CKC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 314
•2 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CKC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 314
File number(s): SYG 1733 of 2017 Judgment of: JUDGE EGAN Date of Judgment: 2 December 2021 Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – claim that the Authority failed to properly consider what constituted serious harm – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J(4), 5J(5), 91R(2) Cases cited: CTY15 v Minister for Immigration and Border Protection (2019) FCA 197
Minister for Immigration and Border Protection v WZAPN [2015] 254 CLR 610
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 29 November 2021 Date of hearing: 29 November 2021 Solicitor for the Applicant: Barriston Lawyers Counsel for the Applicant: Mr O. Jones Solicitor for the First Respondent: Mills Oakley Counsel for the First Respondent: Mr G. Johnson Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1733 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CKC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
2 DECEMBER 2021
IT IS ORDERED THAT:
1.The First Respondent’s name be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 11 October 2021 be dismissed.
3.On the undertaking of the lawyer for the First Respondent (Ms Wong) to file and serve the affidavit of Ms Allana Michelle Meaney sworn on 1 December 2021 forthwith, the Applicant shall pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $10,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Iran who arrived in Australia on 31 October 2012 as an unauthorised maritime arrival. On 21 August 2016, the applicant, her husband, and two children, made application for Safe Haven Enterprise Visas (SHEVs).[1]
[1] Court Book (CB) p 147.
In July 2015, the Department was advised that the applicant and her husband had separated. In March 2016, the Department was advised that the applicant’s husband had sexually assaulted the applicant and that the applicant had been granted an apprehended violence order against him.
On 20 September 2016, the applicant was advised that she was no longer considered to be a member of the same family unit as her husband, and accordingly she was invited to lodge a statement of her claims within 14 days. [2] The applicant did not respond to the invitation, and was not subsequently invited to attend an interview with a delegate of the Minister.
[2] CB p 290.
On 17 October 2017, a delegate of the Minister refused to grant the applicant a visa based on findings that the applicant did not make any claims for protection besides stating “ … please see statement of applicant 1”.[3]
[3] CB p 297.
On 21 October 2016, the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.
On 28 October 2016, the applicant’s solicitor advised that the applicant had been separated from her husband for over a year, and that she had converted to Christianity. A request was made for an extension of time to permit the applicant to present information to the Authority.[4]
[4] CB p 335.
On 10 November 2016, the applicant’s new representative provided a written submission to the Authority whereby it was asserted that the claims of the applicant’s husband were in support of the claim made by the applicant, as the applicant and her husband had reconciled. On 1 December 2016, the representative informed the Authority that the applicant and her husband had in fact not reconciled, and that separate submissions would be provided in support of the applicant’s claim.
On 4 December 2016, the applicant’s representative provided a submission addressing the applicant’s claims, which submission included a claim that the applicant feared harm due to her having converted to Christianity, as well as her falling into the category of a failed asylum seeker. The submission further requested that the applicant be given the chance to have an interview to elaborate her claims.
On 22 March 2017, the Authority asked that the applicant provide it with new information relevant to her claims of having converted to Christianity. The applicant’s representative responded by providing the relevant information.
On 28 April 2017, the Authority affirmed the delegate’s decision to not grant the application for a visa.
On 2 June 2017, the applicant filed an Originating Application for Review of the decision of the Authority.
At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 11 October 2021, the one ground of which was as follows:
