Azw15 v Minister for Immigration

[2018] FCCA 705

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZW15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 705

Catchwords:
MIGRATION – Whether International Treaties Obligations Assessment (“ITOA”) afforded the First and Second Applicants procedural fairness – whether Second Respondent (“the Assessor”) failed to consider arguments and claims made by the First and Second Applicants – held that the Assessor misconceived and, therefore, did not consider the First Applicant’s claim amounting to jurisdictional error – held the Assessor failed to consider the Second Applicant’s claim, however, no impractical injustice and, therefore, no jurisdictional error – declaration made that ITOA was not made in accordance with law – order made for First Respondent to pay Applicants’ costs in a fixed amount.

Legislation:

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 334 ALR 653
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

First Applicant: AZW15

Second Applicant: AZX15

Third Applicant: AZY15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: PAUL JOHNSON, DELEGATE OF THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: MLG 1318 of 2015

Judgment of: Judge Jones

Hearing date: 17 October 2017

Date of Last Submission: 17 October 2017

Delivered at: Melbourne

Delivered on: 29 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Visatec Legal

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Clayton Utz

DECLARATION

1. The International Treaties Obligations Assessment dated 6 May 2015 was not made in accordance with law.

ORDER

1. The First Respondent pay the Applicants’ costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1318 of 2015

AZW15

First Applicant

AZX15

Second Applicant

AZY15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

PAUL JOHNSON, DELEGATE OF THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This decision concerns an application for judicial review of an International Treaties Obligations Assessment (“ITOA”) by the Second Respondent (“the Assessor”), a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), dated 6 May 2015. The ITOA was undertaken for the purpose of assessing whether Australia has non-refoulement obligations to the Applicants under various international treaties.[1] The Assessor concluded that Australia does not have non-refoulement obligations to the Applicants. The Assessor’s decision is at court book (“CB”) 436-467.

   [1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (“Refugees Convention”); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”).

2. The material before the Court is the Applicants’ amended application for judicial review filed on 3 February 2017, the affidavit of AZW15 filed on 11 June 2015, the First Respondent’s response filed on

   
   

   19 June 2015, the Applicants’ outline of submissions filed on

   
   

   3 February 2017, the First Respondent’s outline of submissions filed on 28 September 2017, a court book and a supplementary court book (“SCB”).

3. The First Applicant is the husband of the Second Applicant and the Third Applicant is their son. The Applicants claim that, prior to arriving in Australia, they had lived in Iran as stateless persons of Faili Kurdish ethnicity and Shi’a Muslim faith. The Applicants arrived in Australia as unauthorised maritime arrivals on 18 June 2010 and were taken to Christmas Island.

4. The procedural history for these Applicants is lengthy.  In the past, the Applicants have been the subject of a Refugee Status Assessment (“RSA”), an Independent Merits Review (“IMR”), a Post-Review Protections Claims Assessment (“PRPCA”) and the ITOA presently under review.  The Applicants also unsuccessfully sought judicial review of the IMR (CB 226-236).[2]

   [2] A full migration history of events is set out in the ITOA at CB 445-446.

5. After the Applicants’ details were published online by the Department of Immigration and Border Protection (“the Department”)

   
   

   (CB 237-238) (“the data breach”), the Applicants were notified that an ITOA would be conducted in relation to both the data breach and the Applicants’ claims for protection by Australia (CB 242-244). The ITOA was commenced on 8 September 2014 (CB 242-244). 

6. At the hearing of this application, Counsel for the Applicants informed the Court that the Applicants no longer pursued Ground One of the amended grounds of judicial review. This left one ground pursued on behalf of the First Applicant and a second ground pursued on behalf of the Second Applicant. Both grounds are similar in that they assert that the Assessor, in reaching his findings, failed to consider an argument or claim made by the First and Second Applicants respectively. The Applicants argue that because the ITOA failed to constructively consider the claims that were actually advanced by each of the First and Second Applicants, the ITOA failed to afford the Applicants procedural fairness, with the consequence that the ITOA was affected by jurisdictional error.

7. The final order sought by the Applicants is a declaration that the ITOA dated 6 May 2015 was not made in accordance with law.

Relevant Principles

1. There is no dispute as to the relevant principles in this case where the First and Second Applicants rely on clearly articulated arguments. These are that where the Tribunal fails to make a finding on “…a substantial, clearly articulated argument relying upon established facts…” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”) at [24] (per Gummow and Callinan JJ, Hayne J agreeing at [95])), that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (Dranichnikov at [24]-[25]; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) at [55]).

