly in the determination of the complementary claim. There is no reference here to the conclusion that alcohol sellers where targeted. The finding that I had invited your Honours’ attention to at paragraph 33, there is no reference to the harm that had – that it was accepted had occurred - the acts of violence to the cousins and the friend, they were recorded in paragraph 17 - no reference to those various aspects of the findings ‑ ‑ ‑

STEWARD J: Would they be relevant if a finding of fact had been made that he would not sell alcohol if returned?

MS WEBSTER: The finding as to “would not sell alcohol if returned” really involves a question of the reasonable adjustments that could be made, the 5J(3) question that was addressed by the Authority in dealing with the refugee claim because this case obviously occurred at a time when it was incumbent – I withdraw that. Following the decision in S395, there were those various amendments made to the legislation by the 2011 amending Act and they expressly change those matters and the way in which one was to assess a refugee claim.

EDELMAN J: But it may be that the “would” finding is in fact not consistent with the statutory language anyway. The statutory language requires an assessment of whether there is a real risk of significant harm, not whether, on the balance of probabilities, something that is found would be done would prevent significant harm. In other words, it is a more liberal test to ask whether there is a real risk that he would sell alcohol upon return than to ask whether, on the balance of probabilities, he will sell alcohol on return.

MS WEBSTER: The test for the refugee question is ‑ ‑ ‑

EDELMAN J: I am talking about the complementary protection.

MS WEBSTER: The complementary protection - the complementary protection – is there a real risk that he will suffer significant harm if returned, as your Honour says, in 2(aa), and that was the question which they ought to have addressed in those terms.

EDELMAN J: Let me put it this way. If the Tribunal had said expressly that the finding is that there was no real risk that he would work as an alcohol seller upon return, would there be any argument left that you could raise?

MS WEBSTER: Well, if the Authority had – we would still ‑ ‑ ‑

EDELMAN J: So even if there were no real risk that he would return to work as an alcohol seller, and therefore no real risk that he could be exposed to any significant harm, what work would there be for complementary protection left?

MS WEBSTER: But that is not the way in which the Authority dealt with it, your Honour.

EDELMAN J: Well, the question then is whether the finding that he would not work as an alcohol seller upon return is effectively a finding that there is no real risk that he would work as an alcohol seller on return, given the strength of the underlying foundations for the “would not” finding.

MS WEBSTER: But that is the question that they did not embark on in those terms, and that is one of our complaints, that they did not look at the question, which is, for the purposes of the complementary claim the statutory test is, is there a real risk that he will suffer harm as a necessary and foreseeable consequence of being removed? They did not turn their minds and approach their statutory task by reference to the language and look at the matter so as to answer that question.

EDELMAN J: Do you accept, though, that if they had considered using the word “would” - had said “no real risk”, that that would have satisfied the statutory test?

MS WEBSTER: If that had been the extent to which they had made their findings, but that is not the language that they used. If they had used that language, then I would have a different and much – it would be hard to make the complaints that we do about what they did, but the findings with which we are faced and the findings that the Authority made were not in that language and, in our submission, this Court would not reinterpret what is done.

We are stuck with certain of the Authority findings, although we might make complaint about the way in which they went about the decision-making process. As your Honour Justice Gordon said, the findings are what they are, and we have a single ground of appeal. So I am stuck with a number of those matters where the claims that were made were dismissed for reasons which we think other things could be said about, but that is not the concern for this Court. The question is the complementary ‑ ‑ ‑

EDELMAN J: Your submission is not really an S395 case, though, is it? Your submission is really to say that what the Authority found is that it made a finding of what would happen on the balance of probabilities rather than finding what there was a real risk of happening.

MS WEBSTER: I would not embrace that characterisation of our case, your Honour. What did not occur here and what the Authority did not address is that the refugee claim was expressly dealt with on a basis that post S395 where this Court said with some care it is not a sufficient discharge of this country’s protection obligations under the conventions to make conclusions about ways in which one could avoid a risk of persecution by living discreetly.

In that case – I probably do not need to take your Honours to S395 in terms of the language that was used in the paragraphs ‑ it is not a sufficient discharge of the Refugee Convention protection obligations to conclude that if you were to live discreetly, if you were not to engage in the conduct that would bring you to the attention of authorities or the social aspects of not living discreetly as a homosexual couple in Bangladesh, to assume that to live discreetly would avoid the harm is not a sufficient discharge of the protection obligations.

Post S395, as you know, the legislation was changed. There was a definition introduced in section 5 of “refugee” which directed attention to section 5H in terms which is the meaning now to be given to “refugee” and particularly section 5J, which restricts what might otherwise have been the way in which one could establish the refugee status because certain aspects of conduct which could reasonably be changed will not, under section 5J(3), provide the person with a well‑founded fear of persecution if there were certain aspects in which it would be reasonable to modify the behaviour to avoid the language in 5J(3) - if you could take reasonable steps to modify behaviour so as to avoid a real chance of persecution in a receiving country and certain modifications.

The Authority’s findings, those findings to which I have invited attention so far were inherently findings made with a view to the existence and application of 5J(3) as to modifications of behaviour. Those matters were dealt with and that was S395. S395 made it clear the reason why someone might change the behaviour is a relevant consideration. One cannot just assume that living discreetly will avoid any of those issues which would otherwise amount to and cause or potentially attract harm to the person.

There is, in our contention, on the statutory scheme – so looking at 36(2)(aa) absolutely no equivalent statutory carve‑out, as it were, for modifications of behaviour. The modification of behaviour question which is expressly the subject of consideration - and, indeed, one sees that in 59 - there is a reference to section 5J(3) but it is fairly oblique and opaque. There is no statutory warrant for failing to address the question in its terms: is there a real risk that the non‑citizen will suffer significant harm? There is no question that there is to be some reasonable modification of behaviour which might be embarked upon.