“Ground of judicial review
1. The Authority made a jurisdictional error in relation to the Applicant’s claim of harm on account of her appearance.
a. The Authority’s determinations of fact must not be legally unreasonable in the sense of “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29]; SZOOR v Minister for Immigration (2012) 202 FCR 1 at [83];
b. The Authority was obliged to give proper consideration to the Applicant’s case, which extended to matters arising from the Authority’s own findings of fact: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39]; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [26]; ADU18 v Minister for Home Affairs [2020] FCA 366 at [24];
c. The concept of “significant physical harassment” in s 5J(5)(b) of the Act, including in relation to temporary detention, was a matter of evaluation for the decision-maker: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [51];
d. The Authority found at paragraph 35 of its decision that the Applicant had been arrested and detained for a day on one occasion in 2012 because of her appearance;
e. The Authority found at paragraph 37 of its decision that “while the law provides for penalties and there have been instances of arrest or imprisonment of women who do not comply with dress standards” it is “rare that women are formally punished for contravening rules around hijab”;
f. The Authority found at paragraph 37 of its decision that women would more often “be issued verbal warnings (as occurs to approximately three million women each year)” or “as appears similar to the applicant’s own experience, might be detained in a car or at a police station for a number of hours”;
g. The Authority found at paragraph 40 of its decision that the Applicant “may again be harassed, briefly detained for a number of hours and given warnings in respect of her appearance, although on the above information and noting she has claimed to have only experienced one such incident I am not satisfied there is a real chance of her facing more serious harm for that reason”;
h. There was no logical basis or proper consideration leading to the Authority’s conclusion as to the Applicant not facing serious harm on account of her appearance. The Authority did not evaluate whether being stopped, warned and / or detained, including repeatedly, would constitute “significant physical harassment” or otherwise constitute serious harm.”
Consideration of Claims by Authority
At [5] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department.
At [23] of its reasons, the Authority recorded that the applicant made claims as follows:
•the person fears persecution and there is a real chance that the person would be persecuted
•the real chance of persecution relates to all areas of the receiving country
•the persecution involves serious harm and systematic and discriminatory conduct
•the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
•the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
•the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
At [24] and [25] of its reasons, the Authority duly recorded what relevantly constituted a person as a refugee under section 5H(1) of the Migration Act 1958 (Cth) (‘the Act’), and what constituted a well-founded fear of persecution under section 5J of the Act.
When considering the applicant’s claims about harassment associated with matters relating to her mode of dressing and the wearing by her of makeup, the Authority at [35]-[38] inclusive said as follows:
“[35] At her arrival interview the applicant made a number of comments about restrictions she faced in Iran. She referred to being stopped when walking with her husband and asked so show their marriage certificate, and to being arrested and detained for a day on one occasion in 2012 because of her appearance. Such occurrences are consistent with country information and I accept these claims as credible. On the information before me I have also taken into account the applicant’s status as a woman who has separated from her husband.
[36] The applicant does not claim to have experienced any further harm or problems as a result of her brief detention in 2012 and I am not satisfied there is a real chance of her suffering harm because of this past incident in the reasonably foreseeable future.
…
[38] More generally, the country information before me indicates that Iran is a heavily patriarchal society and women are subjected to widespread and systematic discrimination in many areas of law and practice, restricting their economic, social, political, academic and cultural rights and freedom of movement. Gender segregation is enforced in many public spaces. Women are said to face systemic discrimination, although the UK Home Office has assessed that while the level of discrimination is severe, it in itself does not generally amount to persecution. There are high rates of domestic violence, sexual harassment, insufficient enforcement of laws against rape, and instances of honour-related killings and other violence. Women face more limited employment opportunities, are paid unequally and have higher unemployment rates than men.
(footnotes omitted)
Having considered the evidence before it, the Authority analysed the evidence concerning the applicant’s expressed fear of persecution as a woman, and on dress and makeup matters, at [40] of its reasons, as follows:
“[40] The applicant has lived in Tehran and Karaj, both major cities. She has skills and work experience, having been employed for a number of years as a kindergarten teacher. Although her parents are in Australia, she does have a sibling in Iran and so would not be entirely without family support. I am not satisfied that the applicant has previously experienced a level of discrimination which would amount to serious harm. I accept that the applicant may in the future experience harassment, discrimination and stigma as a result of her separation from her husband and in the event that they divorce, and that she will have lesser rights in that process. I also accept that she will continue to experience discrimination and restrictions as a woman. I accept that she may again be harassed, briefly detained for a number of hours and given warnings in respect of her appearance, although on the above information and noting she has claimed to have only experienced one such incident I am not satisfied there is a real chance of her facing more serious harm for that reason. Considering the applicant’s particular circumstances as a skilled woman with a history of employment, originating from an urban area, and with family in Iran, I am not satisfied that the harassment, stigma, discrimination, inequality and possible brief periods of detention relating to hijab that she may face amounts to serious harm, whether considered alone or cumulatively. On the available country information I am not satisfied there is a real chance of her facing more serious harm on account of her gender, separation or other circumstances in Iran, or a combination of these matters.”
