CMB16 v Minister for Immigration

[2017] FCCA 726

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMB16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 726

Catchwords:
MIGRATION – Safe Have Enterprise visas – claim that arose on the material before the Authority that the Authority should have addressed and made findings on – a necessary requirement of the review conducted by the Authority is to address the claims that are made or that arise on the material before the Authority – the applicant’s membership of the social group “Women in Iran” was not addressed or the subject of findings by the Authority – jurisdictional error identified.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DB, 476, Part 7AA

First Applicant: CMB16

Second Applicant: CMB16A

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2396 of 2016

Judgment of: Judge Street

Hearing date: 12 April 2017

Date of Last Submission: 12 April 2017

Delivered at: Sydney

Delivered on: 12 April 2017

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the Applicants to file in Court the further amended application and dispense with the need for electronic filing of the same.

2. Join to the proceedings (REDACTED), a minor, as Second Applicant in the proceedings.

3. The Second Applicant be identified by the pseudonym CMB16A and that there be no publication or recording of the Second Applicant’s name.

4. Under r11.11 of the Federal Circuit Court Rules 2001 (Cth) I appoint the First Applicant as litigation guardian with regard to the Second Applicant.

5. A writ of certiorari is issued calling up the record of the Immigration Assessment Authority and the decision made on 12 August 2016 is quashed.

6. A writ of mandamus is issued to the Immigration Assessment Authority requiring the Immigration Assessment Authority to determine the applicant’s application according to law.

7. The First Respondent pay the Applicants’ costs fixed in the amount of $15,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2396 of 2016

CMB16

First Applicant

CMB16A

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 12 August 2016 affirming a decision of the delegate not to grant the applicants protection visas.

2. The applicants are citizens of Iran. The first applicant is the mother of the second applicant, who is a child and has been appointed a litigation guardian for the purpose of these proceedings. 

3. The first applicant entered Australia with her husband and daughter on 31 October 2012.  On 25 November 2012, the first applicant participated in an Irregular Maritime Arrival Entry Interview with an officer of the Department.  On 13 July 2015, the Department wrote to the applicants after an earlier purported application for protection inviting the applicants to make valid visa applications.

4. On 19 August 2015, the applicants applied for Temporary Protection Visas. In support of that application, the first applicant provided a statutory declaration dated 5 August 2015. That statement identified problems for the first applicant involving her first husband, alleged threats made by the first husband and referred to her daughter’s illness. 

The delegate

1. The first applicant made allegations of an incident involving the Basij which on its face constitutes an allegation of rape. The first applicant alleged that she was informed that a recording had been made of the attack and would be used against her if she made a complaint. The first applicant said that she was very afraid because in Iran it is common for people to make recordings of such incidents and to sell them to people who sought to assist the first applicant or ones in respect of which the first applicant told that she had had an argument with her husband. 

2. The first applicant alleged that she asked the men to take her to a police station but that they did not. The first applicant referred to the police in Iran not being like the police in Australia. The first applicant referred to going to hospital as a result of the incident and not telling her husband. The applicant referred to her country being one in which things happen under the name of Islam and that she believed that Islam in her country was rotten. The first applicant referred to coming to Australia because of an incident which involved the Basij. 

3. The first applicant alleged that the government, being the Iranian regime was the cause of her fleeing Iran and that they had inflicted pain and misery upon the people. The first applicant alleged that she was happy to be a good Muslim person, but that in Iran they are abusing Islam. The first applicant said that the Iranian regime does not protect women. The first applicant alleged that she was abused in the name of Islam and forced to flee Iran even though she was a Muslim woman. 

4. The first applicant identified what would happen to her if she were to make a complaint against the Basij and that she would be likely charged with adultery, condemned and stoned to death. The first applicant in her statement referred to women in her country being “afraid of all men - father, brother, husband, it is our culture”. 

5. The delegate made adverse findings in relation to the applicant’s claims. The delegate’s reasons relevantly included a heading “Rape by the Basij.” The delegate referred to having given consideration as to whether the applicant was targeted because she was a woman and hence could have been targeted by virtue of her membership of a particular social group namely, “Women in Iran”.  The delegate however, found the incident to be a criminal act by individual elements within the Basij. The delegate made a finding that the incident was an opportunistic random act of violence.

6. The delegate found that the first applicant was not singled out and targeted for reason of race, religion, nationality, membership of a particular social group or political opinion. 