KEANE J: No, but the question is whether the risk of harm is a necessary and foreseeable consequence of removal and the answer to that is that it is not a necessary and foreseeable consequence of removal because he will not continue to engage in the conduct that attracts the risk.

There is an irony, if I may say so with respect, in your submissions that your principal complaint is that the test in relation to complementary protection is different from the test in relation to refugee status and yet you are insisting that the test in relation to refugee status be applied in relation to complementarity. Indeed, it is not even a test that applies to refugees any more. But the S395 test is concerned to say that a characteristic that entitles a person to qualify as a refugee cannot be – you cannot ignore that by saying, well, they could act differently. That is about a quality, a characteristic of a person that entitles them to be a refugee. That is not the question here.

The question is whether there is a risk of harm that is a necessary and foreseeable consequence of removal and the answer the Tribunal gave to that is that it is not a necessary and foreseeable consequence of removal, that he will continue to sell alcohol and, therefore, put himself at risk.

MS WEBSTER: But there has been no assessment in the way in which the Authority addressed itself to the task as to whether the modified conduct, so here the ceasing to sell alcohol, was influenced by a threat of harm.

KEANE J: But you are not contending that there is an immutable characteristic, or some fundamental right protected by the statute and the treaties, to engage in the business of selling alcohol?

MS WEBSTER: No. But what one has to accept is that engaging and selling alcohol is of a different quality than, for example ‑ ‑ ‑

KEANE J: To the human characteristics that are protected by the treaty.

MS WEBSTER: In terms of the kind of characteristic identified and the subject of S395?

KEANE J: Yes.

MS WEBSTER: One has to accept that engaging in selling alcohol – although it attracts all of those consequences in Iraq that were the subject of the Authority’s findings – I cannot put it in the same category as, for example, S395. That would an impossible argument and I am not making it. But there was an implicit acceptance of the existence of a social group – those who engage in selling alcohol – and, indeed, in CTY15 v Minister for Immigration and Border Protection that is reported – it is not reported – it is [2019] FCA 197 at 27 – I withdraw that – 197. The decision is found in the joint book of authorities in Part D, volume 6.

A decision of Justice Perry in the Federal Court that was ‑ in its essence, the appeal that Justice Perry was dealing with from the Federal Circuit Court was a question of a failure on the part of the Tribunal to have dealt with an implicit claim but the nature of the claim that had been made below, the second appellant wife was an Iranian female who did not wish to abide by the laws of Islam extremism, particularly in relation to the dress code.

Now, her Honour was not dealing expressly with the complementary protection claim. One sees that at paragraphs 26 and 27. We have placed reliance on 27 and then 52 but I would invite the Court to look first for the context in terms of the context for what is said in paragraph 27. So, at page 140 in the PDF volume, the consecutive numbering, 1596 of the joint book, Justice Perry noted that:

The delegate also considered that the applicant did not satisfy the complementary protection criterion –

And women who did not accept and dress in accordance with the dress code would be harmed:

by lashings or various forms of torture –

The delegate had concluded that:

the wife did not face a real risk of significant harm for contravening the dress code –

reasoning, and the quotes from the delegate’s decision appear at about point 5 on the page:

I consider it important that in the three months the applicant continued to reside in Iran she purposefully dressed in accordance with the dress code.

So, there was a change in the way in which she had otherwise dressed and behaved in terms of make‑up and tight clothes and heels:

There is no evidence or reason to indicate the applicant will not continue to dress in accordance with the dress code should she return to Iran.

The matter goes on with a particular incident that had occurred which her Honour had dealt with earlier. For the same reasons – this is a little further down, the last four lines of the first extract of the paragraph:

I am not satisfied the applicant is in breach of the Iranian moral code or that there is a real risk she would face significant harm for this reason.

And they continued. Although her Honour ‑ and I do not pretend that this was otherwise than dicta from Justice Perry, but it is an express consideration of a social class, which has analogies here ‑ that is women who did not abide by strict Islamic dress codes. At 27 to which we had placed reliance in our submissions:

(I interpolate to observe that the reasoning in these passages would seem to run counter to the principles explained in Appellant s395/2002 ‑

This was not the decision that was the subject of her Honour’s consideration. She said ‑ Justice Perry said she would return to that question and did so at paragraph 52. And page 149 of the pdf, page 20 of the actual Federal Court judgment, 1605 in the joint book, “to the extent”, picking it up along the line in 52:

that the Tribunal considered that the wife could avoid persecution by complying with the dress code or not going out as the wife claimed that she had done in the past, the Tribunal’s reasoning runs counter to the principles in Appellant S395/2002.

And Justice Perry then made reference to what had been said by Justice Gageler in Minister for Immigration and Border Protection v SZSCA 254 CLR 317 in relation to the S395 decision, and particularly at the last section of SZSCA extracted by Justice Perry at paragraph 37. The principle in S395:

directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic.

KIEFEL CJ: Ms Webster, I take it this was not a claim for complementary protection.

MS WEBSTER: There was a claim for complementary protection before the delegate, but that was not expressly the subject of the appeal in the way in which it was being dealt with by Justice Perry and hence I have not put this as more then we would say seriously considered obiter of Justice Perry in relation to the matter. And, indeed, as I think I noted, the reference at paragraph 27 of Justice Perry’s decision where her Honour observed that the reasoning ‑ which is to say, if only the second appellant wife were to comply with the code as she had done for a period of time to avoid the harm ‑ that reasoning ran counter to S395, but made clear that only the Tribunal decision was the subject of the application for review. But the question ‑ ‑ ‑

KIEFEL CJ: A major issue that you would have to face is whether or not the decision in S395 in relation to a claim for a protection visa translates to a claim for complementary protection.

