CTY15 v Minister for Immigration
[2017] FCCA 282
•23 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTY15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 282 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa applications – judicial review of adverse decision of Administrative Appeals Tribunal to refuse Protection visas – no jurisdictional error – Application to this Court dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 477 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 |
| First Applicant: | CTY15 |
| Second Applicant: | ADM15 |
| Third Applicant: | ADN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3482 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 1 June 2016 |
| Date of Last Submission: | 10 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Williams of Counsel. |
| Solicitors for the Applicants: | Halas Lawyers. |
| Counsel for the Respondents: | Mr H P T Bevan. |
| Solicitors for the Respondents: | DLA Piper. |
THE ORDERS OF THE COURT ARE AS FOLLOWS
Vary Order 1 of the Consent Orders made by the Court on 15 January 2016 to substitute the date of “17 December 2015” for “16 December 2015”.
The Application filed in this Court on 17 December 2015 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3482 of 2015
| CTY15 |
First Applicant
| ADM15 |
Second Applicant
| ADN15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant (CTY15) is a male citizen of Iran aged 33 years, having been born on 3 January 1984.
The Second Applicant (ADM15 or wife) is a female citizen of Iran aged 29 years, having been born on 6 September 1987, and is the wife of CTY15.
The Third Applicant (ADN15 or son) is the son of CTY15 and ADM15 and is aged 6 years, having been born on 9 January 2011.
By Application filed in this Court on 17 December 2015 the First, Second and Third Applicants (collectively the Applicants) seek to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (the Tribunal) dated 6 November 2015 affirming two decisions of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) both dated 7 November 2014, refusing to grant them Protection (Class XA) visas (Protection visa) under s.65 of the Migration Act 1958 (Cth) (Act).
Both CTY15 and ADM15 advanced claims for protection and ADN15 was an applicant as a member of the family unit of his parents, and therefore the success of his Protection visa application was dependent on his father or mother being successful in their respective applications.
Criteria for a Protection Visa
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at [34] to [41] as follows:
[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non-citizen will be subjected to degrading treatment or punishment.
[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
Claims for Protection & Decisions of Delegate
CTY15 and ADM15 left Iran with their son on 18 April 2013. They made their respective Protection visa applications in Australia on 3 September 2013, having arrived as unauthorized maritime arrivals on 4 May 2013.
CTY15 claimed before the Delegate to fear harm from the Iranian authorities arising out of his wife’s contravention of the Iranian female dress code (dress code) and an altercation in January 2013, with certain men in Iran (to be described below). Additionally he claimed to fear harm from the Iranian authorities due to his seeking asylum in Australia and his membership of particular social groups in Iran.
ADM15 claimed fear of harm from the Iranian authorities due to her contravention of the dress code, her seeking asylum in Australia and her membership of particular social groups in Iran.
There was also a generalised claim of imputed political opinion arising out of these alleged incidents.
The factual basis for the claims for protection arose in particular from an incident which occurred on their son’s birthday on 9 January 2013, when CTY15 and his wife and son were walking in Fardis Park in Karaj, Iran. The Decision Record of the Delegate applicable to ADM15 recorded her as stating at an interview before the Delegate on 24 September 2014 that:
Two men approached her and insulted her due to how she was dressed, she explained the men insulted her because the buttons of her manteau (overcoat) were undone and it only went to her thigh, her scarf was loose which exposed her hair and she was wearing makeup. The applicant stated this was her usual manner of dress.
The family were approached by two men in plain clothes who confronted them about the wife’s attire. The men were rude and CTY15 responded angrily and pushed one of the men. Suddenly three more men arrived and they beat and kicked CTY15 with their hands and feet and his wife was screaming and his son was crying.
CTY15 and his wife suspected that these men may be members of the Basij (a regime paramilitary force) or other Iranian government authorities who enforce the dress code in Iran by approaching women in public who may not have complied with it. However, other people in the park then intervened and became involved to stop the fight. CTY15 was bleeding in his nose and mouth and he was taken to a nearby medical clinic.