The Authority

1. By letter dated 20 June 2016, the Authority informed the applicant that the application had been referred to the Authority for review.  The letter identified the opportunity to present submissions as well as limited circumstances in which new information can be obtained and included an attached fact sheet and practice direction. The practice direction in the context of written submissions referred to an invitation to respond as to why the applicants disagree with the decision of the Department as well as any claim or matter that the applicants presented to the department that was overlooked. 

2. Submissions were received from the Refugee Advice and Casework Service on behalf of the applicant which referred to the applicant’s claims of fear of harm from her ex-husband, that she would face ongoing harassment from the Basij and that she was not of adverse interest to a particular person and that her religious beliefs would cause her harm.

Information before the Authority

1. The Authority identified the applicant’s background and referred to the material provided under s.473CB of the Act. The Authority also referred to the material provided with the submissions dated 29 July 2016. In relation to new information, the Authority was satisfied that there were exceptional circumstances to justify considering the new information.

Applicants’ claims for protection

1. The Authority identified the applicants’ claims relevantly as follows:-

   • The applicant was previously married to a man 'J', from whom she subsequently divorced. J was abusive to the applicant and harmed her physically and mentally. Due to incidents that occurred after the applicant and J divorced, J has threatened to harm the applicant's husband and the applicant child.

   • The applicant child suffered from ill health in Iran and as medication was in short supply and difficult to source, the applicants decided to leave Iran. The applicant child's health has improved in Australia, however the applicant fears it would deteriorate if they return to Iran.

   • As medicine for the applicant child was difficult to locate, the applicant's friend 'F' suggested looking for the medicine in smaller suburbs or villages outside Tehran. The applicant and F did this in a private car, but were stopped by Basij, blindfolded and taken to a Basij station where the applicant was raped. She was then dumped by the side of a road and told not to register a complaint as they had a video recording of the attack.

   • Shortly before the applicants departed Iran, the applicant's brother 'M' had an encounter with Sepah which implicated the applicant. Sepah has been to the applicant's home, which is now vacant and has searched the homes of M's family members. The applicant fears harm from Sepah due to her association with M.

   • If they return to Iran and Sepah arrests them, the applicant fears that due to the video of her rape, she will be charged with adultery and condemned to being stoned to death.

   • The applicant fears that if she returns to Iran, she will be arrested by the authorities, tortured and killed for reasons of her religious and political crime of adultery (“zena”) and her political and religious opinion which is imputed to her for seeking asylum in Australia.

Assessment of refugee criterion

1. The Authority made adverse credibility findings in relation to some aspects of the first applicant’s claim regarding her fear from her ex-husband. The Authority referred to the second applicant’s need for medication in the future and did not consider that having to approach a number of different pharmacies to obtain medication amounts to persecution.

2. The Authority did not accept that the applicant had a well-founded fear of persecution given any claimed interest in Christianity. The Authority did not accept the first applicant’s claims of ongoing harassment and threats from her ex-husband as credible and found the first applicant’s fear in that regard was not well-founded. 

3. The Authority referred to the incident involving the Basij and the fear of the Basij. The Authority accepted as plausible the applicant’s claim that she was raped after being detained by the Basij. The Authority did not accept the first applicant’s claim that her parents received parcels containing photographs of the assault. The Authority did not accept that there was a video in existence and did not accept there was a real chance that it could be used to charge the first applicant with adultery and death by stoning if she returns to Iran. 

4. The Authority referred to the available evidence reflecting that the incident is an isolated incident involving an opportunistic crime. The Authority said that the perpetrators of the crime, or members of the Basij in general have not approached the first applicant or harmed her, or threatened to harm her after the incident. The Authority found that the available credible evidence gives no indication that they intend to do so if she now returns to Iran.  Relevantly, the Authority said:-

   “For these reasons, I do not consider the applicants face any chance of harm from the Basij on return to Iran.” 

5. The Authority did not accept as plausible, the claim that as a particular individual was searching for another person that because that person had been sheltered by the first applicant in her home, that she was at risk. The Authority found that the first applicant’s fear of that person was not well founded. The Authority did not accept that the applicants would be subjected to harm as failed asylum seekers if returned to Iran. 

6. The Authority found, after having regard to the applicants’ claims individually and cumulatively, that the applicants do not have a well-founded fear of persecution.