MS WEBSTER: Well, yes, and we have outlined in our written submission why we say that is so and would be so that the assessment of the real risk of significant harm should, looking at the terms of s 36(2)(aa), involve a consideration of whether the modified conduct was influenced by the threat of harm, why there would be a modification, and whether it is because of the threat of harm. Now, that is the reasoning that had been engaged in.

KIEFEL CJ: But one point of distinction, is it not, between the two, is that the protection visa provisions are concerned with a fear of harm on account of persecution, and looks to the person, whereas the complementary protection provisions are concerned with the fact of risk of harm, and the degree.

MS WEBSTER: And an assessment of the likelihood of harm if the person is returned.

KIEFEL CJ: Harm of a particular kind, yes.

MS WEBSTER: The harm of a particular kind, and that very particular kind of ‑ ‑ ‑

KIEFEL CJ: But it is the fact of it, rather than what a person fears, that is being assessed. What a person fears, and why they fear it, which is at the heart of the claim for a protection visa.

MS WEBSTER: Or both the complementary protection claim, and the refugee claim are aspects of the claim for protection visas.

KIEFEL CJ: Yes, I am sorry, the claim for refugee status in relation to a protection visa.

MS WEBSTER: Yes, well, they are both seeking to identify protection obligations, the Minister’s satisfaction that there are protection obligations, so the refugee ‑ ‑ ‑

KIEFEL CJ: But they are different obligations on different accounts, are they not? One is because a person fulfils the status of a refugee, on account of their fear of harm because of the persecution they might suffer because they are of a particular group or have a particular characteristic, but the complementary provisions, the complementary protection obligations, are concerned, really, with an obligation to protect against the reality and actuality of harm regardless of the person’s background or characteristics, but just the reality of the harm that might occur if they are returned. That is the essential difference, I think, that the first respondent raises against you.

MS WEBSTER: Both sections are ‑ ‑ ‑

GORDON J: Can I ask you this question. If you go to the first respondent’s submissions and deal with them in two categories, if you deal with what I will call the refugee claims, the Minister accepts, as I understand it, that 5J(3) codifies S395 to a certain extent by accepting its submissions that S395 still has a role to play, or may have a role to play in relation to the refugee aspect of that in determining whether someone is a refugee - set out in paragraph 23. So you can park that aspect of it.

When you come to 36(2)(aa), they, I think, set out in paragraph 32, an assessment of that provision and the way it works, especially in relation to this applicant, but explain, as I think the Minister properly concedes, that there are, on the language of 36(2)(aa), potential ways of looking at that provision. Some of that may require modification, some of it may not require modification - to pick up the Chief Justice’s point, depending upon what the significant harm or what the real risk is. In other words, it is looking to it. If paragraph 32 accurately explains the way 36(2)(aa) is going to work, what does S395 analysis give you in addition, if anything?

MS WEBSTER: If I might just refresh- as your Honour directed, particularly to paragraph 32. Paragraph 32 in the Minister’s submission is advancing the Minister’s contention that there are variable ways to approach it as to whether or not modification of behaviour is possible. We approach the matter from the basis that the way in which section 36(2)(aa) was introduced because of the absolute ‑ this is the language of the explanatory memorandum – and non‑derogable, in effect, obligations, the non‑refoulement obligations, this was the language of the explanatory memorandum and this was the genesis of the statutory provision we are concerned with.

The explanatory memorandum emphasised the absolute nature of the non‑refoulement obligations and fundamentally recognised the importance of a risk assessment. The explanatory memorandum has been included in the joint bundle. I do not ask at the moment for your Honours to go to that but if I might note the references which your Honours will have seen in our outline. It is Part E, volume 7 of the joint book and in particular at page 1761 as to the absolute nature of the obligation and 1769 in terms of the importance of a risk assessment and the importance of the risk assessment to be undertaken to answer the question whether there are complementary protection obligations owed to the person.

The test, as your Honours have taken me to it in terms of section 36(2)(aa), I do not repeat that, your Honours are very familiar with it but it is still a question directed at the particular non‑citizen whether there is a real risk that the non‑citizen in respect of whom a protection visa claim is being considered will suffer significant harm.

The questions advanced in paragraph 32 of the Minister’s submissions do not find expression in the language of the section in the way that it was introduced nor in any of the – that there should be an approach of this kind was found in the explanatory memorandum when there was an express statutory introduction of this concept. I mean, there was this express statutory introduction of section 36(2)(aa). It was clearly intended to introduce efficiency and accountability into the non‑refoulement obligations under multiple conventions. We have noted them in paragraph 33 of our written submissions.

The amendment that was made expressly dealing with the question of behaviour modification occurred – I mean, there is a chronological approach in issue here, that is to say that the introduction of section 36(2)(aa) occurred in 2000 – I withdraw that – the introduction of section 5J and its particular restriction on the meaning of “refugee” because of its carve‑outs, in effect, from when one would have a well‑founded fear of persecution, that occurred in 2011 and your Honours are familiar with the amending legislation, the fact that we have the legislation in the terms that it now appears.

Section 36(2)(aa) in the terms that one deals with it in this matter was inserted in 2014 and it had absolutely no carve‑out of any kind, reference to any question of reasonable modifications of behaviour in the way in which one sees them expressly in 5J(3) and our submission is that that is reflective of the legislature not consistent with the absolute and non‑derogable nature of the non‑refoulement obligations.

