DCK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 105
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DCK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 105
File number(s): SYG 2183 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 17 February 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision to cancel a protection visa – whether in affirming the decision the Tribunal made an irrational or unreasonable finding or otherwise failed to give proper consideration in relation to whether the applicant faces harm if she were to return to her country of nationality – application dismissed. Legislation: Migration Act1958 (Cth) ss 99, 101, 104, 105, 107(1), 107(1A), 108, 109, 111, 112, 476, 501(3A), 501CA(4)(b)(ii)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2
Migration Regulations1994 (Cth) reg 2.41
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Division: General Number of paragraphs: 37 Date of hearing: 3 December 2021 Place: Sydney Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Immi House Legal Solicitor for the First Respondent: Mr M Gao of Australian Government Solicitor, by video
Table of Corrections 17 May 2023 In paragraph 29, “Guo” has been replaced with “Gao”. ORDERS
SYG 2183 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DCK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
17 February 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,853.
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
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to cancel the Protection (Class XA) visa (Protection visa) that was granted to the applicant in August 2010. The delegate cancelled the Protection visa because the applicant had given incorrect information in connection with her application for a Refugee Status Assessment (RSA) and a Protection visa.
The applicant claims that, in affirming the decision of the delegate, the Tribunal made a legally unreasonable finding of fact, or otherwise failed to give proper, genuine, and realistic consideration to the material that was before it, when considering whether the applicant will face a serious risk of harm if the Protection visa were cancelled and the applicant were to return to Iran.
BACKGROUND
The applicant is a national of Iran. She arrived at Cocos Island with her brother in January 2010 as an unauthorised maritime arrival.
Applicant obtains Protection visa
In February 2010 the applicant requested a RSA. She claimed she was a stateless Faili, of Shia religious belief, and that she was born in Iran where she lived before she came to Australia. In her RSA entry interview the applicant claimed that in 1999 the applicant’s husband departed for Greece because, in 1997-1998, a new law came into effect requiring all Iraqis and Afghans to leave Iran.[1] The applicant’s brother also left Iran, but he went to Australia. The applicant’s husband called the applicant only once to tell the applicant he was in Greece; but the applicant had not heard further from her husband.[2]
[1] CB200
[2] CB377, [38]
In March 2010 a delegate of the first respondent (Minister) concluded the applicant and her brother met the definition of “refugee”, as set out in Art 1A of the 1957 Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees (Convention). On 20 August 2010 the applicant applied for a Protection visa, which, on 25 August 2010, a delegate of the Minister granted to the applicant.
Applicant’s son applies for Humanitarian visa
In November 2010 the applicant’s son applied for a Class XB 202 Humanitarian Split Family visa (Humanitarian visa).[3] In February 2013 the applicant’s son also applied for a Child (101) visa. In that application, the applicant’s son declared he was born in Tehran, Iran; that he is an Iranian by birth, and holds an Iranian passport; and that he is Kurdish, and Shia Muslim.[4] In May 2015 a delegate of the Minister refused to grant the Humanitarian visa because the delegate found the applicant’s son was a resident of his home country of Iran.[5]
[3] CB380, [42]
[4] CB381, [54]
[5] CB383, [59], [60]
Delegate issues 107 Notice
By letter dated 22 September 2015 a delegate of the Minister, acting under s 107(1) of the Act, issued to the applicant a Notice of Intention to Consider Cancellation of the Protection visa (107 Notice).[6] Subsection 107(1) of the Act provides that the Minister may give a visa holder a notice under s 107(1) (107 notice), if the Minister considers the visa holder did not comply with s 101, s 102, s 103, s 104, s 105, or s 107(2) of the Act. Relevant to the case before me is s 101, which provides:
A no-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
[6] CB196
Section 101 of the Act must be read with s 99, which provides:
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Subsection 107(1) of the Act requires that a 107 notice must “giv[e] particulars of the possible non-compliance”; and it must contain the following:
(a)A statement that, “within a period stated in the notice as mentioned in subsection (1A)”, the visa holder may give a written response to the Minister; and the statement must describe the matters the visa holder should address in his or her response. These differ according to whether the visa holder disputes or does not dispute there has been non-compliance. If the visa holder disputes there has been non-compliance, the response should show there was compliance and, in the case the Minister decides under s 108 of the Act that there was non-compliance, show cause why the visa should not be cancelled; and if the visa holder does not dispute there was non-compliance, the visa holder should show cause why the visa should not be cancelled.