2. In NABE, the Full Court of the Federal Court of Australia stated at [63]:

   63         It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.  It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]).  But as the Full Court said in WAEE (at [45]):

   ‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision.  This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’

   …

3. Furthermore, procedural fairness is required in the ITOA process. In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 334 ALR 653 (“SZSSJ”), a full bench of the High Court of Australia stated at [75]:

   75         …it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation.  The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual.  The presumption operates unless clearly displaced by the particular statutory scheme.

4. Regarding the determination by a court as to whether procedural fairness has been afforded, the full bench in SZSSJ relevantly stated at [82]:

   82         Second, compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power.  The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”. 

   (footnote omitted)

Judicial Review

Ground Two

1. Ground Two in the amended application for judicial review, pursued by the First Applicant, is as follows:

   2.  The Second Respondent did not consider an argument made by the First Applicant, being that he would not remain quiet about his secular view if returned to Iran.

2. The First Applicant’s argument as identified by the Assessor is set out in Part A of the ITOA as follows:

   a)under the heading “5. Protection Claims/Information to be Assessed in this ITOA” (CB 447-448):

   i)“That the [First Applicant] had lost his religious belief in Shiite Islam and has embraced a humanist secular mindset since living in Australia” (CB 447);

   ii)“The [First Applicant] does not practice religion anymore” (CB 447);

   iii)“That the [Applicants] will suffer torture or cruel or inhuman treatment or punishment or degrading treatment if returned to Iran on account of the [First Applicant’s] humanist and secular view of the world that he developed since living in Australia” (CB 448);

   b)under the heading “9. Procedural Fairness” (CB 450-454):

   i)“The [First Applicant’s] claim he had lost faith in Shiite Islam was a new claim” (CB 450);

   c)

   under the heading “10. Findings of Fact (Credibility)”

   
   

   (CB 454-461):

   i)“The [First Applicant] has adopted a humanist secular mindset in Australia

   At his ITOA interview the [First Applicant] asserted that he had lost his religious belief in Shiite Islam and has embraced a humanist secular mindset since living in Australia. The [First Applicant] said that he could not be quiet about his lack of religious belief if he went back to Iran” (CB 459).

   (emphasis in original)

3. It is this latter identification of the First Applicant’s claim, that is [13](c)(i) above, which Counsel for the Applicants describes as the First Applicant’s argument at the ITOA.

4. The Assessor follows this identification of the First Applicant’s claim with the following statement (CB 459):

   Based on information from the UK Home Office, the Iranian regime favours Shiites under the Iranian constitution. The regime is principally concerned with public expression of dissent for political or religious reasons. This would suggest the Iranian regime is unconcerned about religious non observance by Shiites, as long as it is private and not a public expression of dissent. I note that the [First Applicant’s] spouse was wearing a veil during her ITOA interview. The [First Applicant] has not previously expressed public dissent in Iran against the regime for political or religious reasons. On this basis, I do not accept it is plausible that the previous or likely future conduct of the [First Applicant] or the [First Applicant’s] spouse would draw the adverse attention of Iranian authorities to themselves or their family members.

   (footnote omitted)

5. In Part B of the ITOA under the heading “4. Is the Fear Well-Founded?” (CB 462-464), the Assessor made the following finding which the First Applicant submits reveals that the Assessor failed to understand or misunderstood the First Applicant’s actual argument

   
   

   (CB 462):

   I do not accept that the [First Applicant] would face a real chance of serious harm in Iran for having lost his religious belief in Shiite Islam and having embraced a humanist secular mindset since living in Australia. The [First Applicant] has not publicly expressed dissent previously against the Iranian regime. The [First Applicant] has not publicly dissented with Shiite Islam or Islam in general when he was living in Iran, despite having had the opportunity to do so. I find that his claim he could not ‘stay quiet’ about his loss of faith is exaggerated, and is not consistent with the way he has previously behaved in Iran. As set out in my findings of fact, the Iranian regime tolerates private and personal loss of faith or failure to practice or uphold belief in Shiite Islam, provided this is not publicly expressed.