The legislature was not approaching this, notwithstanding that there had been S395 and then there had been the introduction in 2011 of the definition of “refugee” and the carve‑outs in 5J(3). The legislature was not approaching this with the question that modifications were to be considered. It would have been terribly easy for the legislation in introducing 36(2)(aa) at the same time multiple amendments were being made to section 36 to have made that clear in exactly the same way in which 5H and 5J(3) make it clear.

There was an introduction in 2014 of the definition of “non‑refoulement obligation” as part of that same collection of amending provisions and the introduction of a definition of “non‑refoulement obligation” is found in section 5. The only occasion on which it appears to be used in the Act is in terms in relation to section 197C which is not a section with which this appeal is directly concerned - page 316 of the joint book volume 1 is where one finds section 197C and the definition was added in section 5 and it identifies particular conventions.

The definition is found on page 52. The definition on page 52 of “non‑refoulement obligations”, to the extent it is of any assistance in the way in which the legislature was dealing with the conventions underlying section 36(2)(aa) expressly set out that the “non‑refoulement obligations” as defined includes, but is not limited to:

(a) non-refoulement obligations that may arise because Australia is a party to -

three separate conventions:

(i) the Refugees Convention; or

(ii) the Covenant; or

(iii) the Convention Against Torture -

but in addition, it is an inclusive definition:

(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

STEWARD J: Just so I can clarify, your submission is that (aa) was introduced in 2014 and the definitions in 5H and 5J were 2011? Is that what I heard you to say?

MS WEBSTER: Yes. I do not think I have managed to completely mischaracterise legislative history ‑ ‑ ‑

STEWARD J: Perhaps that could be checked.

MS WEBSTER: I will.

GORDON J: I thought 5J was inserted in 2014 as part of that package.

STEWARD J: The Legacy Act.

MS WEBSTER: Yes, I have managed to - as your Honour says.

STEWARD J: All right. Thank you.

MS WEBSTER: Having had one thing in my mind, they are the other way around, but 197C was introduced in 2014 and perhaps if I just step back and get the sections right, so that your Honours are not left correcting me on a legislative history point that I should not have reversed.

Yes, 2011 amendments for 36(2)(aa). Of course, I had it in front of me and managed to misstate it. And 2014 for 5H and 5J. But the essential submission in terms of the ability of the legislature, at a time it was dealing with these concepts remains, once I correct my chronology, and perhaps has more force so that in 2014, when that is properly understood, the earlier introduced provisions, 36(2)(aa) for complementary protection, existed and would have been clear to the legislature of course in one’s approach to statutory construction.

The amendments for 5H and 5J, and the associated amendments occur in 2014 and it is at that same time that the definition in 197C was introduced with its specific definition for an unrelated purpose of non‑refoulement obligations. But it is with respect to the particularly – three identified conventions but not restricted to those, it was left at a broader level in subparagraph (b) of cognate international treaty obligations, so broader than just three specified conventions.

We dealt with that in our reply submission and perhaps I do not need to labour that point. Your Honours, I recognise of course have the submissions - what we said briefly in reply and have just addressed in my response then, which is if the legislature had wished and intended to make a similar modification analogously with the restriction, then one would expect that it would have been done in clear terms and in language, and could well have been done at the same time inferring silence as an intended amendment, implicit amendment, to the complementary provisions which had been introduced at the earlier time would not be the approach that the Court would take to Parliament’s intention, an unstated parliamentary intention to affect the construction of 36(2)(aa) by the amendments in 5H and 5J and the concomitant refugee aspect of the matter - one would not conclude that that was the intention where the opportunity that had arisen in 2014 if at no other time was not taken to make a cognate amendment.

The constructional choice which would be approached by the Court would be influenced by the fact that, as I had said at an earlier point, all of the obligations that are being talked about now are an approach to protection obligations that the country owes and they are owed under conventions, and they are intended – they are a protective aspect clearly identified in both 36(2)(a) and 36(2)(aa). The terms in which it is said that one has protection obligations is seen in 36(2) and underlies our contention that there were two identifiable statutory tasks for the Authority.

Now, I have, I think, departed from the order in which my outline put it but not having drawn the ire of the Court am inclined to the view that I have now said that which I had intended and would otherwise repeat myself, but if I might have a moment before I formally so conclude, unless, of course, before I do I can assist your Honours further.

The final submission that I would make is not something that had not been canvassed in written submissions, but I had not addressed that this morning, and that is to point to a particular language that is used and appears in the judgment of the Federal Court. Now, we had relied on that language of the Federal Court as indicative of our contentions, supportive, in fact, of our contention that the Authority had not sufficiently and appropriately addressed its separate statutory task in respect of the complementary protections matter.

I have taken your Honours to the findings of the Authority, but the way in which Justice Reeves dealt with this and the decision in – on the appeal from Judge Street, and Justice Reeves’ decision, as I have mentioned earlier, appears in tab 8 in core appeal book 1, and the relevant passage is in paragraphs 9 and 10, pages 76 and 77 of Justice Reeves’ decision.

We rely on this in support of the contention that the Authority cannot be in the way of which we have complained in our submissions already – cannot be identified to have properly addressed the questions. Now, Justice Reeves said at paragraph 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 [39] of its decision –

and the suggestion that it is a sufficient discharge of an approach to its determination to perhaps unwittingly make a finding is, one might think, a surprising approach. Now, paragraph 39 of the Authority’s decision is one has received attention already in what I have said but Justice Reeves continued in paragraph 10 over on page 77 with the language:

The Authority then implicitly adopted that finding, among others, to conclude, with respect to the first appellant’s complementary protection claims –

and that is then, his Honour has referred to paragraphs 59, 60 and 61 of the Authority’s reasoning which is the substance and, indeed, in a real sense, all that one can find of reasoning with respect to the complementary protection claim. Implicitly adopting findings is not a way in which a statutory decision‑maker such as the Authority is addressing the question that the statutory task requires. The findings in the way in which we have said already we contend ought to have been addressed specifically to the statutory criteria require more than that a finding could be made perhaps unwittingly which is then implicitly adopted.