(b)A statement that the Minister will consider cancelling the visa at any one of three particular times, those times depending on whether the visa holder, within the period mentioned in s 107(1A) of the Act, provides a written response, or notifies the Minister the visa holder will not provide a written response. The 107 notice must state that:
(i)if, within the period mentioned in s 107(1A) of the Act, the visa holder notifies the Minister the visa holder does not intend to give a written response, or the visa holder gives a written response, the Minister will consider cancelling the visa when such notice or written response is given; and
(ii)if, within the time mentioned in s 107(1A), the visa holder does not give the Minister a notice or written response, the Minister will consider cancelling the visa at the end of the period mentioned in s 107(1A) of the Act.
(c)A statement setting out the effect of s 108, s 109, s 111, and s 112 of the Act.
(d)A statement that the visa holder’s obligations under s 104 or s 105 of the Act are not affected by the issuing of a 107 notice.
(e)A statement requiring the visa holder to tell the Minister the address at which the visa holder is living, and if the visa holder changes that address before the Minister notifies the visa holder of the Minister’s decision on whether there was non-compliance by the visa holder, to tell the Minister the changed address.
Section 108 of the Act requires the Minister to consider any response the visa holder gives in the way required by the 107(1)(b) notice and decide whether the “there was non-compliance by the visa holder in the way described in the [107] notice”. If the Minister decides there has been non-compliance, he or she may cancel the visa in the circumstances provided for by s 109 of the Act, which provides:
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Circumstances for the purpose of s 109(1)(c) have been prescribed by reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations) as follows:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
The 107 Notice provided particulars of non-compliance by the applicant. The particulars consisted of what the 107 Notice alleged were incorrect statements the applicant had made in a statement she made in support of an RSA, at the RSA entry interview, in form 80, and in the form 866C by which the applicant applied for a Protection visa. The alleged incorrect statements included statements to the effect that the applicant is a stateless Faili Kurd born in Iran; the applicant feared returning to Iraq due to lack of documentation, and that the applicant did not have any connections or ties to Iraq; and the applicant also feared she would face discrimination, denial of basic rights, and possibly being harmed in Iraq because of her undocumented and stateless status. The 107 Notice stated these statements are incorrect because the available evidence indicates the applicant is an Iranian citizen by birth, or is an Iranian citizen by virtue of her marriage to an Iranian citizen; and the applicants’ parents are Iranian citizens, which means the applicant “would have had access to identity documents such as an Iranian passport”. Given these statements were incorrect, the applicant’s claim for protection based on her being a stateless person is incorrect.[7]
[7] CB207-208
Applicant’s response to 107 Notice
On 11 October 2015 the applicant provided a response to the 107 Notice.[8] The applicant claimed that, being a “baby girl”, the applicant was persecuted and harassed from her birth. When the applicant was born her father and family were not keen to record the applicant’s birth and obtain a birth certificate for her. As far as the applicant could remember, she did “not have an Iranian birth certificate to be known as Iranian as long” as she was living in Iran. The applicant’s father tried many times to obtain birth certificates for himself and for his sons; and if the applicant’s father would have wanted to obtain for the applicant some kind of ID, she would have been the last member of her family to get it. Counsel for the applicant took me to the emphasised portion of the following part of the applicant’s response:[9]
If the family and my uncle let him to do it and they do not find me a disgrace to the family just because I flee from home and I came here taking my hijab off and joining a secular society.
[8] CB215
[9] CB216
The applicant further claimed that when she was a teenager she married a member of her father’s family from Iraq who had a “Green Card” and was a deportee from Iraq.[10] The applicant’s husband, however, left Iran illegally. The applicant and her son lived in Iran insecurely and in danger. The applicant did not know her husband had Iranian citizenship.
