CVJ15 v Minister for Immigration

[2016] FCCA 2897

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVJ15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2897

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by requiring the second applicant to take reasonable steps to avoid persecutory harm – whether the Tribunal failed to give proper consideration to the Islamic dress code in Iran – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A)

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) CLR 473; [2003] HCA 71
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

First Applicant: CVJ15

Second Applicant: CVK15

Third Applicant: CVL15

Fourth Applicant: CVM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3533 of 2015

Judgment of: Judge Smith

Hearing date: 7 November 2016

Date of Last Submission: 7 November 2016

Delivered at: Sydney

Delivered on: 7 November 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Respondents: Mr A. Markus, Australian Government Solicitor

ORDERS

1. The first named applicant be appointed as the litigation guardian in respect of the third and fourth named applicants.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3533 of 2015

CVJ15

First Applicant

CVK15

Second Applicant

CVL15

Third Applicant

CVM15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 24 November 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.

2. The first two named applicants are husband and wife. The third and fourth applicants are their children. The first named applicant is a citizen of Iran, whereas the second applicant was a Faili Kurd who claimed not to be a citizen of Iran. The first and second applicants both made claims to be owed protection obligations. The third and fourth applicants claim to be eligible for protection visas on the basis of their membership of the family of the first and second applicants.

3. The first applicant claimed that he feared persecution because his uncle had been involved in a protest in which a member of the Basij had been killed. He also claimed that he would be affected by his wife’s statelessness and the fact that he had left Iran on a false passport and for having claimed asylum in a western country.

4. The second applicant claimed that she would be harmed for reason of being a stateless Faili Kurd and also potentially for breaching the Islamic dress code. She claimed that some time ago, she had been arrested for breach of that code, photographed but then let go on an undertaking not to breach the code again. The second applicant also, like her husband, claimed to fear harm for having left Iran on a false passport and for having sought asylum in a western country.

Tribunal’s decision

1. On 9 September 2014, a delegate of the Minister made a decision not to grant the applicants protection visas, and the applicants applied to the Tribunal for review of that decision. The Tribunal made its decision on 24 November 2015. It is only necessary in light of the arguments raised on the judicial review application, to briefly consider the Tribunal’s reasons. In respect of the first applicant, the Tribunal rejected his claims concerning his uncle and also the claims, for reasons which I will deal with later, connected with his wife and found that neither he nor his wife had left Iran unlawfully or on false passports. The Tribunal also did not accept that he would suffer any harm as a result of having sought asylum in a western country.

2. In respect of the second named applicant, the Tribunal accepted that she had been born stateless but found that, since marrying the first applicant, she had become and remained ever since an Iranian citizen. The Tribunal also rejected her claim to have left Iran illegally on a false passport and to fear harm on the basis of having sought asylum in a western country.

Consideration

1. The issues raised at the hearing concern the way in which the Tribunal dealt with the second applicant’s claims concerning the Islamic dress code. For that reason, I will set out the [38] of the Tribunal’s reasons, in which it deals with that issue on a factual basis:

   [The second named applicant’s] other main claim relates to how she was treated one day several years ago when she was deemed by a Basij to be in breach of the national dress code, which is generally viewed as being particularly more restricting towards women. She said she was arrested and taken to an office where she was photographed “mug shot” style. She was evidently released without charge and required only to sign that undertaking to adhere to the dress code in future. She told me this made her afraid. I asked her to be more specific as to how the enforcement of the Iranian dress code might have been applied in a discriminatory way in her case, and she said she was treated like a criminal. When I put to her that it is a scheduled offence for any woman to breach the public dress code in Iran irrespective of ethnicity, nationality or lack of nationality, [the second named applicant] simply repeated that she was made to feel “like a criminal” because the Basiji took a photograph of her. Interestingly, [the second named applicant] originally told the Department that this happened approximately four years before the middle of 2013, suggesting that this occasion fell around 2009. However, she twice stated to me that the incident occurred in “1394” or “ten years ago”. I invited the applicants to discuss the ongoing relevance of this past episode. [The second named applicant] said she was held all day because she could not provide evidence of her identity, but she then indicated that she had her “white” card with her. When I put to her that the card identified her to some degree, she said her treatment had been humiliating because she was required to sign an undertaking to adhere to the dress code. [the first named applicant] said it was an episode that informed their decision to leave Iran, but I note they left Iran some eight years after the alleged episode, according to [the second named applicant’s] evidence at the hearing, evidence with which [the first named applicant] did not disagree. I invited [the second named applicant] to comment on the episode appearing to have been an isolated encounter with the Basiji, and she explicitly declined to comment. I put to the applicants that the dress laws in Iran appear to be generally applicable laws enforced without discrimination as to who breaches them and [the second named applicant] said that, whereas this is true, having to adhere to the code is frustrating. She said the occasion on which she was deemed to be in breach of the code was personally humiliating because of having to be photographed. She did not suggest that she was differentially treated in being photographed on that occasion. On the evidence overall, I find that this episode occurred around ten years ago rather than around 2009, and I give very little weight to it. I find that the treatment of [the second named applicant] was not serious or significant harm. On the evidence provided I do not accept that the treatment of a woman perceived to be in breach of the dress code in the manner described would amount to persecution. I do not accept on the evidence before me that there was any intention to humiliate her on the occasion described. I do not accept on the evidence before me that the episode filled [the second named applicant] with a fear that caused her to decide to flee Iran. I give weight to the law and its enforcement being generally applicable and I give weight to [the second named applicant] implicit claim to the effect that her dress was unintentionally inappropriate. I do not accept that [the second named applicant] is interested in challenging Iran's dress code, even though she finds it frustrating, and I do not accept on the evidence before me that [the second named applicant] would have to alter her behaviour regarding public attire to avoid persecution in Iran in the reasonably foreseeable future.