There ought to have been, in our submission, a – and I would be at risk of repeating things which I have said to continue much further but there ought to have been an express consideration of the statutory test and there ought to have been – and a consideration, in our submission, of whether the first appellant would be exposed to a real risk of significant harm in terms of section 36(2)(aa) as a result of the likely acts of local extremists.

That is the impunity of which I referred to earlier, because there was, in our submission, an inappropriate and perhaps a – because it was all addressed in the context of the refugee claims - overwhelming focus on the refugee question of what the first appellant would do, the changes that he would make to his behaviour in terms of section 5J(3) to avoid what was accepted to be a risk of significant harm in the findings one saw in 33 and 39 of the Authority’s decision.

So, our contention is that the Authority erred in its discharge, purported discharge, of the statutory task in relation to section 36(2)(aa) and that Justice Reeves in the Federal Court ought to have found that there was such a jurisdictional error. Unless there is an aspect as to which I could assist the Court, those are my submissions.

KIEFEL CJ: Thank you. This might be a convenient time for the Court to take its morning break.

AT 11.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.23 AM:

KIEFEL CJ: Yes, Ms Mitchelmore.

MS MITCHELMORE: If the Court pleases. Your Honours, I wanted to start with the facts of the case against the background of which the question of construction arises. I can keep this brief because my friend has been to some of this before. Can I take the Court to page 7 of the core appeal book, specifically paragraph 9, which is the summary of the claims that the first appellant made.

Your Honours will see at the number of bullet points that the Authority accepted – your Honours can refer to paragraph 13 – the claim that the first appellant operated a private alcohol-selling business through his car from February 2010 to July 2012 and also accepted, as my friend has taken your Honours to this morning in paragraph 17, that there was country information to deal with the fact that there were issues in relation to the selling of alcohol in Iraq.

However, looking at paragraph 9, the Authority rejected the following bullet points which related to events which were claimed to have occurred both before and also after the appellant left Iraq, after of course being where his family home was alleged to have been raided by JAM. The Authority found that that did not occur.

If I can take your Honours then to paragraph 35, having rejected the claims that the applicant made or the first appellant made, the Authority then came to the question of future employment and behavioural modification – that is page 12 of the core appeal book. That is, of course, as the Authority observed in paragraph 35, the question that is asked by section 5J(3) of the Act.

Your Honours will see at paragraph 36 that the Authority refers to what the first appellant had said on this subject at his TPV interview. So in the first couple of sentences:

when asked whether it was ever an option for him to stop selling alcohol once he found out that Shia militia was interested in him, he responded he had decided to quit because he knew that those people were after him and could find him.

In paragraph 36, what the Authority went on to consider was:

whether the applicant husband would in fact continue to sell alcohol if he were returned –

and observed that while he claimed it was:

not an option to stop selling alcohol, he has also stated that he has decided to quit selling alcohol.

So the Authority noted the tension in the first appellant’s claims. At paragraph 38, the Authority was not persuaded ‑ it is about a third of the way through the paragraph – that the first appellant would continue to sell alcohol on return. That finding was made following a consideration in paragraph 37 of the various skills that the first appellant had, his education, the fact that his wife was also – this is actually at the bottom of paragraph 38 – the fact that he was now married. His wife had an independent means of income.

EDELMAN J: Is it your submission that in light of the evidence of the applicant that he wanted to quit, combined with all the opportunities that were found, that the finding that he would not continue to sell alcohol upon return is effectively a finding that there is no real risk that he would continue to sell alcohol upon return.

MS MITCHELMORE: Your Honour, the finding as to risk really follows from the finding that he would not continue to sell alcohol.

EDELMAN J: It would not always though, would it? There may be some circumstances where a finding that on the balance of probabilities something - a pattern of behaviour would occur, yet it is still able to sit with a finding that although on the balance of probabilities the pattern of behaviour will continue there is a real risk that it might not.

MS MITCHELMORE: I accept that, your Honour. The issue here, of course, is when one is looking at the statutory test, one is looking at the real risk as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country. So, the focus is necessarily on the removal of the person and what they will do and whether or not they will be a target. Now, in circumstances where the Authority finds that on removal the first appellant here would not sell alcohol on return then, in my submission, it is not a necessary and foreseeable consequence that he would suffer ‑ there would be a real risk of him suffering significant harm by reason of the removal.

EDELMAN J: I can see how you say that in relation to the facts of this case ‑ ‑ ‑

MS MITCHELMORE: Yes.

EDELMAN J: ‑ ‑ ‑ but if there were a real risk that a person would engage in conduct that would expose them to a serious risk of harm or a risk of significant harm, then that conclusion is not necessarily inconsistent with saying that, on the balance of probabilities, the person would not engage in that conduct.

MS MITCHELMORE: No. Ultimately, your Honour, there will be questions of fact and degree, perhaps, in the analysis but, looking at the present case, certainly a finding that someone would not engage in a particular activity, in my submission, leads to the consequence which the Authority found that it is, as a reasonable and foreseeable consequence, one cannot see that there is a real risk of significant harm.

There might be other factual scenarios where the tension that your Honour is putting to me might well arise and there are, obviously, a range of characteristics that a person may have or events that they may have suffered before leaving a country which, on removal, are going to rear their heads again which would need to be considered. But looking at this particular case, in my submission, the finding that he would not continue to sell alcohol on return led to, as I will come to in ‑ ‑ ‑

EDELMAN J: The difference might become much more pertinent where the characteristic is not something like selling alcohol ‑ ‑ ‑

MS MITCHELMORE: Correct.