[10] A “green card” is a card the Iranian government had issued to Iraqi refugees.
The applicant also explained the circumstances in which she left Australia on two occasions to travel to Iran. The applicant said she first went to Iran because her son was in hospital because of severe depression; and she again travelled to Iran because her son had left his guardian’s house, and the police found him sleeping in the streets and handed him to an orphanage organization. On her return to Iran, the applicant’s parents told the applicant that her uncle and most of the relatives believed the applicant was a disgrace to the clan because she left her home and followed a smuggler to Indonesia without the applicant’s family’s permission, and “you took your Hijab off and went to the bar, and went to the parties (men and women) and you had broken our honour rules and borderlines, so you deserve death”.[11] The applicant claimed that if she returned to Iran she will be persecuted for moral crimes and be accused of “Zina” and, therefore, be subjected to public caning, or stoning to death. The applicant said:[12]
As a Woman who flees her home, I am accused of bringing shame upon my family and the clan and I am at risk of being killed by my fanatic Moslem relatives, especially my Uncle. Honor [sic] killings are a widespread practice in fanatic Muslim and extremists.
[11] CB217
[12] CB218
By email sent on 11 October 2015,[13] the applicant’s agent provided submissions to the delegate.[14] The applicant’s agent submitted the applicant fears returning to Iran for the same reasons she gave in her application for protection, namely, that she will face harm because she is a Faili Kurd, and a Shia Muslim. The agent further submitted that the applicant maintained her son was stateless when he was born; the applicant’s husband had obtained citizenship for the applicant’s son, but the applicant did not know this; the applicant did not know whether her parents acquired Iranian citizenship; and the applicant “never got the Iranian citizenship because she was the holder of the green card”.[15] The applicant’s agent also made the following submissions:[16]
[M]y client maintain that she cannot apply for the Iranian citizenship, because she is not an Iranian person and because her uncle who works for the Itilaat (the Iranian intelligence agency) and who promised to harm her because she defeated her family by fleeing to Indonesia, and the fact she was a women, her uncle promised to harm her because she is regarded as a disgrace to the family, because of her uncle’s threats, her father made an arrangement for her to escape Iran to avoid her uncles revenge, my client doubt that her uncle helped her father to get the Iranian citizenship because he works for the Itilaat .
my client maintain that she was traumatized by all of this, she is seeing some psychiatric help due to all what she went through in her life, she maintain that she is taking depression bills , the fact that she haven’t seen her son for ages exacerbated her pain and suffering I as well as the continuous harassment that she receives from some relative in Iran, she maintain that her relatives accused her of living a free, liberal, non committed life, my client maintain that her relatives comment on her face book and criticize her for being very liberal in her views about religion, they also criticize the fact that she does not wear Hijab .