7. The Authority also found that the applicants do not face a real risk of suffering significant harm. 

Before this Court

1. The grounds of the further amended application are as follows:-

   1. The IAA member constructively failed to conduct a review as required by s 473DB of the Migration Act 1958 as he did not consider a claim which arose clearly from the material before him that the applicant faced persecution in Iran as a member of the social group “women".

   2 The IAA member constructively failed to conduct a review as required by s473DB of the Migration Act 1958 as he did not consider a claim which arose clearly from the material before him that the applicant faced persecution in Iran as a member of the social group “women who had been raped".

   3 Contrary to law, the IAA member failed to consider and make findings on the following questions:

   (a) whether as a female victim of rape, the Applicant belonged to a group with features of distinguishing its members from the rest of society.

   (b)whether the authorities in Iran failed to afford effective protection within the meaning of s. 5LA of the Migration Act from opportunistic acts of violence against women;

   (c) if the authorities in Iran failed to afford effective protection within the meaning of s 5LA of the Migration Act from such opportunistic acts against women how did this affect the real chance of further opportunistic acts of violence occurring in the future.

   (d) the Applicant’s claim that she feared persecution in Iran for the crime of Zena including:

   (i) whether or not such prosecution was “discriminatory” within the meaning of section 5J(4)(c) of the Act; and

   (ii) whether the law of Zena is a law of general application and if so, whether it was appropriate and adapted to the legitimate object of Iran or alternatively, whether Zena was a law aimed at members of the social group women who have been raped.

Consideration

1. Mr Godwin of counsel took the court to the applicant’s statement and in particular paragraph 62 and the penultimate sentence in that paragraph referring to the Iranian regime not protecting women. Mr Godwin also took the Court to country information that was before the Authority and in particular, in “AM-2”, page 214 and 215 with respect to violence against women in Iran. Mr Godwin also took the Court in “AM-4” to other country information which identifies information about the treatment of women in Iran, including the treatment of women under the Revised Islamic Penal Code.

2. Mr Godwin of counsel took the Court to the delegate’s consideration of the applicant’s claims and in particular the identification by the Authority and consideration of whether the first applicant was a member of a social group of women in Iran. I am satisfied on the material before the Authority in the present case, that there was a claim that arose on the material before the Authority that the Authority should have addressed and made findings in respect of the first applicant’s feared harm by reason of being a member of a social group namely, “Women in Iran”.

3. Mr Kaplan of counsel sought to contend that there was no such social group. The nature of the claims advanced in any particular matter turn on the evidence and identification of those claims and material that are before the Authority. Relevantly in this case, the material before the Authority included the contents of the first applicant’s statutory declaration and the delegate’s decision that identified a claim in respect of the applicant being a member of a social group namely, “Women in Iran.”

4. Whilst I accept that the applicant’s representatives in their submissions to the Authority focused on the rape and the applicant’s fear of the Basij, a necessary requirement of the review to be conducted by the Authority is to address the claims that are made or that arise on the material before the Authority. In the present case there was a claim I find that arose on the material before the Authority, namely that the applicant was a member of a social group being “Women in Iran” which was not addressed or the subject of findings by the Authority.

5. Mr Kaplan submitted that it was not necessary for the Authority to make express findings in relation to the social group of “Women in Iran” because it was submitted that the findings subsumed that issue by reason of the reference to the incident being isolated and an opportunistic crime. I do not regard the reference in paragraph 29 of the Authority’s reasons to the incident being isolated and involving an opportunistic crime as reflecting a review of the applicant’s claim as to fear of harm by reason of being a member of a social group namely, “Women in Iran”. 

6. Mr Kaplan submitted that the claim in the present case was subsumed by the finding made by the Authority that the applicants did not have a well-founded fear of persecution. That assessment reflected the claims identified by the Authority which did not identify a claim that I find arose on the material before the Authority, being the first applicant’s claim to fear harm by reason of being a woman in Iran. The failure to address that claim is a constructive failure to conduct a review as required under s.473DB of the Act and constitutes a jurisdictional error.

7. I should note in relation to ground 2 that I do not accept that there was a claim of social group of women who had been raped that arose from the material before the Authority. Other than the failure to make a finding in respect of the applicant’s claim that I find arose on the material before the Authority as to being a member of a particular social group being “Women in Iran”, none of the other grounds in the application are made out.

Conclusion

1. In my view, the applicant has made out jurisdictional error as identified in ground 1.

2. I find the failure to make findings with respect to that claim as identified ground 3(a) also constitutes a jurisdictional error.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 April 2017