Anz16 v Minister for Immigration and Border Protection
[2017] FCA 1293
•8 November 2017
FEDERAL COURT OF AUSTRALIA
ANZ16 v Minister for Immigration and Border Protection [2017] FCA 1293
Appeal from: ANZ16 v Minister for Immigration & Anor [2016] FCCA 3015 File number: SAD 342 of 2016 Judge: BESANKO J Date of judgment: 8 November 2017 Catchwords: MIGRATION – consideration of an appeal from an order of the Federal Circuit Court dismissing the appellant’s application for judicial review – where the Administrative Appeals Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a Protection visa – where the Tribunal was aware that the alleged persecution must be for a Convention reason – where the Tribunal relied on country information and reports in finding that there was a law of general application relating to dress codes – where the Tribunal relied on country information and the absence of evidence of a real chance of persecution for a person in the appellant’s position. Legislation: Migration Act 1958 (Cth) s 91R Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Date of hearing: 22 August 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant: Mr S Ower SC Solicitor for the Appellant: MSM Legal Counsel for the First Respondent: Mr K Tredrea Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS
SAD 342 of 2016 BETWEEN: ANZ16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
8 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION
This is an appeal from an order made by the Federal Circuit Court of Australia. The appellant applied for a Protection visa on 15 August 2013. A delegate of the Minister refused his application on 5 December 2014. The appellant applied for a review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 11 February 2016, the Tribunal decided to affirm the decision not to grant the appellant a Protection visa. The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 5 December 2016, the Federal Circuit Court dismissed the appellant’s application and that is the order which is the subject of the appeal (ANZ16 v Minister for Immigration & Anor [2016] FCCA 3015).
There are two grounds of appeal in the Amended Notice of Appeal. The first respondent did not object to an order that the appellant have leave to file the Amended Notice of Appeal and I made an order to that effect.
THE TRIBUNAL’S REASONS
The Tribunal found that the appellant is a national of Iran. He is a single man and his parents, a brother and a sister live in Iran. He left Iran in April 2013 on a genuine passport in his own name and travelled to Australia.
The appellant was raised as a Muslim and the Tribunal noted that, while he said he feared harassment by religious authorities in Iran, he made no claims of persecution based squarely on the Convention reason of religious belief or non-belief. The Tribunal also noted that the appellant made no claims of persecution based on sur place activities.
The Tribunal set out the appellant’s work history and activities in Iran from 2009 to his departure in April 2013. He worked first as a motorcycle courier and then in two restaurants in an unspecified capacity and finally as a manager in a friend’s coffee and juice bar. It is not necessary for me to set out those details. He gave evidence of contact with the Amaken, which the Tribunal described as a special police unit responsible for morality policing of businesses in Iran complementing and overlapping with “the Basij’s morality policing of the general public”. The appellant gave evidence that in 2013 the Amaken questioned him about his appearance, hairstyle, clothing style and the cologne he was wearing. In 2009, he had been warned by the police about a tattoo he had.
The Tribunal then identified country information about the activities of the Amaken. I will refer to that country information later in these reasons.
The Tribunal then considered whether there was a real chance the appellant would be persecuted by the Amaken or other authorities acting at the behest of the restaurant owners or operators where he had worked. The appellant considered that those persons were responsible for the visit by the Amaken in 2013. The Tribunal rejected the appellant’s claim put forward on this basis and that aspect of the Tribunal’s decision was not and is not challenged. Precisely the same can be said of the Tribunal’s consideration of whether there was a real chance that the appellant would be persecuted by authorities because of his actual or imputed political opinion based on his apparent one-time involvement in protests in 2009.
The focus of the appellant’s application for judicial review of the Tribunal’s decision and the appeal to this Court was on the two other bases advanced by the appellant in support of his claim for a Protection visa which were considered and rejected by the Tribunal. They were whether there is a real chance that the appellant would be persecuted by authorities because of his manner of dress and whether there is a real chance that the appellant would face persecution because he is a failed asylum seeker/voluntary or involuntary returnee to Iran.