[13] CB215
[14] CB222
[15] CB227
[16] CB232
Department undertakes ITOA assessment
By letter dated 20 October 2015 the Department informed the applicant that it had commenced an International Treaties Obligations Assessment (ITOA) “in order to assess whether the circumstances of your case engage Australia’s non-refoulment obligations”.[17] By letter dated 23 March 2016 the Department notified the applicant of a number of matters relevant to the applicant’s claims that she feared harm if she were to return to Iran, and asked the applicant whether she had any comment on the statements, observations, and information the Department identified in its letter.[18] By email sent on 7 April 2016, the applicant’s agent informed the Department that the applicant had “nothing else to add” in relation to the Department’s letter.[19] By letter dated 21 April 2016, the Department informed the applicant that it had concluded that the applicant did not engage Australia’s non-refoulement obligations;[20] and on 20 June 2016 a delegate of the Minister cancelled the applicant’s Protection visa.[21]
[17] CB235
[18] CB238-239
[19] CB243
[20] CB246
[21] CB249
Before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision. Two days before the hearing the applicant’s agent provided written submissions, in which the applicant’s agent submitted that the applicant satisfies “the following elements of the refugee convention”, namely, membership of a particular social group as a single woman in Iran; membership of a particular social group “as women from Iran not willing to observe Islamic clothing”; and Faili Kurd ethnicity.[22]
[22] CB347
The applicant also provided a statement.[23] She there claimed she did not know that in 2011 the applicant’s brother had applied for her parents to travel to Australia because the applicant “had religion problem with them and every time they ask me to wear hijab”, but the applicant did not want to. When the applicant’s parents came to Australia, they started to advise the applicant about her hijab and her religion. The applicant had a problem with them because she did not want to wear a hijab. The applicant’s parents became upset, and they decided to leave. Under the heading “What will happen if I go back to Iran?”, the applicant stated (errors in original):[24]
It going to be too many problems for me because my life is in serious danger in Iran firstly because Iran is a Islamic country I have to wear Hijab but I don't want to do that and I can’t do that I have to completely change myself which I can’t even imagine so I can't live there because if police or any other government organisation arrest me without Hijab my life will be in danger I won’t be alive anymore
Other Reason I can’t go back because of my uncle and our community they believe that I am Kafar (someone who don't believe god) and they have to kill me because of their religion if you kill someone who is Kafar all your sin will be remove and you will go to paradise
Other reason which I mention it before and I told them to immigration about that but they don't care is my Facebook account and what I had post without hijab and working in bar by now I'm sure all my relative saw my pictures and they showed each other and they believe the way how do 1 live is completely wrong this is why I got too many enemy now and I don't know how many people saw my picture so I have to run away from everyone.
[23] CB350
[24] CB351
The applicant gave evidence before the Tribunal. Relevant is the following evidence the applicant gave to the Tribunal (as recorded in the Tribunal’s reasons):[25]
The Tribunal asked the applicant if anything had happened to her because she had violated the dress code in Iran. The applicant said that she had enjoyed the freedom to dress as she wished in Australia. She would never submit to the dress code again. The Tribunal asked if she had ever been stopped by the basij because of violating the dress code. She said that had not wanted to but she had to dress as her family wished. She was, however stopped and checked on the street by the basij and the women basij to ensure she conformed to the dress code. She said that she had been arrested and questioned because she was wearing bright colours or had some hair showing.
The Tribunal noted that the dress code applied to everyone in Iran. It said that the country information said that more than 2 million people had been stopped and detained for violation of the code between 2006 and 2012. Since it was a law that applied to everyone punishment for breaking the code was prosecution not persecution. The Tribunal wondered why the applicant thought she would be singled out for attention. The applicant said that while there she followed the dress code. She did not want to but she did. She would not want to have to follow the dress code if she returned.
[25] CB390, [122]-[123]
TRIBUNAL’S REASONS
The Tribunal found that the applicant’s father is an Iranian citizen, and that the applicant is a documented Faili Kurd and a citizen of Iran.[26] Given those findings, the Tribunal found that the applicant failed to comply with s 101(b) of the Act.[27] The Tribunal also concluded that the applicant’s Protection visa should be cancelled. In concluding so, the Tribunal relied on findings that included the following:
(a)The Protection visa was granted to the applicant on the basis of the false information the applicant provided to the Department.[28]
(b)The applicant’s non-compliance with s 101(b) was intentional.[29]
(c)Although the applicant has been diagnosed with major clinical depression and generalised anxiety disorder, and she has been receiving treatment for these conditions, the applicant would be able to receive ongoing psychological treatment for depression and anxiety in Iran, if required.[30]