6. Counsel for the Applicants submits that the First Applicant’s actual claim was that after leaving Iran and arriving in Australia he adopted a secular humanist view and that on return to Iran he would engage in public protest or dissent about this view. Counsel for the Applicants submits that the reliance by the Assessor, in rejecting the First Applicant’s claim, on the fact that the First Applicant had not publicly expressed dissent for religious reasons previously whilst living in Iran, despite having had the opportunity to do so, reveals a failure on the part of the Assessor to understand the First Applicant’s claim.

7. Counsel for the Applicants submits that this failure arises because the First Applicant’s conduct in Iran was irrelevant on the basis that the occasion for the First Applicant to express his dissent or to not stay quiet never arose in Iran in circumstances where the First Applicant then did not have a secular humanist mindset. Counsel for the Applicants submits that, given the First Applicant’s express claim, the only relevant conduct which might be of probative value regarding the First Applicant’s claim and his prospects upon return to Iran is conduct which occurred after the First Applicant left Iran and whilst he was living in Australia. Counsel for the Applicants submits that the Assessor failed to constructively deal with the First Applicant’s claim when the Assessor found that the First Applicant’s claim about his secular humanist views was exaggerated and inconsistent with the way that the First Applicant had previously behaved in Iran. 

8. Counsel for the Minister submits that the First Applicant’s claim was understood by the Assessor and was dealt with in the ITOA accordingly, highlighting the various extracts from the ITOA in which the claim was properly identified (see [13] and [15] above). Counsel for the Minister submits that the Assessor simply found that the First Applicant’s claim that if he were returned to Iran he would protest based on his secular humanist views was exaggerated. Counsel for the Minister agreed that this finding is evident where the Assessor stated as follows (CB 462, extracted at [16] above):

   … The [First Applicant] has not publicly dissented with Shiite Islam or Islam in general when he was living in Iran, despite having had the opportunity to do so. I find that his claim he could not ‘stay quiet’ about his loss of faith is exaggerated, and is not consistent with the way he has previously behaved in Iran…

Consideration

1. There is no doubt that the Assessor correctly identified the First Applicant’s claim to be that the First Applicant “…has embraced a humanist secular mindset since living in Australia…[and] that he could not be quiet about his lack of religious belief if he went back to Iran” (CB 459; see also [13](c)(i) above).

2. However, when regard is had to the reasoning underlying the Assessor’s finding in relation to the claim (CB 462, extracted at [16] above), it is evident, in my opinion, that the Assessor only had regard to the First Applicant’s behaviour in Iran prior to living in Australia, and before the First Applicant had adopted his secular humanist views, in rejecting the First Applicant’s claim that he would in fact express dissent based on his secular humanist mindset if he returned to Iran.

3. I agree with the submissions of Counsel for the Applicants that this reasoning engaged in by the Assessor completely overlooks the First Applicant’s claim that he only developed his secular humanist mindset after he arrived in Australia. Despite this, the Assessor either misconceived or failed to understand the argument essential to the First Applicant’s claim that if he returned to Iran he would not be quiet about his new religious beliefs.

4. Accordingly, I find that the Assessor failed to constructively deal with the First Applicant’s claim and that this failure was dispositive to the outcome of the ITOA in relation to the First Applicant’s claim to fear persecution or significant harm if he were to return to Iran. This amounted to a failure by the Assessor to afford the First Applicant procedural fairness in the ITOA which subsequently gives rise to jurisdictional error.

5. Counsel for the Applicants submitted that if the Applicants were successful on either Ground Two or Ground Three of the amended application for judicial review, there should be a single declaration made by the Court with respect to the ITOA for the following reasons:

   a)although the ITOA concerned different claims by the husband and the wife, the First and Second Applicants, the assessment was prepared as a single piece of advice; and

   b)the three applicants are a family unit, and if any one member of the family unit were exposed to a well-founded fear of persecution that would have influenced, at the very least, whether or not the rest of the family were so exposed. 

6. No submissions were made by the Minister contrary to this argument made on behalf of the Applicants. Consequently, I will make the single declaration sought by the Applicants.

Ground Three

1. Ground Three in the amended application for judicial review is as follows:

   3.  The Second Respondent did not consider an argument made by the Second Applicant, being that she not have available state protection in relation to an attempt to abduct her.