Consideration of Grounds of Review
It was submitted by Mr Jones of Counsel on behalf of the applicant that the Authority acted illogically by failing to relevantly undertake a consideration of the statutory criteria as set out in section 5J(4) and (5) of the Act. It was argued that the Authority did not consider the possibility that the applicant could be further detained on a periodical basis, by reason of her not conforming to proper dress requirements, could constitute significant physical harassment, or serious harm. Section 5J of the Act relevantly provided as follows:
“5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.”
The applicant relied upon the judgment of Perry J in CTY15 v Minister for Immigration and Border Protection (2019) FCA 197 at [50]-[52] inclusive. For the purpose of distinguishing that case from the present, it is convenient to respectfully refer to the reasons of Her Honour at [47]-[57] inclusive, which relevantly were as follows:
“[47] Mr Williams for the appellants appeared to accept that there was no claim by the wife expressly to the effect that she feared persecution as a member of a particular social group, namely, women in Iran who do not wish to abide by Islamic extremism including the dress code. As I have mentioned, the central issue is whether, as Mr Williams contended, this claim squarely arose from the material before the Tribunal.
[48] Turning first to the applicable principles, it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42]:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.
[49] A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason: Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “is apparent on the face of the material before the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at 19 [58] (the Court). As Allsop J (as his Honour then was) explained in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124):
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
(emphasis added)
See also Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA) at 300 [70] (the Court); DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [6]-[9] (Siopis and Griffiths JJ), [50] (Logan J); DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [19]-[22] (the Court).
[50] Secondly, the claim that the wife feared persecution as a member of a particular social group of “women in Iran who do not wish to abide by Islamic extremism including the dress code” does arise sufficiently from the material before the Tribunal to have required the Tribunal to consider the claim in line with these principles. The claim that she did not wish to abide by the strict Islamic dress code is necessarily implicit in the wife’s claim about the 2013 incident that she had worn make-up for her son’s birthday, had blown dry her hair for the special occasion, and that her hijab was loose exposing her hair. In other words, the very fact that she went out in public wearing makeup with a loosened hijab shows that she wishes to do this despite the fact that it does not comply with the strict Islamic code enforced in Iran.
[51] In this regard, it is significant that, despite having rejected the appellants’ claims that a fight occurred between the husband and the two men and that the wife failed to comply with the dress code, the Tribunal at [88] nonetheless addressed the possibility that it might have been wrong to reject the wife’s account of what she was wearing (applying the so-called “what if I am wrong” test): see Guo at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also e.g. Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at [62] (North J agreeing at [129])). Thus, bearing in mind that the Tribunal did not reject the appellants’ story that they had gone out for their son’s birthday, at [88] of its reasons the Tribunal left open and addressed the possibility that the wife’s claims as to what she was wearing in a public place were true. Furthermore it was never suggested by the wife or her husband, nor put to either of them, that the wife’s hijab had come loose accidentally; nor was it suggested that the wife had been compelled against her will to wear make-up or to loosen her hijab, or that she was unaware of the prohibition against this conduct by the dress code. The claim was that this was what she had chosen to do. Moreover, the country evidence accepted by the Tribunal at [70] was that the Islamic moral law or code of behaviour enforced as an aspect of the battle against foreign cultural influence in Iran includes ensuring the proper wearing of the hijab for women and a prohibition upon women wearing make-up (as well as wearing tight clothing, which the wife also claimed to have worn): see above at [37] and [38].