(d)Despite being confronted with evidence to the contrary, the applicant has continued to maintain she has not provided incorrect information to the Department. That demonstrates disregard and disrespect for due process, and a continued willingness to mislead officials.[31]
(e)The applicant has had minimal involvement with the Australian community.[32]
[26] CB385, [78]
[27] CB385, [79]
[28] CB385, [83]-[85]
[29] CB385, [86]-[89]
[30] CB386-387, [92]-[102]
[31] CB388, [103]-[105]
[32] CB389, [112]
In addition to these findings, the Tribunal considered what would happen to the applicant if she returns to Iran. The Tribunal referred to evidence the applicant had given in relation to claims she had made about her employer harassing her; about her uncle threatening to harm the applicant because she had fled to Indonesia; and the evidence in relation to the dress code in Iran which I have reproduced above. The Tribunal:
(a)found the applicant would not suffer serious harm in Iran because she is a Faili Kurd;[33]
(b)accepted the applicant’s family are angry that her application to have her son join her in Australia resulted in her parents no longer being able to travel to Australia to see their children, and caused the applicant’s brother’s protection visa to be cancelled;[34] but the Tribunal did not accept that this anger would result in the applicant being harmed by her family if she were to return to Iran;[35] and
(c)found there is not a real chance the applicant will face serious harm from the Iranian authorities because she is a returnee from Australia.[36]
[33] CB390, [129]
[34] CB391, [136]
[35] CB397, [137]
[36] CB398, [139]
The Tribunal accepted the applicant does not wish to adhere to the dress code in Iran. The Tribunal found, however, that only 25 per cent of Iranians now support the hijab, and women would rarely be punished for contraventions of the rules around the hijab.[37] The Tribunal made this finding after it had set out the following country information:[38]
On dress code violations, the Tribunal accepts and gives weight to, the DFAT Country Information Report on Iran dated April 2016 referring to dress code violations as follows: “An additional note to Article 638 of the Iranian Penal Code states that all women who appear in public places and roads without wearing an Islamic hijab shall be sentenced to ten days to two months’ imprisonment or a fine of fifty thousand to five hundred Rials. As at July 2015, increased debate about the policy of compulsory hijab has coincided with the arrival of the hot summer weather and patrols by the Moral Security Police, including on the country’s highways. A study published by the Iranian Students Opinion Centre found that only 25 per cent of Iranians now support the hijab, compared to 75 per cent in 1976 and 36 per cent in 1995. DFAT is aware of at least one outspoken cleric describing on at least two occasions compulsory hijab as bad policy”.
“There is considerable variation around standards of hijab for women. Age, class and location all impact on what is culturally appropriate. DFAT has observed women in loose fitting headscarves barely covering the head along-side women with a full chador. Credible sources have told DFAT that, while they do not discount the possibility of authorities monitoring hijab, in practice this rarely occurs. These sources also told DFAT that women would rarely be formally punished for contraventions of rules around hijab. Women would be more likely to be escorted to a police station and asked to have a family member bring acceptable hijab after which they could leave without sanction.”
“DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled ‘Westernised’ Iranians. This term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to and try to live what could be called a modern lifestyle. Many poorer Iranians also aspire to such a lifestyle but live more traditionally. However, youth in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour. It is important to note the significance of Iran's sizeable youth population in this regard. Enforcement can be unpredictable and related to the prevailing political atmosphere of the time.”
“An individual woman's access to protection from abuse varies significantly in Iran depending on a range of factors, including class, social background, level of education, ethnic origin, social and legal status. Where a woman lives will also impact on her ability to seek help and shelter. Women living in rural areas, in general, will face greater difficulty seeking government or non-government protection from abuse. DFAT assesses it is possible that a woman without male protection could successfully internally relocate to Tehran or another major city from other parts of Iran. However, the class, ethnic, cultural and other factors listed above would impact on the likelihood of her successful integration.”
[37] CB391, [134]
[38] CB390, [130]-[133]
Given these findings, the Tribunal concluded it was not satisfied the applicant faces a real chance of persecution if she were to return to Iran, now or in the reasonably foreseeable future, and was not satisfied that her fear is well-founded.[39] Further, the Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran there is a real risk that the applicant will suffer significant harm.[40]
[39] CB392, [143]
[40] CB392, [144]
GROUND OF APPLICATION
The applicant relies on the ground of application contained in the amended application, which is as follows:
The Second Respondent (Tribunal) made a legally unreasonable finding of fact or fail[ed] to give proper, genuine and realistic consideration to the case before it.