As to the first matter, after setting out certain evidence of the appellant which it appeared to accept, the Tribunal said that the issue was whether the appellant faces a well-founded fear of persecution by reason of his tattoos or style of dress or hairstyle “(whatever nexus to the convention may be ascribed)”. The Tribunal said (at [85]):
For the Tribunal however, the question of whether the applicant faces a well-founded fear of persecution by reason of his tattoos or style of dress or hairstyle (whatever nexus to the convention may be ascribed) is not a question of the applicant being required to behave in any particular way, other than to be dressed in accordance with the rules which apply to all people within the territory of Iran. In this regard, the Tribunal considers that if the applicant were to obey Islamic dress codes (hijab) which apply universally in Iran, his tattoos are not visible and there is no real chance he would face harm in connection with having them. Similarly, he would be attired in a manner consistent with those dress codes. There is no evidence before me to indicate that they are enforced selectively against particular groups, or in a discriminatory manner. Such rules apply to everyone in Iran. I find that in his circumstances, complying with these rules means that his fear of harm in connection with attire and displaying tattoos in public is not well-founded.
The Tribunal said “for completeness” it did not consider that being subject to “those particular laws of general application regarding hijab” per se was either persecution or persecution for a Convention reason. The Tribunal then referred to s 91R(1)(b) of the Migration Act 1958 (Cth) which at the time provided that persecution must involve serious harm. It said that it did not consider that being subject to public morality laws and mandatory hijab are of sufficient gravity to constitute serious harm. The Tribunal said that enforcement of a law of general application can amount to persecution if it is implemented or enforced in a discriminatory manner, “but in the case of enforcement of hijab and public morality laws in Iran, I do not consider that being subject to those laws constitutes serious harm”.
The Tribunal went on to say that it had considered the issue in the context of the punishment inflicted on people who break public morality laws or are identified in public with bad hijab. It then considered and set out certain country information as to the imposition of public morality laws and hijab codes. The Tribunal said that the punishment for the offences described in the country information could range from fines through to “more severe punishment”, but it had found that the law was of general application and there was no evidence of discriminatory enforcement.
The Tribunal rejected the appellant’s claim based on his manner of dress and tattoo.
As to the second matter, the Tribunal found that the appellant obtained a genuine passport and departed from Iran in April 2013 by the usual legal channels. The Tribunal then referred to various items of country information as follows:
(1)a Department of Foreign Affairs and Trade (DFAT) Report published on 29 November 2013;
(2)RRT research papers;
(3)earlier DFAT Reports;
(4)a Report prepared by the Swiss Refugee Council (SRC) which the Tribunal described as comprehensive and extensively “footnoted”;
(5)the United Kingdom Advisory Panel on Country Information evaluation of the August 2008 CO1 Report on Iran; and
(6)a September 2013 United Kingdom Home Office “Country of Origin Information Report”.
The Tribunal also referred to a decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in 2011.
The Tribunal found that the appellant destroyed his genuine Iranian passport whilst en route to Australia and that he will either have to approach the Iranian authorities for a travel document or be deported against his will.
The Tribunal then referred to country information which contained reports of failed asylum seekers experiencing serious harm on arrival in Iran, including detention, interrogation and physical mistreatment.
The Tribunal found that the Iranian authorities would have a reasonable suspicion that the appellant may have sought asylum in Australia and that he may be asked questions, both in Australia at the time his departure is being organised (voluntary or involuntary) and upon his return to Iran. The Tribunal found that a returned asylum seeker is not at risk of harm upon return unless the person had an anti-government profile before they left Iran or engaged in perceived or actual anti-government or anti-Islamic activities while outside Iran.
The Tribunal expressed its conclusions as follows (at [111]-[112]):
The Tribunal considers, based on the country information set out below, that unless a person has an anti-government profile before they leave Iran or they engage in perceived or actual anti-government or anti-Islamic activities while abroad, a returned asylum seeker is not at risk of harm on return.
The Tribunal finds that on return to Iran, after some questioning, the applicant will be able to resume his former life without any harassment or problems from the authorities, his close or extended family, friends, neighbours, or people at the market. He can continue not to participate in organised religious activities as millions or [sic] Iranians. He can go back to doing the sort of work he did before. He is not of any adverse interest to anybody in Iran.
The Tribunal rejected the appellant’s claim insofar as it was based on his status as a failed asylum seeker/voluntary or involuntary returnee to Iran.
THE REASONS OF THE FEDERAL CIRCUIT COURT
There were five grounds in the appellant’s application for judicial review. Three were subsequently abandoned and a new ground added.
I will address the reasons of the Federal Circuit Court only insofar as they relate to the two grounds raised on the appeal.
As to the issue of the appellant’s manner of dress and his tattoo, the appellant submitted to the Federal Circuit Court that there were four bases for inferring that “the Tribunal misunderstood the proper question or, in some other manner, relied upon the irrelevant material in respect of it, and thereby committed jurisdictional error”.
The Federal Circuit Court identified the four bases as follows.