The same Delegate considered the Protection visa applications of CTY15 and ADM15 in two separate Decision Records, each dated 7 November 2014 and, in short, found that he was not satisfied that Australia had protection obligations to either of them based on the Refugee Convention grounds under s.36(2)(a) of the Act or the complementary protection grounds under s.36(2)(aa) and he accordingly refused to grant them Protection visas and therefore also refused to grant a Protection visa to their son, ADN15.
The Delegate accepted that there had been a physical altercation with two men who may have been Basij in Fardis Park in January 2013, when CTY15 suffered minor injuries, but found that there had been no adverse interactions with the Iranian authorities for the three and a half months in which the family remained in Iran thereafter. The Delegate also accepted that “women in Iran that contravene the Iranian dress code” was a particular social group, and that ADM15 was a member of this group.
However, the Delegate found that the laws concerning the Islamic dress code in Iran do not deliberately target any one group and are laws of general application to the whole population of Iran, and as such do not amount to persecution. That finding was consistent with what Jessup J had said about the dress code in MZZTW v Minister for Immigration and Border Protection [2015] FCA 475 at [19]:
Beyond that, I would say that the reviewer’s approach was unexceptionable from a jurisdictional point of view. It could not be avoided that the feature of Iranian society upon which the appellant relied was rooted in a law of general application with which all women had to comply. The reviewer was correct, in my view, to say that the need to comply with a law of general application could not amount to persecution within the meaning of the Convention.
The Delegate went on to note that ADM15 did not claim to have personally experienced any adverse consequences that affected women in Iran, or that she had personally experienced any adverse consequences from laws that affect women in Iran, but rather she had claimed that until January 2013 she had lived a normal and peaceful life.
In relation to the complementary protection criteria, the Delegate found that the altercation on 9 January 2013 was an isolated incident, as ADM15 had never had any adverse interaction with the Iranian authorities in the past and in the three and a half months after the altercation there had been no further adverse interaction.
Application for Review to Tribunal
On 18 November 2014 the Applicants applied to the Tribunal for review of the decisions of the Delegate and appeared at the Tribunal hearing on 8 October 2015 (incorrectly stated in the Tribunal Record as having occurred on 8 November 2015) to give evidence and present arguments with the assistance of a Persian interpreter and their registered migration agent.
At the hearing before the Tribunal:
a)CTY15 and his wife repeated their claims about the incident on 9 January 2013 in Karaj;
b)CTY15 said that he and his wife feared that they would be punished and jailed if they returned to Iran and would be arrested upon return because of the incident with the government authorities in Iran;
c)ADM15 said (seemingly inconsistently with what the Delegate had recorded her as having said, reproduced at [11] above) that on the occasion of the incident in Fardis Park she was not wearing what she would wear “on normal days”;
d)CTY15 and his wife said that they stayed in Iran for three months after the incident, before leaving in April 2013;
e)ADM15 said that the incident on 9 January 2015 was the first time that she had failed to comply with the dress code.
In the result, the Tribunal affirmed the Delegate’s decisions not to grant Protection visas to the Applicants, because having considered the Applicants’ claims individually and cumulatively, it was not satisfied that Australia owed them protection obligations under the Refugees Convention or under complementary protection grounds pursuant to s.36(2)(aa) of the Act.
The Tribunal first made a factual finding that it did not accept that the alleged incident and fight in Fardis Park on 9 January 2013 took place, either in the way described by the Applicants or at all. It considered the account given by CTY15 and his wife of the claimed incident in Fardis Park to be implausible.
The Tribunal accepted that the Basij are a voluntary paramilitary group and its members can wear uniforms and also operate under cover. It found implausible that when approached by two unknown men in a park to ask questions about his wife’s attire, CTY15 would have pushed one or both of them, because such behaviour would be inconsistent with the climate of fear in Iran painted by the Applicants in their evidence to the Tribunal.
The Tribunal also found implausible the claim that other people in the park would have intervened, if the two and then five attackers were members of the Basij and it considered that if the attackers were in fact members of the Basij, they would have then or earlier identified themselves as such.