[52] Thirdly, as the appellants contend, to the extent 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. As Gageler J succinctly explained in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 with respect to the effect of the High Court’s decision in Appellant S395/2002:
[36] The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:
If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country. (Emphasis in original)
[37] The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic.
(Citations omitted)
[53] In this regard, while the migration agent expressed the claims in his submissions in terms of the wife’s membership of a particular social group of women in Iran (relevantly) “woman [sic] who don’t abide by strict Islamic dress codes” or imputed political opinion as a result of not complying with the religious moral code, the substance of the wife’s own claims and those of her husband was that she complied with strict Islamic dress codes because she was afraid to do otherwise.
[54] I also note that the Tribunal’s assessment of what may occur in the future also failed to address the UN 2015 Report cited by the appellants in their submissions to the Tribunal, which referred to the dress code being more strictly enforced since 20 June 2015 and concerns about a related escalation in violence by unknown actors against women for immodest attire.
[55] Fourthly, the Minister’s counsel correctly accepted that, if the Court should find that the claim that the wife feared persecution as a member of the social group of women “who do not wish to abide by Islamic extremism including the dress code” squarely arose from the material before the Tribunal, that claim was not considered by the Tribunal and as a result the appeal would have to be allowed. Implicitly in this, the Minister correctly conceded that if the claim were accepted, it may lead the Tribunal to conclude that the wife had satisfied the criterion in s 36(2)(a) or (aa): WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [45] (the Court). As such, the error was a material one: Hossain vMinister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ).
[56] Finally and in any event, the appellants contend that the primary judge erred in failing to find error in the Tribunal’s finding at [89] that country information did not suggest that women in Iran are required to wear a chador (see particular (l) to ground 1 of the notice of appeal). Contrary to the decision of the primary judge, in my view this finding does reveal a jurisdictional error. The Tribunal referred to the lack of country information about any requirement to wear a chador in Iran because plainly if that were a requirement, the wife would not have complied with it. In other words, the finding that wearing a chador was not a requirement was relevant to the Tribunal’s reasoning only because it found that the wife had complied with the dress code despite accepting the possibility that she was wearing too much make-up and not entirely covering her hair: Tribunal reasons at [88] and [89]. This reveals a fundamental failure by the Tribunal to understand the wife’s claim that wearing make-up and failing to wear the hijab so as to entirely cover her hair were themselves breaches of the strict Islamic moral code – a claim which is also consistent with the country information that the Tribunal apparently accepted at [70] of its reasons.
[57] For these reasons the appeal must be allowed with costs and the matter remitted to the Tribunal differently constituted for determination according to law.”
Mr Johnson, on behalf of the Minister, submitted that a decision maker such as the Authority was required to consider the gravity and frequency of incidents where harassment was said to have occurred, for the purpose of determining whether temporary detention in such context constituted significant physical harassment or not. Notwithstanding that the case involved a consideration of the then s. 91R(2) of the Act, reliance was appropriately placed upon the analogous decision of the High Court in Minister for Immigration and Border Protection v WZAPN [2015] 254 CLR 610 at [46]-[61] where it was said:
“[46] The circumstances of likely detention identified by the claimant in WZARV serve to highlight the dissonance between the collocation of threats to life and liberty in s 91R(2)(a) and the construction of the paragraph on which the claimants’ arguments depend. As has been seen, WZARV seeks to base his claim for refugee status on the likelihood that he will be detained for some hours upon his arrival at the airport of his country of nationality. A decision-maker required to apply s 91R(2)(a) would be entitled to regard detention at an airport for an hour or two as not being a loss of liberty of the same level of seriousness as the loss of a human life. Counsel for WZARV was right to perceive that it borders on the absurd to suggest otherwise.