a.The Tribunal found at paragraph 134 of its decision that the “applicant does not wish to adhere to the dress code in Iran”. It further accepted “the above information that only 25 per cent of Iranians now support the hijab and women would rarely be punished for contraventions of the rules around the hijab”;
b.The Tribunal found at paragraphs 140, 143 and 144 that the Applicant would not suffer relevant harm if she were to return to Iran;
c.The Tribunal was required to refrain from making findings of fact which were legally unreasonable: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29];
d.The Tribunal was obliged to give proper, genuine and realistic consideration to an applicant’s case, in the sense of active intellectual engagement with the case (GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39];
e.There was no relevant basis for the Tribunal’s finding that the Applicant would not on account of the Iranian dress code face harm;
f.The Tribunal failed to engage with the harm which the Applicant would suffer, as a matter of non-refoulement or more generally, on account of the Iranian dress code as described in the country information
Applicant’s submissions
In her counsel’s written submissions, the applicant submits as follows:
(a)Although a woman’s being escorted to a police station and, when at the police station, being asked to have a family member bring acceptable hijab after which the woman could leave without sanction (hijab sanction), may not amount to formal punishment, it constitutes a form of adverse attention from the authorities.[41]
(b)The applicant’s refusal to accept the Iranian dress code is, contrary to the Tribunal’s reasoning, capable of giving rise to “serious harm” or “significant harm” such as would support a claim for protection (PV harm).[42] (This submission implies the Tribunal did not consider whether the hijab sanction was capable of amounting to PV harm.)
(c)Even if the Tribunal considered whether the hijab sanction constituted PV harm and concluded it did not amount to PV harm, the Tribunal was bound, but failed, to consider whether the hijab sanction amounted to harm that did not amount to PV harm (non PV harm).[43] The applicant relies on the judgment of Robertson J in Goundar v Minister for Immigration and Border Protection, and in particular to the following paragraph from his Honour’s judgment:[44]
The error was in proceeding on the basis that the circumstances the subject of the applicant’s representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4)
(d)To the extent the Tribunal considered the applicant would ultimately submit to the Iranian dress code that would not be an answer to a PV claim.[45]
[41] Submissions for the Applicant, [18]
[42] Submissions for the Applicant, [21]
[43] Submissions for the Applicant, [20], [25]
[44] Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, at [53]
[45] Submissions for the Applicant, [22]
In oral address, counsel for the applicant submitted that the claims she made based on Iran’s dress code regulation were not confined to PV harm; they extended to non PV harm. Counsel submitted the Tribunal ought to have considered, but it did not consider, non-PV harm.
Minister’s submissions
The Minister, in his written submissions, submits as follows:
(a)The Tribunal’s finding that the applicant would not be subjected to serious harm in Iran if she does not adhere to the dress code was a finding that was reasonably open to the Tribunal; and it is plain the Tribunal gave genuine consideration to whether the applicant did face the risk of such harm.[46]
(b)The Tribunal’s reasoning was predicated on the applicant electing not to comply with the dress code. The Tribunal, therefore, did not make the error the Refugee Review Tribunal made in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[47]
(c)The applicant has not stated as a ground of application the contention that the Tribunal was bound to, but failed to consider a claim that the applicant would face the risk of non PV harm in Iran because she will not adhere to the dress code. In any event, the Tribunal did consider what would happen to the applicant if she refuses to comply with the dress code. The Tribunal did not proceed, as Robertson J found in Gounda the decision maker proceeded, on the basis that it was unnecessary to consider a particular claim that would be assessed by another process.[48] The Tribunal was “clearly cognisant of the [applicant’s] claim and, for that reason, it should be inferred that “the consequence to the applicant should she fail to adhere to the dress code was a matter that the Tribunal into account in deciding how to exercise the discretion”.
[46] First Respondent’s Outline of Submissions, [18]-[21]
[47] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; First Respondent’s Outline of Submissions, [23]
[48] First Respondent’s Outline of Submissions, [25]
In his oral submissions, Mr Gao, who appeared for the Minister, submitted that the applicant claimed that her life would be in danger if she returned to Iran because she would refuse to wear the hijab. In other words, the applicant claimed that she would suffer PV harm.