First, the appellant submitted that the Tribunal considered the matter in an abstract manner concluding that unstated laws in respect of the issue “apply universally in Iran” and “are not enforced selectively against particular groups or in a discriminatory manner.” (See [85] in the Tribunal’s reasons set out above at [9].) The appellant submitted that the Tribunal expressed this conclusion before making a finding about the existence of a law of general application or considering any country information about the existence of such a law.
Secondly, the appellant submitted that the Tribunal made inconsistent findings about whether such a law could lead to severe punishment for breach. The Tribunal said that it did not consider being subject to public morality laws and mandatory hijab to be of sufficient gravity to constitute serious harm (at [87]) and yet then said (so the appellant submitted) that punishment for “offences” against such laws can range from fines through to “more severe punishment” (at [89]).
Thirdly, the appellant submitted that the Tribunal did not analyse the issue of a connection between the claimed persecution and a Convention ground. It made it clear that it was not doing that when it said on two occasions, “(whatever nexus to the convention may be ascribed)” (at [84]-[85]). The Tribunal erred in not carrying out such an analysis.
Fourthly, the appellant submitted that the Tribunal’s findings as a whole were unclear.
The appellant submitted that considered cumulatively, these matters should lead to the conclusion that the Tribunal “had not really understood the manner in which it was supposed to consider the issue”.
The primary judge rejected this general submission. His Honour said that the Tribunal understood the issues confronting it. He said that the Tribunal described “the issue in the case as whether Australia has protection obligations in respect of the applicant” and that that was a correct description of the issue. He said that the Tribunal’s reference to “whatever nexus as to the Convention may be ascribed” was “slightly unusual”, but it was understandable in the case. He said (at [46]):
That is because the Tribunal found that the hijab requirement is a law of universal application in Iran and is not applied in a discriminatory manner. It is well established that being required to comply with a law of general application is not persecution for a Convention reason unless it involves serious harm. The Tribunal found that being required to comply with the hijab was not of sufficient gravity to constitute serious harm. In this latter regard, I think the finding was open to the Tribunal to make.
The primary judge then considered what he described as the real question which was whether there was evidence that supported the findings. He formed the opinion that there was such evidence and he referred to the following matters. First, the primary judge said that the appellant was “somewhat disingenuous” because the whole tenor of the appellant’s evidence was that he faced difficulties with the Amaken precisely because there were requirements relating to dress and appearance and he referred to certain findings of the delegate. Secondly, the primary judge said that the Tribunal did refer to country information when it referred to the following passage from the United States Department of State 2010 Human Rights Report: Iran p 27:
During the year vigilantes continued to attack young persons considered “un-Islamic” in their dress or activities, invade private homes, abuse unmarried couples, and disrupt concerts. In May according to press reports, authorities launched an intensified campaign to enforce the mandatory hijab and issued a list of acceptable men’s hairstyles. According to press reports, morality police have stopped or detained more than two million individuals since 2007 for inappropriate hairstyles (usually related to the length of men’s hair or beards) or bad hijab.
(at [87]).
Thirdly, the primary judge said the following (at [50]):
Leaving aside the fact that the imposition of strict hijab requirements in Iran is sufficiently notorious, almost as to the attract the characteristics of something that the court could take judicial notice of, it is reasonable also in the circumstances to suppose that the Tribunal member might be expected to have detailed knowledge from their own experience of the state of the law in Iran in any event.
Finally, the primary judge said that although formal references to the mandatory hijab were “fleeting”, they are contained in the materials.
The primary judge concluded that a finding that there was a law of mandatory hijab was a finding open to the Tribunal.
The primary judge said that the Tribunal did not fall into error in its reference to severe punishment. If there was an error, it was a mistake of fact and an error within jurisdiction.
The primary judge concluded this section of his reasons with the following observations (at [53]):
The reality is that the Tribunal well understood what its task was, namely, to see if the applicant was likely to face persecution for a Convention reason. While perhaps some of the reasoning is not entirely well expressed (something I am conscious could be said of these reasons for judgment also given the rather scattergun way in which the submissions have been made), I do not think that the Tribunal fell into jurisdictional error in this regard.
As to the issue of the appellant’s status as a returned asylum seeker, the primary judge noted that the finding of the Tribunal which was attacked was that contained in paragraph 111 of its reasons which is set out above (at [18]). The primary judge reviewed the country information and concluded that the Tribunal’s finding was open to it.