EDELMAN J: ‑ ‑ ‑ but it is a characteristic which might be described as immutable.

MS MITCHELMORE: That is right.

EDELMAN J: Even if the decision is one which might be characterised as one which, on the balance of probabilities, is a choice there might still be a real risk that that behaviour might be departed from.

MS MITCHELMORE: Standing here, your Honour, I cannot say that that cannot be the case. But, certainly, in circumstances where it is an immutable characteristic there is not really a choice. So, in my submission, there is a tension in that. Your Honours, I was at paragraph 39 and that particular finding and the finding was – I just note at the beginning of 39, having regard to all the circumstances of the case and the information before the Authority. So that was the finding that was made. The basis for that conclusion was the first appellant’s likely concern for the collective safety of himself, his wife and his child and the risks associated with selling alcohol which was, of course, consistent with the first appellant’s own expressed position.

In paragraphs 40 and 41, the Authority went on to consider the application of section 5J(3), I think, in particular, paragraph (b). But your Honours will see at the conclusion of paragraph 42, the Authority is expressing that conclusion in accordance with the language of section 5J(3). So, the conclusion is:

that he could take reasonable steps to modify his behaviour by ceasing to sell alcohol so as to avoid a real chance of persecution.

Over the page, page 16, when the Authority comes to consider the question of complementary protection, your Honours can see at 57 the criterion is stated and at 58 reference is given to the components of significant harm.

At 59, the first part of 59 refers to the finding that the Authority made about the first appellant in relation to section 5J(3). So, your Honours can see that statutory language again:

could take reasonable steps to modify his behaviour –

et cetera. The Authority, of course, in the next sentence, recognises that:

there is no equivalent provision to which complementary protection is subject –

and then recognises the relevant question in this context is a different one:

whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to Iraq, there is a real risk that he will suffer significant harm.

What the Authority then does is refer back to its finding that:

the applicant husband would not continue to sell alcohol upon return.

It followed, in 62, that on that basis the Authority found:

he does not face a real risk of harm –

And then, of course, goes on to consider other aspects of the first appellant’s claim for complementary protection which related to some more general claims, and dismissed those as well. Of course, the matter which the Court is particularly concerned with is the selling of alcohol.

In our submission, it was, of course, permissible for the Authority to rely on the findings that it had made earlier in considering the question under section 36(2)(aa), providing, of course, that the Authority applies the correct test to those findings in relation to the separate criterion. In our submission, it does not need to remake or repeat its earlier factual findings.

That proposition has received significant support in the Federal Court, if I can give your Honours some references: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at 56, which is a decision of Justice Robertson, and there is a Full Court decision, SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at paragraph 31. And there is also the decision of Justice Charlesworth in BCX15, which my friend took your Honours to earlier, and which is in the book of authorities.

So, the situation, in our submission, then relevantly for present purposes is that on the basis of its earlier finding about what the first appellant would do on removal, about how he would make a living, was consistent with his own evidence, and the Authority found, on that basis, that section 36(2)(aa) were not satisfied. Where the Authority, on my friend’s submission, is said to have gone wrong, is that, in reaching its conclusion on section 36(2)(aa), it did not consider why the first appellant had decided to stop selling alcohol, and in our submission, that inquiry is not mandated by section 36(2)(aa), nor is it consistent with its object or purpose.

When one looks at section 36(2)(aa) read with other provisions in section 36, and in particular subsections (2A) and (2B), it provides an additional basis for protection which engages Australia’s express and implied non‑refoulement obligations under other international instruments, specifically the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The particular non‑refoulement obligations that are concerned are those which Australia has, under Article 7 of the ICCPR, in respect of cruel or inhuman treatment or punishment, and degrading treatment or punishment, and under Article 7 of the ICCPR and Article 3 of the Convention Against Torture in respect of torture. Of course, although the general purpose of inserting section 36(2)(aa) was to align the protection visa process under the Act with Australia’s international non‑refoulement obligations, Parliament has done so in particular terms, and it is the terms of the statute that need to be considered.

So when one looks at the provision itself, section 36(2)(aa), one can see that the inquiry is framed by reference to the risk of specified harm of a non-citizen’s removal to the receiving country. The question for the Minister is whether, as a necessary and foreseeable consequence of that removal, there is a real risk that the non‑citizen will suffer significant harm. That is, in our submission, consistent with the obligations of the ICCPR and the Convention Against Torture, at which the provision is directed, being obligations of non‑refoulement.

“Significant harm” is of course defined in subsections (2A) and (2B), so it means that the decision‑maker is focused on the defined harms with which the subsection is concerned, and whether there is a real risk, as a necessary and foreseeable consequence of removal of the non‑citizen suffering that particular harm.

The decision‑maker in that inquiry has to look at the particular non‑citizen and the basis for the claimed significant harm and what the nature of that harm is on removal, and whether, in the assessment of the decision‑maker, there is a real risk of that significant harm being suffered as a necessary and foreseeable consequence of the non-citizen’s removal. There may be cases, perhaps many in which the criterion in (aa) may be satisfied because the basis of the risk of significant harm will be inherent or immutable in respect of the non‑citizen.

So, by way of example a non‑citizen may have committed an offence for which he or she will receive the death penalty if they return to the receiving country. Alternatively, a non‑citizen may suffer or be treated in a manner that satisfies degrading treatment or punishment because he or she has unsuccessfully made protection claims in another country. In those cases, it may be open to a decision‑maker to find that as a necessary and foreseeable consequence of the non‑citizen’s removal to the receiving country that there is a real risk that the person will suffer significant harm as defined. But there are also cases, and the present case is one of them, in our submission, where on the findings of the decision‑maker a non‑citizen is in a position to, and would, on their removal to the receiving country, behave in a manner that is different from when he or she was there previously.