2. On the basis of those findings, the Tribunal found that the second named applicant was not owed obligations as a refugee and so did not satisfy sub-s.36(2)(a) of the Migration Act 1958 (Cth).

3. In connection with the complementary protection provision under sub-s.36(2)(aa), the Tribunal essentially based its decision on the same reasoning. The Tribunal added at [60], by way of emphasis, that it was not satisfied that the harm that the applicant had described involved any intention to harm or humiliate her. For that additional reason, the Tribunal found that the complementary protection criterion in sub-s.36(2)(aa) was not satisfied.

4. The applicant relied upon a document sent by way of correspondence to the Court entitled “draft amended application”. There was no opposition to that course by the Minister, even though the applicants failed to comply with the orders made by the Court on 19 May 2016. In light of that, I will deal with the grounds raised in that and as explained in written submissions filed by them and in oral submissions made by counsel on their behalf at the hearing.

5. There are two grounds. In oral submissions, counsel for the applicants summarised the first ground by saying that the Tribunal erred by requiring the second applicant to take reasonable steps in order to avoid persecutory harm. This ground relied upon the authority of the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) CLR 473; [2003] HCA 71 (“S395”), amongst others. The second ground was that the Tribunal failed to give proper consideration to the information concerning the Islamic dress code in Iran set out at [25] of the Tribunal’s reasons.

6. Turning to ground one, the grounds in the document entitled “draft amended application” go well beyond the ground as articulated at the hearing, set out above. I will deal with all of the ways in which the ground has been framed. The first way in which the ground is framed is in para.1(e) of the draft amended application;

   Moreover, the Tribunal erred by not accepting that the ‘treatment of a woman perceived to be in breach of the dress code in the manner described would amount to persecution.’

   I do not accept on the evidence before me that there was any intention to humiliate her on the occasion described. I do not accept on the evidence before me that the episode filled [the second named applicant] with a fear that caused her to decide to flee Iran. I give weight to the law and its enforcement being generally applicable and I give weight to [the second named applicant] implicit claim to the effect that her dress was unintentionally inappropriate. I do not accept that [the second named applicant] is interested in challenging Iran’s dress code, even though she finds it frustrating, and I do not accept on the evidence before me that [the second named applicant] would have to alter her behaviour regarding public attire to avoid persecution in Iran in the reasonably foreseeable future.

   As I read that ground, there is no real particularisation of the error asserted. I take it to be a different way of stating the ground as articulated by the applicants at the hearing.

7. The applicants claim that the Tribunal erred at [60] by rejecting the claim that the harm that the second applicant had described involved any intention to harm or humiliate her. Once again, there is no particularisation of that particular error. It appears to be reflected perhaps more fully in the second ground, and I will leave that question until dealing with the second ground.

8. In para.(g), the applicants say that the Tribunal fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct particular social group, that being a Faili Kurd who does not wish to wear the Islamic dress code. There are a number of problems with that ground, the principal one of which is that the applicant never made a claim to be a member of such a particular social group. It did not arise on the material.

9. Therefore, in accordance with the authorities such as Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, the Tribunal was under no obligation to consider the existence of or the effect of such a particular social group. However, perhaps more importantly, the Tribunal’s findings are inconsistent with the second applicant’s membership of such a group. At [38], the Tribunal noted that it gave weight to the second applicant’s implicit claim to the effect that her dress was unintentionally inappropriate and did not accept that she was interested in challenging Iran’s dress code even though she found it frustrating. Those findings cannot be consistent with the particular social group as articulated in para.(1)(g) in the draft amended application.

10. The next particular in the draft amended application is (h). It states that the Tribunal fell into jurisdictional error by failing to acknowledge that laws or policies which target or only apply to or impact adversely upon a particular section of the population are not properly described as laws or policies of general application. This seems to be connected to the next paragraph, which is that a law of general application is capable of being implemented or enforced in a discriminatory manner. It also argues that where laws of general application are selectively enforced, in that the motivation for prosecution or the punishment is unduly harsh for a convention reason, and convention protection may be attracted. Those assertions do not really touch the decision made by the Tribunal. Once again, at [38], the Tribunal notes that it was the second applicant’s own evidence that the dress laws in Iran were generally applicable laws enforced without discrimination. On that basis, it is difficult to see how this ground can arise.