Determination
The determination of the ground largely turns on identifying the claims the applicant made in relation to the Iranian dress code, and whether the Tribunal considered that claim.
In the applicant’s agent’s written submissions to the Tribunal, the agent identified the applicant as being a member of a particular social group, namely, “women from Iran not willing to observe Islamic clothing”; and the agent in his submissions identified this as one of the three “following elements of the refugee convention”.[49] The basis of this submission was the claim the applicant made in her statement that was submitted to the Tribunal, that “my life is in serious danger in Iran firstly because Iran is a[n] Islamic country I have to wear Hijab but I don't want to do that and I can’t do that I have to completely change myself which I can’t even imagine so I can't live there because if police or any other government organisation arrest me without Hijab my life will be in danger I won’t be alive anymore”. [50]
[49] CB347
[50] CB351
The Tribunal considered this claim. It did so by identifying and reproducing in its reasons for decision the country information on which it relied. It concluded on the basis of that country information that only 25 per cent of Iranians now support the hijab, and that women would rarely be punished for contraventions of the rules around the hijab.[51] That was a finding that was open to the Tribunal to make on the basis of the country information it identified in its reasons. Having made that finding, the Tribunal considered whether the applicant would face the serious or significant harm she claimed she would suffer in Iran – danger to her life – if she were to return to Iran and refuses to wear the hijab, as she claimed she would; and the Tribunal determined that the applicant would not face the risk of the harm the applicant claimed she would face. That was a finding that was open to the Tribunal to make, given the finding it made on the basis of the country information the Tribunal identified. The Tribunal did not assess the claim on the basis that the applicant could avoid harm by deciding to wear the hijab.
[51] CB391, [134]
It is the case that the Tribunal did not expressly consider whether the hijab sanction constituted non PV harm, that is, harm that was less than the harm the applicant claimed she risked facing in Iran (danger to her life) if she were to refuse to wear the hijab. I am not prepared to infer, however, that the Tribunal did not consider the applicant’s being exposed to the hijab sanction to be a harm to the applicant, or that it considered that such harm was irrelevant to the exercise of the discretion under s 109(1) of the Act to cancel the applicant’s Protection visa. Given the Tribunal set out country information that identified the hijab sanction, the Tribunal was aware that if the applicant returned to Iran and refused to wear the hijab the applicant would be exposed to the risk of the hijab sanction. The more probable inference that is available to be drawn is, and I find, that the Tribunal considered the applicant’s being exposed to the risk of the hijab sanction together with the other matters it considered when determining whether to exercise the discretion in favour of cancelling the applicant’s Protection visa. The Tribunal did not, in terms, address the question whether, assuming the applicant’s exposure to the risk of the hijab sanction was a non PV harm, such harm nevertheless is relevant to the exercise of the power under s 109 of the Act; and the Tribunal did not do so, not because it considered this to be irrelevant, but because the applicant made no claim that was expressed in those terms.
The Tribunal’s reasoning is to be contrasted with the reasoning of the decision maker in Goundar. In that case the Minister considered that the applicant’s claims based on Australia’s non-refoulement obligation was not relevant to the exercise of the power conferred by s 501CA(4)(b)(ii) of the Act to revoke the cancellation of a visa made under 501(3A) of the Act. Robertson J held that was an error of law:[52]
The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa. This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant’s representations referred. The Minister did not presently consider the applicant’s representation as to the claimed risk of retribution and risk to his safety because of the view the Minister took or the assumption the Minister made. The error was in proceeding on the basis that the circumstances the subject of the applicant’s representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under 501CA(4).
[52] Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, at [53]
The Tribunal in the case before me did not reason in this way.
DISPOSITION AND COSTS
I will order that the application be dismissed. I will also order that the Minister’s name be changed to its current description.
The parties agreed that costs should follow the event. The Minister submitted he seeks costs in the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth). That amount is $7,853. I will also order that the applicant pay the Minister’s costs set in the amount of $7,853.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 17 May 2023
0
3
0