Here, of course, the Authority found that although the first appellant used to sell alcohol in Iraq, he would no longer do so when removed. On the basis of what the Authority found, there was no real risk that the first appellant would suffer significant harm as defined in the Act as a necessary and foreseeable consequence of removal.

What the appellants are contending for is that the section required the Authority to look behind the difference and assess the reasons for it and, in our submission, apart from there being no express requirement to that effect, such a requirement would not be supported by the purpose of the criterion, which is to give statutory effect with some modification to international obligations of non‑refoulement where particular consequences will ensue.

The fact that future behaviour on the part of an applicant, as found by the decision‑maker, is responsive to a prospect of significant harm as defined does not of itself, in our submission, involve a manifestation of the harm at which the criterion in (aa) is directed, such that the underlying motivation is required to be considered.

If I can give your Honours some references to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, we say of course that the text of the criterion in subsection (2)(a) and the underlying international obligation to which it gives effect is fundamentally different. Looking at Appellant S395 in the reasons of Justices McHugh and Kirby at page 489, paragraph 40, what their Honours look at is the purpose of the convention – that is the Refugees Convention. Their Honours observe that:

The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution.

What their Honours observe at about halfway through the paragraph is that:

The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.

At the bottom of the page, paragraph 41, their Honours refer to:

The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide –

their Convention characteristics. It was consideration of the purpose and object that, in our submission, led their Honours to express the view at paragraph 43 on page 490 that:

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution –

I interpolate, on the grounds identified in the Convention:

if the person is returned to the country of nationality.

So in the context of section 36(2)(a) then, the approach that was impugned in Appellant S395 obscured that what was being protected were matters that were essential to the protected Convention nexuses – race, religion, nationality, membership of a particular social group, et cetera.

Justices Gummow and Hayne reasoned in a similar manner. If I can take the Court to page 500 of the report at paragraph 80, their Honours there observed that:

If an applicant holds political or religious beliefs that are not favoured . . . the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms . . . The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.

Their Honours then went on to apply those principles. If I can refer your Honours, without taking your Honours to it, to paragraph 88, which in my submission indicates how the Tribunal went wrong.

By contrast, in our submission, and as Justice Perram put it in Minister for Immigration v Anochie [2012] FCA 1440; (2012) 209 FCR 497 at paragraph 78, the provisions of the ICCPR and the Convention Against Torture, with which paragraph (aa) is concerned, are addressed to the question of whether a person can be sent back to a particular State. The paragraph is thus formulated by reference to consequences of a non‑citizen’s removal to that State. There is no requirement to consider a non‑citizen’s subjective beliefs about the harm, be that on grounds of one or more of their inherent and immutable beliefs or characteristics, and indeed it is difficult to see how an inquiry of that nature can be accommodated in the inquiry that is at the core of the provision that is section 36(2)(aa).

If one looks at the appellant’s written submissions at 52, the appellants submit that, had the question they say was not asked been asked, it would have been answered that the reason why the appellant would cease selling alcohol was because of the real risk that, as a consequence of being removed to Iraq, he or his family would suffer significant harm as a result of the actions of local extremists.

Now, that might be so, but the fact remains that if the appellant would not sell alcohol on his return, there is not a real risk of significant harm as a necessary and foreseeable consequence of his removal. What the Authority was focused on, and in our submission, correctly focused on, was what the appellant would do on removal, whether that was to avoid the risk of harm or otherwise and, in our submission, that is the correct focus for the purposes of section 36(2)(aa).

EDELMAN J: Well, strictly, it is there was a real risk what the appellant would do.

MS MITCHELMORE: Yes, I accept that, your Honour. It is not the case, in our submission, pursuant to the non‑refoulement obligations in the ICCPR and the CAT that Australia has a positive obligation to protect a particular means of earning a living in circumstances where, as the Authority found in this case, a non‑citizen has other means available, and would have recourse to those means rather than how the living was earned before they left the particular country. And there is some analogy in this respect, we have referred at the end of our oral outline, perhaps not a complete one, to the reasoning of this Court in CRI026 v Republic of Nauru [2018] HCA 19, it is reported in [2018] HCA 19; 92 ALJR 529, and it is in the authorities bundle at tab 15.

And if I can refer your Honours to paragraphs [43] through to [46]. The Court there, of course, was looking at the question of relocation and the role of relocation in complementary protection, but one of the arguments that was advanced by the appellant in that case was that one could not look at relocation because, in effect, even if he was removed, there would be an impact on his freedom of movement under Article 12 of the ICCPR, and one of the things that the Court observed at paragraphs [44] to [46] is that it is not necessary for Australia, as a signatory to the Convention, to lock in a
particular consequence in terms of the other articles in Nauru. The question is concerned with non‑refoulement and what the risk is of return. And if the person could relocate to another part of Nauru – I am sorry, another part of I think it was Pakistan, in that case, and not suffer the serious harm, then the question, for complementary protection purposes, was answered necessarily adversely to the appellant.

So, in our submission, your Honours, the decision of the Authority involved asking itself the right question and it was required to do no more than answer the question that it did and, further, in our submission, the Court was correct – the Federal Court was correct to conclude that the Authority had complied with the statutory task and had not entered or fell into any jurisdictional error of any kind. Unless there was anything further, your Honours, those are my submissions.

KIEFEL CJ: Thank you, Ms Mitchelmore. Ms Webster, do you have anything in reply?