THE APPEAL
The grounds of appeal are as follows:
1.The Federal Circuit Court of Australia erred in:
1.1 finding that the Second Respondent had, in fact, made requisite findings as to the issue of whether the appellant’s manner of dress or his tattoo gave rise to a well-founded fear of persecution for a Convention reasons (at [44]-[46]), when, in fact, the Second Respondent did not make such findings;
1.2 finding that there was “fleeting” material before the Second Respondent to support such findings (at [51]), when, in fact, there was no such material; and
1.3 holding that the Second Respondent “might be expected to have detailed knowledge from their own experience of the state of the law in Iran in any event” (at [50]) in circumstances where the Second Respondent did not state in its reasons that it was relying on such knowledge or give the appellant notice of the fact that it was relying [on] such knowledge.
and ought to have held that the Second Respondent committed jurisdictional error in relation to the issue.
2.The Federal Circuit Court of Australia erred in finding that there was “material before [the Second Respondent] which justified” (at [65]) the Second Respondent’s finding that there was not a real chance of a returned asylum‑seeker being persecuted in Iran “unless a person has an anti-government profile before they leave Iran or they engage in anti-government Islamic activities while abroad” (at [111] of the Second Respondent’s reasons), when it ought to have found the Second Respondent’s finding was not open on the evidence and its decision was affected by jurisdictional error.
Ground 1
With one relatively small difference, the appellant put the same arguments to this Court as he put to the Federal Circuit Court. The two main arguments were first, that the Tribunal, in considering the appellant’s claim for refugee status based on his clothing and tattoo, had not applied the correct test and secondly, the Tribunal had made a finding that there was a law of general application when there was no evidence of such a law. The second argument was to the effect that jurisdictional error was made out where there was no evidence to support a finding.
As to the first argument that the Tribunal did not apply the correct test in considering whether there was a law of general application relating to attire which was not enforced in a discriminatory fashion, the appellant relied on three of the four matters he put to the Federal Circuit Court. They are summarised above (at [23]-[25]). As to the fourth matter put to the Federal Circuit Court (i.e., a failure to make clear findings), that was reformulated before this Court as a failure by the Tribunal to examine which persons or entities took steps to enforce the mandatory hijab.
There is no substance in the first matter. The Tribunal could have identified the issue first. It could have then identified the country information and set out its finding in light of the country information. It did not proceed in that way. It set out its finding first. That is not an error or suggestive of error. As to the second matter, the Tribunal’s reasoning as to whether, in the context of the appellant’s claim, persecution involved serious harm is, with respect, not entirely clear. It is not entirely clear at certain points in its reasons whether the Tribunal is saying the punishment for contravening the laws relating to mandatory hijab did not involve serious harm, or whether the Tribunal is saying that, whatever the punishment, having to comply with laws of general application cannot involve serious harm. I am inclined to think that the Tribunal was saying the latter. In any event, the lack of clarity with respect to this point did not, in my view, lead the Tribunal into error as I will explain in relation to the third matter. As to the third matter, it is clear that the Tribunal was aware of the general principles and was aware that the alleged persecution must be for one of the Convention reasons of race, religion, nationality, membership of a particular social group or political opinion. It characterised one of the appellant’s claims as based on a claim of persecution by reason of actual or imputed political opinion and, as I have said, it noted that the appellant did not squarely raise a claim based on persecution for religious reasons. The Tribunal’s approach may have been unusual, as the primary judge said, but, in the event, I do not think that it led the Tribunal into error. If the Tribunal was correct that there was a law of general application which was enforced in a non-discriminatory fashion (there being no suggestion of the punishment for contravention being so disproportionate as might be relevant), then the claimed persecution does not satisfy the definition. The Tribunal understood this test and purported to apply it and whether there was evidence to support its findings is the second argument. There is no substance in the fourth matter. There is no reason to think that the Tribunal did not understand that an aspect of a law of general application is enforcement by State authorities. It referred to the Basij and at some length to the Amaken and its role.
I reject the appellant’s first argument.
The appellant’s second argument is that there was no evidence upon which the Tribunal could find that there was a law of general application relating to dress codes which was not enforced in a discriminatory fashion. The Tribunal’s discussion of this issue proceeded on the basis that there were Islamic dress codes which it described or identified as the hijab and the Tribunal said they applied universally in Iran (at [85]-[86]). It also referred to “public morality laws and mandatory hijab” (at [86]) and being “identified in public with bad hijab” (at [87]) and “laws relating to hijab” (at [89]). The Tribunal referred to two items of country information. The first was a United States Department of State 2010 Human Rights Report. After referring to vigilantes attacking those considered “un-Islamic” in their dress or activities, the report said:
In May according to press reports, authorities launched an intensified campaign to enforce the mandatory hijab and issued a list of acceptable men’s hairstyles. According to press reports, morality police have stopped or detained more than two million individuals since 2007 for inappropriate hairstyles (usually related to the length of men’s hair or beards) or bad hijab.