[47] WZAPN argued that, whereas the other paragraphs of s 91R(2) include a qualitative element, a threat to liberty is provided in s 91R(2)(a) as an instance of serious harm irrespective of qualitative considerations. It was said that a “threat” to liberty, without more, is sufficient to constitute serious harm. Moreover, s 91R(2) is an inclusive definition of “serious harm” designed to enlarge the ordinary meaning of the words, and the expression “threat to liberty” should not be read down by reference to “serious harm”. It was said that to require a “significant” threat to liberty, as the IMR did, would be contrary to this approach.
[48] The first difficulty with this aspect of the argument for the claimants is that s 91R(2) does not purport to define the term “serious harm to the person”. This is not a case which engages the proposition for which this Court’s decisions in Wacal Developments Pty Ltd v Realty Developments Pty Ltd and Owners of Shin Kobe Maru v Empire Shipping Co Inc stand as authority, that it is impermissible “to construe the words of a definition by reference to the term defined”. Section 91R(2) does not seek to define “serious harm”; rather, it provides instances of the serious harm referred to in s 91R(1)(b) by way of an aid in its application.
[49] It is true that s 91R(2)(a) does not contain a qualifying adjective, such as “significant”, but, like the other provisions of s 91R(2), it provides guidance towards the determination of whether the persecution which the person claims to fear involves serious harm for the purposes of s 91R(1)(b). As Crennan J, when a judge of the Federal Court of Australia, said in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs:
“Sub-sections 91R(1)(b) and (2) do not replace the test of ‘persecution’ with a test of ‘serious harm’; rather, those provisions require an applicant to have a well-founded fear of persecution involving serious harm.”
(Emphasis in original.)
[50] These observations were referred to with evident approval by Gleeson CJ and Kirby J in VBAO (66). They accord with the view of Gummow J in the same case, where his Honour said, in an illuminating passage:
“It is trite to observe that the six paras (a)-(f) of s 91R(2) should be considered together; they all take their colour from the specification of ‘serious harm’ in the opening words of the sub-section. That phrase in turn may be traced to judicial statements such as that of Mason CJ in Chan to which reference has been made. His Honour also used the adjective ‘significant’ to describe a detriment or disadvantage which answers the description of persecution. The phrase ‘a threat’ to life or freedom was used in Chan by Dawson J. The term ‘significant’ qualifies the physical harassment, physical ill-treatment and economic hardship spoken of in paras (b), (c) and (d) of s 91R(2). The consequence of an action or state of affairs spoken of in paras (d), (e) and (f) must be one which ‘threatens the person’s capacity to subsist’. This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty.”
(Footnotes omitted.)
[51]It is also noteworthy that s 91R(2)(b) lists “significant physical harassment” as an instance of serious harm. Temporary detentions of a person fall naturally within the description of physical harassment, and so readily within s 91R(2)(b). Because that is so, it is unnecessary to engage in the awkward shoehorning of cases of harassment involving episodes of temporary detention into s 91R(2)(a) in order to give effect to Australia’s obligations under the Convention. Moreover, to treat any detention as falling within s 91R(2)(a) rather than s 91R(2)(b) would deprive s 91R(2)(b) of much of the operation it could be expected to have. Further, a determination whether temporary detention amounts to significant physical harassment obviously requires a decision-maker to consider the gravity and frequency of the incidents in which harassment is said to have occurred: that task is indisputably one of fact and degree. It may be said in a given case that the risk of physical harassment involving detention is so severe as to be properly described as a threat to the life or liberty of a person. But to say that is to acknowledge, emphatically, that the question is a matter of fact and degree dependent upon the circumstances of the detention.
[52] Considerations derived from the context in which s 91R emerged, and is required to operate, support the conclusion that the application of s 91R(2)(a) for the purposes of s 91R(1)(b) requires an evaluation of the likely circumstances of the loss of liberty feared by the claimant.