2. The Second Applicant’s argument as identified by the Assessor is set out in Part A of the ITOA as follows:

   a)under the heading “5. Protection Claims/Information to be Assessed in this ITOA” (CB 447-448):

   i)“The [Second Applicant] feared future abduction in Iran” (CB 447);

   ii)“That the [Second Applicant] would face a continual threat to her physical integrity and rights on return because she was previously subject to an attempted kidnapping in Iran” (CB 448);

   b)under the heading “9. Procedural Fairness” and in response to an opportunity said to be given to the Second Applicant to comment on, amongst other things, information that “...[t]he Iranian police investigated the attempted abduction and did not fail to protect [the Second Applicant]…” (CB 451), the Second Applicant said that “...[s]ome men attempted to abduct her outside the camp and the police made a report. No one followed it up because she came from the camp…” (CB 453).

1. In Part B of the ITOA under the heading “4. Is the Fear Well-Founded?” (CB 462-464), the Assessor made the following finding which the Second Applicant submits reveals that the Assessor failed to understand or misunderstood the Second Applicant’s actual argument (CB 463-464):

   The [Second Applicant] was once subject to an attempted abduction in Yadz outside the camp where she lived. There is no evidence that the police failed to follow this up or that they would fail to protect her. I note that she was rescued by neighbours, and this indicates that the local population were prepared to intervene and defend her. There were no further similar incidents in the time the [Second Applicant] was living in Iran. I do not accept there is a real chance that similar incidents will occur to her in the future as a claimed stateless Faili Kurd in Iran.

   I note that the [Second Applicant] is religious and she wore a veil and modest clothing during her ITOA interview. For this reason, I find the [Second Applicant] is unlikely to attract attention in Iran because she behaves like a conventional Shiite woman. She is also more likely to receive the protection of the state as a publicly observant Shiite. The [First Applicant] appears to treat [the Second Applicant] properly and I do not accept she faces a real chance of serious harm from the [First Applicant], other members of her family, from the Iranian regime, or from members of the general community as a woman in Iran or other related PSG group.

2. In relation to the Second Applicant’s claim that there was an attempted abduction in Iran, Counsel for the Applicants submits that the Assessor’s finding that “...[t]here is no evidence that the police failed to follow this up…” (CB 463, extracted at [28] above) was wrong as the Second Applicant gave direct evidence when she put her argument that “…[s]ome men attempted to abduct her outside the camp and the police made a report [but] [n]o one followed it up because she came from the camp…” (CB 463, extracted at [27](b) above). Counsel for the Applicants submits that the finding made by the Assessor that “...[t]here is no evidence that the police failed to follow [the attempted abduction] up…”, therefore, demonstrates the Assessor’s misunderstanding of the Second Applicant’s claim.

3. Counsel for the Applicants submits that there was clear and direct evidence contrary to the Assessor’s finding which amounts to a failure by the Assessor to deal with important evidence concerning an incident which, if true, would have plainly been very important to the assessment of the Second Applicant’s prospects upon return to Iran. Counsel for the Applicants argues that as the Second Applicant’s claim was misunderstood, the Assessor failed to constructively consider the claim actually advanced by the Second Applicant, depriving the Second Applicant of procedural fairness.

4. Counsel for the Applicants submitted that the Second Applicant’s claim was not just that she was abducted, but that she was denied State protection when it was sought. Counsel for the Applicants argued that this claim that the Second Applicant was denied State protection when it was sought is relevant to both the assessment of whether the Second Applicant would be able to avail herself of State protection and of the risk of significant harm if the Second Applicant were returned to Iran.

5. Counsel for the Minister commenced his oral submissions by noting those extracts from the ITOA where the Assessor identified the Second Applicant’s claim (see [27] above). In addition to the finding in Part B of the ITOA (extracted at [28] above) relied upon by Counsel for the Applicants, Counsel for the Minister referred to the following extracts where the Assessor stated as follows (CB 463):

   …When the [Second Applicant] suffered an attempted abduction when she was pregnant in 2007-2008, neighbours from the camp intervened to protect her. For this reason, I do not accept there is a real chance of the [First Applicant] or members of the [First Applicant’s] family being assaulted or suffering sexual assault, using a forward looking test.

   …

   …I do not accept that the Iranian police would fail to protect the [First Applicant] or his family members. I do not accept that the [First Applicant] or his family are faced with a real chance of being persecuted in Iran for these reasons.

6. It should be noted for completeness that the latter extract in [32] above relied upon by Counsel for the Minister was preceded with the sentence “…The [First Applicant] did not approach the Iranian police about it [sic] the attempted assault, but there is no evidence that the police would fail to investigate the complaint...” (CB 463).