Although the law is not named and its provisions are not identified, one can infer from this report that there is a mandatory law enforced by the authorities relating to clothing and hairstyles and that it is enforced by the authorities against many citizens.
The second item of country information was an article in the Daily Beast (Newsweek) which was said to have been accessed on 19 July 2012. The subject of the article was a recent crackdown on the enforcement of dress codes on the population. The article refers to the morality police – since mid-June 2011 or 2012, 70,000 sent out in the streets of Tehran alone – enforcing morality laws, mainly relating to the appearance of women by spiritual warnings or heavy fines. The report said:
For ordinary Iranians, the evidence of the crackdown is in plain sight. Checkpoints run by the morality police have mushroomed all over Tehran and, residents say, it’s not uncommon to see women getting stuffed into one of their ubiquitous vans. Of course, there are cases where the cops seem to have taken things too far. One video posted on YouTube earlier this week allegedly shows policemen in the town of Hamedan chasing down a young woman in tight jeans and man-handling her into a cop car.
One can infer from this report that there are morality laws which are universally enforced and that they relate to (at least) clothing and appearance.
In addition to this country information, the Tribunal said elsewhere in its reasons that the Amaken, which, as I have said, is the special police unit responsible for morality policing of businesses in Iran complementing and overlapping with the Basij’s morality policing of the general public, questioned the appellant in early 2013 about his appearance, hairstyle, clothing style and the cologne he was wearing. Furthermore, albeit in another context, the Tribunal found that the Amaken had the power and authority to arrest the appellant, charge him and bring him before the courts (at [77]) and based on country information found that the Amaken inspected over 730 hair salons and barbers in Tehran in an attempt to enforce Islamic dress code (at [60]). Furthermore, again by reference to country information, albeit in relation to women, the Tribunal referred to the role of the Amaken in dealing with women with “bad hijab (Islamic covering)”.
I am of the opinion that considering these matters cumulatively, there was evidence to support the Tribunal’s finding. I should add for completeness that I would not infer (as the primary judge appears to have done) that the Tribunal relied on its general knowledge. It did not say that it did that and whether it could do it without identifying the information and giving notice of it to the appellant is open to question.
In my opinion, the Federal Circuit Court did not err in rejecting the appellant’s challenge to this aspect of the Tribunal’s reasons.
Ground 2
The appellant does not challenge the finding that a person who has an anti-government profile before they leave Iran or a person who engages in perceived or actual anti-government or anti-Islamic activities while abroad is at risk of harm on return to Iran. His argument is that the evidence did not support a finding that those were the only circumstances in which a failed asylum seeker/voluntary or involuntary returnee would face a risk of harm on return. As I understood it, the appellant’s argument is that there was no evidence as to the risk of harm faced by a failed asylum seeker/voluntary or involuntary returnee who did not fall into one of the categories. The appellant’s submission was that the Tribunal was not entitled to find that such a person would not be subject to a real chance of persecution upon return to Iran.
It seems to me that the Tribunal relied on the absence of evidence of a real chance of persecution for a person in the appellant’s position and country information suggesting that there was not a real chance of persecution.
Plainly, the Tribunal was entitled to rely on country information to make its finding. It is a matter for the Tribunal as to the weight it places on such information as part of its fact-finding function and the question of the accuracy of the information is a matter for the Tribunal and not for the Court. The Court does not have power to make its own assessment of the truth of “country information” because that would be to engage in a merits review (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).
In terms of the Tribunal’s reliance on the absence of evidence, it is important to note that the Tribunal did not decide the issue simply by reference to an onus to produce evidence. The fact is that there was a good deal of country information before the Tribunal and the absence of evidence was really the absence of anything to suggest that a person in the position of the appellant would face a real chance of persecution on return to Iran.
Furthermore, there was country information which supported the Tribunal’s finding. That included the most recent DFAT advice, the SRC report and the Asylum and Immigration Tribunal and Upper Tribunal (Immigration and Asylum Chamber).
In my opinion, the Federal Circuit Court did not err in rejecting the appellant’s challenge to this aspect of the Tribunal’s reasons.
CONCLUSION
I reject both grounds of appeal and the appeal must be dismissed. I will hear the parties as to the costs of the appeal.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 8 November 2017
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