Contextual considerations
Australian decisions on the Refugees Convention
[53] As was said in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 by Gummow A-CJ, Callinan, Heydon and Crennan JJ: “Australian courts will endeavour to adopt a construction of the Act … if that construction is available, which conforms to the Convention.”
[54] WZAPN argued that s 91R is drawn from earlier judicial statements in relation to the Convention to the effect that a threat to liberty is per se serious harm. It is true that, as Gummow J noted in VBAO, s 91R may be traced to dicta in Chan v Minister for Immigration and Ethnic Affairs, where Dawson J said “there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution”. But it does not assist the claimants to point to these dicta because they do not resolve the question as to what is meant by a threat to freedom in this context. In particular, and importantly, Dawson J’s observations do not suggest that the circumstances and consequences of a threat to freedom are irrelevant to whether the threat amounts to persecution.
[55] In Chan, Mason J said:
"Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason." (emphasis in original)
[56] Those observations do not support the claimants' argument. At the highest for the claimants, Mason CJ treated the question whether any deprivation of liberty would constitute persecution as an open question. His Honour went on to say:
"Discrimination which involves interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment for escape or for return to one's place of residence amounts prima facie to persecution unless the actions are so explained that they bear another character."
[57] It is far from clear that his Honour was speaking in this passage of the interruption of ordinary life by episodes of temporary detention, rather than of the kind of conditions to be encountered in the Gulag.
[58] In Minister for Immigration and Multicultural Affairs v Haji Ibrahim, McHugh J said:
"The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution."
[59] WZAPN seized upon the reference by McHugh J to "unjustifiable imprisonment" as support for the view that any episode of harassment involving temporary detention invariably constitutes persecution for the purposes of the Convention. But the context in which McHugh J made this remark, and his Honour's observations made subsequently in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, make it clear that his Honour was not speaking of brief periods of temporary detention, but of arbitrary imprisonment the circumstances of which are such as to warrant the conclusion that it is intolerable. As McHugh and Kirby JJ said in Appellant S395:
"Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it."
[60] Their Honours also said that, in addressing the question whether a person had a well-founded fear of persecution, it was necessary to consider, among other things:
•“the nature, severity and likely repetitiveness of the harm feared;
•the extent to which, if at all, the individual will encounter the harm feared;
•…
•the extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality." (footnote omitted)
International jurisprudence
[61] As the construction of s 91R may be informed by Art 1A(2) of the Convention, so may the meaning of the Convention be illuminated by consideration of the views of the courts of other countries in respect of the notion of persecution in the Convention.”
(footnotes omitted)
As was submitted on behalf of the Minister, the Authority had, at [40] of its reasons, expressly addressed the risk of harm to the applicant in the future, not only by reference to the fact that the applicant had only been detained on one previous occasion in 2012 because of her perceived failure to dress properly, but also based upon country information. The Authority was not satisfied that there was a real chance of the applicant being persecuted in the future by reason of her gender, separation or any other circumstance in Iran.
It could not be said that the Authority had not properly considered the issues before it. The Authority considered the statutory definition of well-founded fear of persecution under section 5J of the Act, and it specifically addressed the question of whether or not any brief period of future detention of the applicant might constitute ‘serious harm’, whether considered alone or cumulatively. Based upon the evidence before it, the Authority appropriately had regard to the gravity and frequency of the applicant’s past harassment. The Authority was entitled to find that any harassment which might be suffered by the applicant in the future would not constitute persecution, in that any such harassment would not be unable to be tolerated.
The applicant’s case is distinguishable from that of the applicant in CTY15. The applicant here did not adduce evidence which, if accepted, might have enabled the Authority to find that she was, in the future, likely to act in any way so as to bring her to the adverse attention of the authorities. The applicant bore the onus of establishing that her fear of persecution was well-founded. The Authority found that the applicant’s fear of persecution was not well-founded. Such finding was open based upon the evidence before the Authority.
It could not be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 2 December 2021
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