7. Counsel for the Minister submitted that the Assessor did understand the Second Applicant’s claim and argued that this was evident from Part A of the ITOA in which the Second Applicant’s claim is identified by the Assessor as being that “…[s]ome men attempted to abduct [the Second Applicant] outside the camp and the police made a report. No one followed it up because [the Second Applicant] came from the camp…” (CB 453).

8. Counsel for the Minister further submitted that it is evident from the extracts of the Assessor’s findings (see [28] above) that the Assessor found independently of the Second Applicant’s claim that there was no evidence that the Iranian police would fail to follow up her complaint about the attempted abduction or that they would fail to protect her. Counsel for the Minister argued at the hearing that what the Assessor was saying was that there was no specific evidence given to the Assessor as part of the ITOA, other than the Second Applicant’s claim that the police failed to follow up her complaint.

9. Counsel for the Minister further argued that the Assessor found as follows:

   a)

   “…I do not accept that the Iranian police would fail to protect the [First Applicant] or his family members…”

   
   

   (CB 463, extracted at [32] above);

   b)“...I note that [the Second Applicant] was rescued by neighbours, and this indicates that the local population were prepared to intervene and defend her. There were no further similar incidents in the time the [Second Applicant] was living in Iran…” (CB 463, extracted at [28] above);

   c)the Assessor noted that the Second Applicant was a modest and religious person, wearing a veil at the ITOA interview;  and

   d)the Assessor, therefore, did not accept that there was a real chance that similar incidents (to the attempted abduction) would occur to the Second Applicant in the future were the Second Applicant to return to Iran (CB 464, extracted at [28] above).

10. Consequently, Counsel for the Minister submits that the Assessor both constructively considered the Second Applicant’s claim and addressed the critical question which he was required to consider, namely, whether the Second Applicant’s claimed fear of further abduction in Iran was well-founded.

Consideration

1. In my opinion, it is evident that the Assessor misunderstood the Second Applicant’s claim that there was an attempted abduction which the Second Applicant reported to police and that no further action was taken by the Iranian police.  The Assessor stated in his reasoning, when referring to the attempted abduction, that there was “no evidence” before him that the police failed to follow up the Second Applicant’s claim about the attempted abduction (see [28] above). I do not agree with the submission of Counsel for the Minister that the Assessor was saying that there was no “specific” evidence before him, other than the Second Applicant’s claim. To adopt this approach would be to read into the Assessor’s reasoning words which are simply not there.

2. Counsel for the Applicants accepted that the Assessor applied a forward-looking test, but argued that procedural fairness required the Assessor to determine or apply that test according to the nature of the incident as the Second Applicant claimed it to be, which included the fact that the Second Applicant complained to the police about her attempted abduction and that the police did not follow it up.  Counsel for the Applicants submits that as the Assessor did not do that, he deprived the Second Applicant of procedural fairness during the ITOA process.

3. However, although I am satisfied that the Assessor misunderstood the Second Applicant’s claim that she would be denied State protection if she returned to Iran, I am not satisfied that the Assessor’s failure to afford the Second Applicant procedural fairness constrained the Second Applicant’s opportunity to propound her case so as to amount to a practical injustice (see SZSSJ at [82], extracted at [11] above).

4. I make this finding on the basis that the Assessor found that the Second Applicant’s claim that she would be abducted if she returned to Iran was not well-founded for the following reasons:

   a)

   the attempted abduction was thwarted by neighbours at the Second Applicant’s camp who intervened to protect her

   
   

   (CB 463, extracted at [32] above);

   b)

   there were no further similar incidents during the period of

   
   

   2007-2008 whilst the First and Second Applicants were living in Iran (CB 463, extracted at [28] above); and

   c)

   the Second Applicant is unlikely to attract attention in Iran because she behaves like a conventional Shiite woman

   
   

   (CB 463, extracted at [28] above).

5. In other words, the Assessor rejected the Second Applicant’s claim that she would be abducted if she were to return to Iran. Accordingly, the Assessor’s failure to understand the Second Applicant’s argument that the police did nothing about her complaint regarding the attempted abduction did not amount to a practical injustice.

6. Consequently, I find the Applicants’ third ground of judicial review is not made out.

Conclusion

1. For the reasons set out in this judgment, I will make a declaration that the International Treaties Obligations Assessment dated 6 May 2015 was not made in accordance with law. I will also make an order that the First Respondent pay the Applicants’ costs in a fixed amount.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:  29 March 2018