Further, the Tribunal found implausible that if the attackers were members of the Basij they would not have arrested CTY15 for pushing one of them. In these circumstances, the Tribunal would have expected the Basij in these circumstances to have detained CTY15 for insulting one of them and would have taken him to a police station.
The Tribunal rejected the claim that CTY15 and his wife would be of interest to the Basij or other members of the Iranian security apparatus as a result of the alleged incident on 9 January 2013, as it found that this incident did not in truth occur.
Having rejected the Applicants’ claims relating to the incident on 9 January 2013, the Tribunal then also rejected the claim that ADM15 had failed to comply with the dress code on that occasion because this alleged failure to comply was the provocation which it was claimed had led to the incident and the fight. The Tribunal found that its conclusion that the wife had not breached the dress code was also supported by the uncertainty of CTY15’s evidence as to how his wife had allegedly contravened the dress code.
The Tribunal found that ADM15 had complied with the dress code in the past. Her evidence to the Tribunal indicated that she normally complied with the dress code in Iran, and the Tribunal considered that she would continue to comply if she returned to Iran. It therefore found that the risk of ADM15 attracting the adverse attention of the Iranian authorities for not complying with the dress code in the reasonably foreseeable future was remote and therefore that she did not have a well-founded fear of persecution on the basis that she was a member of particular social groups described as “women in Iran” or “women who don’t abide by strict Islamic dress codes”, if she returned to Iran now or in the reasonably foreseeable future.
The Tribunal did not accept that CTY15 or his wife had come to the adverse attention of Iran’s security agencies for political reasons in the past. It did not accept that there was a real chance that they would be imputed with an anti-regime political opinion and subjected to serious harm by the Iranian authorities on the basis of their profile as persons who had unsuccessfully sought asylum in Australia, either now or in the reasonably foreseeable future. It did not accept that they had a well-founded fear of persecution on the basis that they were members of the particular social group described as “failed asylum seekers returning from a western country” if they returned to Iran.
Finally, the Tribunal did not accept that the son only spoke English, and while it conceded that he might have some difficulty in adjusting to conditions if he returned to Iran, it did not accept that this would amount to serious or significant harm.
Extension Application
The Applicants had 35 days from the Tribunal’s decision of 6 November 2015 to file their Application for judicial review in this Court. The Application was electronically communicated on 16 December 2015 at 9.51pm and pursuant to rule 2.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth) it is taken to have been filed on 17 December 2015, and requires an extension of some 6 days.
The parties took the Application as having been filed on 16 December 2015 and on 15 January 2016 at the first return date of the Application the Court ordered by consent that time be extended under s.477(2) of the Act up to and including 16 December 2015.
I was satisfied that it was necessary in the interests of the administration of justice for the extension order to be made. The Application for the extension order was made in writing to this Court and an affidavit of the then solicitor for the Applicants had sufficiently explained the short delay.
I considered there was no prejudice to the Minister, who very properly consented to the extension, and I was of the view that the Application for review warranted scrutiny by this Court. I thus made the consent order for an extension.
Grounds of Attack on Tribunal Decision in this Court
The Ground appearing in the Application filed on 17 December 2015 is expressed in general terms and is as follows:
1.The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
At the hearing, the core submission made by Mr Williams of Counsel, who appeared for the Applicants, was that the Tribunal had not paid proper attention to or guided itself by the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395/2002) and thereby erred in its adverse decision to refuse Protection visas to the Applicants.
It was submitted by Mr Williams that ADM15 was an Iranian female who did not wish to abide by the dress code and feared harm on that basis, and that the Tribunal was wrong by deciding inconsistently with Appellant S395/2002 in holding that she could be expected to take reasonable steps to avoid persecutory harm and to live discreetly in a way in which she and her husband could avoid persecution. It was submitted that inconsistently with Appellant S395/2002, the Tribunal did not ask why ADM15 would conform with the dress code or live discreetly if returned to Iran and whether she would actually live in that way in the hope of avoiding persecution.