11. Paragraph (j) is the way in which the matter was framed at the hearing. The real problem with the ground is that, once again, it does not address the way in which the Tribunal dealt with the claims made by the applicant or, indeed, with the applicant’s own claims. This was not a case like S395 where the Tribunal was satisfied that if the applicant went back and behaved in a particular matter, she could avoid the persecutory effect of laws and, in particular, the dress code. The Tribunal found that her own claims were that she had unintentionally dressed in a particular way that drew attention to her and that she was not interested in challenging Iran’s dress code even though she found it frustrating.

12. Importantly, the Tribunal found specifically that the second applicant would not have to alter her behaviour to avoid persecution in Iran in the reasonably foreseeable future. Perhaps more critically, it found that on the occasion where the second applicant had acted in a manner differently to that which she had ordinarily acted, which was unintentional, she had not been persecuted so that quite unlike the appellants in S395, it was not the case that if she acted in a particular way, she would avoid persecutory harm.

13. For those reasons, the first ground is rejected.

14. The second ground is that the Tribunal failed to take into account relevant consideration in the exercise of power or fail to give proper genuine or realistic consideration of the applicant’s claims or integers of those claims with regard to the imposition of the Islamic dress code on the second applicant. The particulars to the ground are, in effect, the information which is referred to at [25] of the Tribunal’s decision, and I will set out that information starting with sub-para.3.1:

    …

    3.1

    Behaviours considered by the Iranian authorities as contravening Islamic values, many of which are proscribed by law, include transgressions of the Islamic dress code, consumption of alcohol, male-female fraternisation, extramarital sexual relations and listening to Western music.

    3.2

    Enforcement of morality norms in Iran is often unpredictable and inconsistent. Some behaviours contravening morality norms are reportedly widespread in Iran and often tolerated by the authorities. The payment of bribes to avoid penalties for transgressing morality norms is common.

    3.3

    The main enforcers of morality norms in Iran are special units of the police and the Basij. The involvement of the Basij in morality policing has decreased in recent years. The term ‘morality police’ is often used to refer to enforcers of morality norms in Iran.

    3.4

    Morality units of the police can be identified by their green uniforms and vans. Female members of the morality police wear the chador. Members of the Basij do not normally wear uniforms. The morality police often patrol streets in vans and there are areas in Tehran known to have regular morality patrols.

    3.5

    There had been a significant backlash from conservative elements of the regime against President Rauhani’s statements in support of easing of state control aver the population, including the enforcement of the dress code. Although some reports indicate that the number of morality patrols in Tehran has decreased since Rouhani assumed office in August 2013, there has been no significant change in the regime's stance toward enforcing morality norms.

    3.6

    The morality police engage in a range of enforcement activities, from issuing verbal warning to detaining people found transgressing morality norms.

    Dress code and ‘Western’ appearance

    3.7

    All women in Iran are required to wear the hijab in public, covering their hair and much of the body. What constitutes a violation of a ‘proper hijab’ has varied from time to time. Men are also expected to adhere to the Islamic dress code, which excludes clothes, hairstyles and accessories considered ‘too Western’. The morality police often patrol crowded areas to enforce the dress code. Women and men can face low-level harassment and short-term detention by the morality police for violating the Islamic dress code or sporting tattoos or hairstyles deemed inappropriate. The most common penalty for violating the dress code is a warning or a fine. Women stopped by the morality police for being inappropriately dressed may be taken to a police station and detained until their relatives bring them a change of clothes.

    (Citations omitted)

15. The applicant, in particular, relied upon the information referred to at sub-para.3.7 and the last four lines of that subparagraph. The submission was that, broadly speaking, if the Tribunal had properly taken into account the information in those paragraphs, then it could not have made the finding at [60] that the harm that the second applicant had described, did not involve any intention to harm or humiliate her. Once again, there are a number of problems with the ground.

16. The first is that in its terms, [25] of the Tribunal’s reasons reveals that the Tribunal had, in fact, considered the material. I am not willing to infer from any later finding that that was not the case given that the Tribunal expressly says that it was the case. Secondly, the aspects of the information relied upon by the applicant, and, as I note, this is the last number of lines in sub-para.3.7, says nothing about the intention of the people who enforce the laws, and goes no further than considering what might occur. It may be, as counsel for the applicants submitted at one point, that people are humiliated when they are arrested in public or taken to the police station and made to wait until their relatives bring them a change of clothes. However, actual or subjective humiliation is not the gist of significant harm which is required for the purposes of sub-s.36(2)(aa). It is now well established that an essential element of each of the types of harm that can amount to significant harm pursuant to s.36(2A) require an actual intention concerning the particular type of harm.

Conclusion

1. In my view, it was open on any proper consideration of the material referred to in [25] of the Tribunal’s reasons for the Tribunal to conclude at [60], that it was not satisfied that the type of harm described involved any intention to harm or humiliate the second applicant. For those reasons, the applicants have not established jurisdictional error in the Tribunal’s reasons, and the application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 11 November 2016