MS WEBSTER: Can I have just one moment? I think I have but I cannot – your Honours, my friend took your Honours, as I had not done, but your Honours have seen it now, particularly to paragraph 40 in the decision in Appellant S395 and without belabouring the point may I emphasise what was said by Justices McHugh and Kirby in paragraph 41, and this is the section to which my friend took your Honours. This is page 24 in the joint bundle, page 489 in the report.

In terms of the purpose of the Convention ‑ and I accept, of course, that in S395 the Convention with which the Court was concerned was the Refugee Convention, but there is a great deal of similarity in the approach of the two sections, (2A) in respect of the refugee claims and (2)(aa) in respect of the complementary protection claim. The purpose of the Convention was to be seen at the top of paragraph 40 and at 41 at the foot of page 489 of the report, it was made clear and we would rely on this as well that the object of the signatories of the Convention was to protect the holding of beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them.

If I might just give the reference to what was then said on page 490 in S395 to the decision in - the United Kingdom Court of Appeal decision, Secretary of State for the Home Department v Ahmed. This appears on page 490 of the report. The introduction to it was that:

It would undermine the object of the Convention if the signatory countries –

so relevantly here Australia:

required them to modify their beliefs or opinions or to hide –

relevantly for our purposes:

particular social groups before those countries would give them protection -

The quote which appears in paragraph 41 and then in 42 deals in part with the question that was put to me earlier in terms of likely change in behaviour of the – there asylum seeker, here a claimant for a protection visa. Now, what is said, and upon reflection perhaps I will actually go that bit further orally now, it is - your Honours see this at about point 3 on the page:

It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities – if, in other words, it is established that he would in fact act unreasonably – he is not entitled to refugee status.

So in part it is perhaps picking up the point that your Honour Justice Edelman was raising with my friend in terms of behaviour that might be continued in, notwithstanding a conclusion as to a real risk of the conduct. One sees the introduction of 5H and 5J as a response to what is said there, and reasonable modifications are in fact now required under section 5H and 5J of behaviour. It is laid out clearly what is to be considered. But there is a statutory basis now to be found for considering whether there are reasonable modifications and behaviour that might be expected of an applicant for a protection visa.

There is, as I said in my initial address, no similar statutory carve‑out in respect of 36(2)(aa). But I would emphasise, notwithstanding that the similarities that are to be found in section 36(2) in terms of what one finds, the language has a number of aspects of similarity, and then there is the additional aspect expressly set out in section 36(2)(aa) for the complementary protection claim. What is required is the Minister initially, and obviously one deals with the Authority - by the time a matter reaches the Authority there must be a state of satisfaction reached. The language in (a) is the applicant for a visa is:

a non‑citizen in Australia in respect of whom the Minister is satisfied –

So there is a requirement to enter into a state of satisfaction as to the matters:

the Minister is satisfied Australia has protection obligations because the person is a refugee –

and one is then driven to the sections providing the definition of a refugee which must be read with the carve‑out for behaviour modification which will not be the well‑founded fear of persecution. But it is similar language that one sees at the commencement of 36(2)(aa):

a non‑citizen in Australia –

not being someone who is a refugee:

in respect of whom the Minister is satisfied –

So again a state of satisfaction is required to be reached by the Minister:

Australia has protection obligations –

and that language has been carried across again:

because –

but there is an additional test here:

the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the [removal] there is a real risk that the non‑citizen will suffer significant harm.

The additional statutory provision which is to be considered in section 36(2C) where here there is a carve‑out of a kind one does not find addressing our contention as to S395 and behavioural modification questions:

A non‑citizen is taken not to satisfy –

the (2)(aa) criteria, and I will not read them, but your Honours will see – this is at page 106 in the joint bundle at Part A, volume 1 - a series of matters such as a crime against peace.

Those express carve-outs from, the matters which would otherwise satisfy the criteria in 2(aa) are found expressly in section (2C). That is the only express carve-out in respect of (2)(aa) for complementary protection. The balance of the section under the heading “Protection obligations” in (3), (4), (5) and (5A) is dealing with protection obligations generally, so that is to say refugee and complementary protection.

The emphasis we make is that the state of satisfaction for the Minister - for the delegate for the Authority as the decision‑maker is to address that question of being satisfied. There are protection obligations because of being satisfied but as a necessary and foreseeable consequence of removal there is a real risk of suffering harm. The question is not, as it is and had been separately for the refugee question, are there reasonable modifications to the behaviour that could be made and, if so, 5(J) requires that those things are taken into account, and as I said in‑chief, that, in our submission, is the approach of the Authority to fact finding, and there was not that focus on the separate statutory tasks that 36(2)(aa) requires.

The language that the Authority used did not address consistently the language of real risks that the non-citizen would suffer significant harm, because one sees more than once, in fact we counted five times, in the Authority decision‑making process the use of language which was not the correct test but real chance.

The question which was not arising in this case was to relocation in a different place and the last reference I would just make in terms of those sections and parts of section 36 which dealt with the complementary protection regime but it did not arise here but it is in a carve‑out in the legislation one sees is 36(2B) where there is a satisfaction that it would be reasonable for the non‑citizen to relocate. So, I drew attention to the carve‑out in (2C) but, consistently with the Nauruan decision my friend referred to, the relocation principle has been found and expressly stated in section (2B).

One does not see and there is not to be found in the legislation, in our submission, as it is construed in context, such a carve‑out which permits behaviour modification that is relevant directly for 5J purposes in the refugee assessment to be considered in relation to the complementary protection provisions in (2)(aa). Those were my submissions in reply, if the Court pleases.

KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 9 February in Canberra.

AT 12.03 PM THE MATTER WAS ADJOURNED