Consideration
Appellant S395/2002
In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at 330-331 ([35]-[37]) Gageler J said of the meaning and effect of Appellant S395/2002 as follows:
[35]GAGELER J. The definition of “refugee” in Art 1A(2) of the Refugees Convention contains four cumulative elements: (1) the person concerned must fear “persecution” in the country of his or her nationality; (2) the persecution so feared must be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”, (3) that fear of persecution for one or more of those Convention reasons must be "well-founded”; and (4) the person must be outside the country of his or her nationality “owing to” that well-founded fear.
[36]Appellant S395/2002 v Minister for Immigration and Multicultural Affairs was concerned with the third element of the definition. 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.)
In my view the Tribunal did not disregard any relevant principle to be derived from Appellant S395/2002. Rather, in accordance with that decision, the Tribunal determined how ADM15 was likely to live on her return to Iran and then assessed the chance of persecution on that basis. Contrary to the submission made on her behalf and summarized at [36]-[37] above, ADM15 never advanced a case in support of her Protection visa application on the basis that she would defy and not comply with the dress code, either for political or religious reasons or for any reason.
That such was the case can be established from the following circumstances:
a)There was no suggestion in the submissions dated 14 October 2014 to the Delegate from the migration agent for the Applicants that ADM15 would defy or breach the dress code upon her return to Iran.
b)There was no suggestion in the submissions dated 5 October 2015 to the Tribunal from the migration agent for the Applicants that ADM15 would defy or breach the dress code upon her return to Iran.
c)There was no suggestion in either of the statutory declarations of CTY15 or ADM 15, each dated 27 August 2013, that ADM15 would defy or breach the dress code upon her return to Iran.
d)There was no suggestion in either of the written statements of CTY15 or ADM 15, each dated 1 October 2015, that ADM15 would defy or breach the dress code upon her return to Iran.
e)At [32] of its Decision Record, the Tribunal records that ADM15 said that at the time of the altercation on 9 January 2013:
She was not wearing what she wore on normal days.
f)At [54] of the Decision Record of the Tribunal, it is recorded that ADM15 stated that the date of 9 January 2013 was the first time she had failed to comply with the dress code.
g)At [88] of the Decision Record, it is again recorded that ADM15 stated that on 9 January 2013 she was not dressed as she normally would have been.
h)At [89] of its Decision Record, the Tribunal recorded that ADM15 gave evidence that she had not been questioned about compliance with the dress code in Iran prior to 9 January 2013. It is further recorded at [89] that her evidence was that she normally complied with the dress code.
The Tribunal did not accept that the alleged incident and fight on 9 January 2013 took place in the way described or at all, and it also rejected the Applicants’ claim that ADM15 failed to comply with the dress code on 9 January 2013.
It then went on to find that ADM15, having complied with the dress code in the past, would continue to comply with it if she returned to Iran, together with the further findings summarized at [28] above. In these circumstances Mr Bevan of Counsel, who appeared for the First Respondent, submitted that it was open to the Tribunal to find that having regard to ADM15’s past conduct, she would continue to comply with the dress code in Iran in the future, and he submitted that the present case was analogous to the position of the appellant considered by the High Court in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 (NABD). I agree with this submission.
In NABD it was held that the Tribunal did not err in concluding that there was not a real risk of persecution of the appellant were he to practise his Christian faith in Iran in the way he chose to do so. In distinguishing Appellant S395/2002, Hayne and Heydon JJ stated at 39-40 [162] and [168]:
[162]In Appellant S395/2002, the tribunal was held to have erred by dividing the genus of homosexual males in Bangladesh into two groups — discreet and non-discreet homosexual males. That led, in that case, to the tribunal assigning the appellants to the former group, without it considering how the appellants wished or intended to behave if returned to Bangladesh. Moreover, the classification which was adopted was one which appeared to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. More fundamentally, however, the reasoning adopted by the tribunal in that case revealed that it had not made the essentially individual and fact-specific inquiry which is necessary: does the applicant for a protection visa have a well-founded fear of persecution for a Convention reason?
…
[168]At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran.
Likewise in this case the Tribunal correctly entered upon a factual enquiry undertaken by reference to ADM15’s individual circumstances and rejected, as a matter of fact, her claim based on membership of a particular social group, being women in Iran who do not abide by the dress code.
In my view, the Tribunal did not act or decide contrary to Appellant S395/2002.
Other Matters
In [7] of the Particulars to the Ground, it was submitted for the Applicants that the Tribunal erred at [89] of its Decision Record in stating:
Having found that applicant 2 (i.e. ADM15) has complied with the dress code in the past, the Tribunal considers that she would continue to comply with it if she returned to Iran.
I do not consider that the Tribunal erred in reasoning in this way. As was stated by Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
To similar effect, the Full Court of the Federal Court of Australia comprised of Kenny, Griffiths and Mortimer JJ stated in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 443 [33] as follows:-
The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
I consider that it was legitimate for the Tribunal to reason in this way and that no jurisdictional error was thereby committed.
In [8] of the Particulars to the Ground it was submitted that the Tribunal also erred by finding at [ 89] of its Decision Record that there was not:
…any country information to indicate that women in Iran are required to wear a chador.
I cannot find any jurisdictional error in this finding of the Tribunal. It is clear from [69] to [79] of its Decision Record that the Tribunal considered a large body of country information which it records at [58] to [68] as having been put to CTY15 and ADM15. It is well established that the choice of country information and the weight given to it is a matter for the Tribunal. I read this reference to the chador in [89] as merely made by way of emphasising that the dress code did not go so far as to require the wearing of a chador. It was a matter merely incidental to the Tribunal’s decision and does not exhibit jurisdictional error.
In [11] of the Particulars to the Ground it was submitted that the Tribunal wrongly required or expected ADM15 to take reasonable steps to avoid persecutory harm. In [13] of the Particulars the same submission is also made.
In my view this criticism of the Tribunal decision is misconceived. No part of the Decision Record of the Tribunal indicates that it required or expected ADM15 to take reasonable steps to avoid persecutory harm or be discreet upon return to Iran.
Finally, it was submitted that the Tribunal both failed to consider the real risk of harm that might be inflicted on ADM15 under a law of general application in Iran or extrajudicially for not complying with Sharia law and failed to enquire whether the harm feared by ADM15 was appropriate and adapted to achieving the legitimate object of the policy of the state of Iran.
As a general rule, a law of general application is not persecutory or discriminatory. The High Court considered this principle in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, of which the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 per Kenny and Nicholas JJ stated at ([71] – [72]) as follows:
[71]A social group cannot be defined by reference to a fear of persecution based on the non-discriminatory enforcement of a State’s generally applicable domestic legislation: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. Thus in that case, Dawson J said (at 243) that:
[A] law or practice which persecuted persons who committed a contempt of court or broke traffic laws would not be one that persecuted persons by reason of their membership of a particular social group. Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms.
See also Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at 301 [21].
[72]McHugh J also held in Applicant A that persecutory conduct could not of itself define a particular social group, saying (at 263) that:
[P]ersons who seek to fall within the definition of "refugee" in Art 1A(2) of the Convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the “particular social group” of which they claim membership. If it were otherwise, Art 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution.
(citation omitted.)
The decision of the Delegate applicable to ADM15 had considered the issue of whether the dress code was persecutory and found that it was a generally applicable law in Iran applying to the whole population and therefore was not persecutory.
However, the Tribunal upon review in its Decision Record did not consider or refer to whether the dress code was a law of general application and I do not consider that it erred in this regard. It had found that ADM15 did not have a well-founded fear of persecution on the basis that she was a member of any particular social group. This meant that it was not necessary for the Tribunal to consider whether the laws of Iran concerning the dress code were persecutory. This is because, as was said in the judgment of Gleeson CJ, Gaudron Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301 [19]:
…the fact that laws are of general application is more directly relevant to the question of persecution than to the question of whether the person is a member of a particular social group.
Conclusion
I do not consider that the Tribunal decision is infected with jurisdictional error. The findings made by the Tribunal appear to have been reasonably open to it on the material before it. Contrary to the submissions for the Applicants, I do not consider that it constructively failed to exercise its jurisdiction.
Accordingly, the Application must be dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 23 February 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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