DUP16 v Minister for Immigration
[2019] FCCA 2710
•26 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUP16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2710 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – refusal of Protection Visa – citizen of Iran – mother of two daughters granted Protection Visas – whether failure to consider claim – whether failure to ask right question – whether irrelevant consideration taken into account – whether finding open on the evidence – whether failure to consider whether applicant met particular criteria – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.5H, 5J, 36, 46A, 197C, 198, 473CA, 473CB, 473DA, 473CC, 473GA, 473GB, 476 Migration Regulations 1994 (Cth), regs.1.05A, 1.12, sch.2, cl.866.211 |
| Cases cited: Algama v Minister for Immigration & Multicultural Affairs [2001] FCAFC 1884; (2001) 115 FCR 253; (2001) 194 ALR 37 Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 |
| Applicant: | DUP16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 604 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Perth via video-link to Sydney |
| Delivered on: | 26 September 2019 (and delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr M Guo |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the originating application, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 604 of 2016
| DUP16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, by way of filing an application on 9 December 2016 and an amended application on 28 March 2018 (“Judicial Review Application”) seeks judicial review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 19 October 2017. The IAA Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to not grant the applicant a Safe Haven Enterprise visa (“SHEV”). The IAA Decision appears at Court Book (“CB”) 243-255, marked as Exhibit 1.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is an Iranian citizen who arrived in Australia as an unauthorised maritime arrival on 29 September 2012: CB 1-20;
b)on 1 December 2015 the Minister “lifted the bar” pursuant to s.46A of the Migration Act and invited the applicant to apply for the SHEV: CB 44-49;
c)on 18 February 2016 the applicant lodged a SHEV application where she raised the following claims:
i)she did not suffer any particular problems until her daughter started university in October 2009, and a man (whom she named) that belonged to an Arab tribe known as the Savari Tribe was interested in her: CB 112;
ii)the man and his tribe proposed to her daughter and she did not agree to the marriage as she did not love him and she did not want to marry an Arab because her daughter knew they had no respect for women, treated women like slaves and the applicant agreed with her daughter and respected her decision: CB 112;
iii)around March 2012, six Arab men from the Savari tribe came to the applicant’s house and asked her and her husband to "give" their daughter to them to marry their son, and because they did not agree to this marriage, the whole family and in particular their daughter, who often came home trembling in fear, started to receive threats and harassments: CB 112;
iv)around June 2012 a customer of Arab ethnicity came to the applicant’s hairdressing salon and demanded that she do her hair for her but as the applicant was the manager she said the girls (assumedly employees) could look after her to which the customer became angry and abusive and said that she belonged to the Savari family and that the applicant better watch out because worse things would happen to her: CB 112;
v)following this her salon was vandalised and windows were smashed though when she reported this to the police because there were no witnesses, the report did not get anywhere, but she knew this was a targeted attack because nothing was stolen from the salon and the family did not have any other enemies: CB 113;
vi)one night in July 2012 some men came to the applicant’s house and knocked really loud, were shouting and asking for the door to be opened and while the applicant and her daughters ignored this, there were gun shots and then their harassers left, and a few weeks later, the family car was attacked and smashed by the Savari tribe: CB 113
vii)before leaving Iran, the applicant received a phone call at her workplace asking her to give them her daughter or else suffer the consequences, including that they would kidnap the girls (including therefore the applicant’s second daughter), throw acid on their face and rape them and having heard of many stories where girls had escaped similar circumstances when they were located and killed by the Arab tribes she felt she had to leave with her daughters: CB 114;
viii)since departing Iran, the man and members of his tribe had gone to the applicant’s house looking for them, they told her husband they wouldn't leave him alone until they find them, thus forcing her husband to move house which he was again required to do to avoid being harassed and threatened any further: CB 114;
ix)since coming to Australia the applicant has met many nice people who are Christians and she has begun bible study with a friend, has gone to church “3-4 times” and goes to another friend’s house every Friday where everyone prays together, but if she is returned to Iran then Iranian authorities will accuse her of converting to Christianity which is something that is punishable by death, and “in Iran no one dares to change his or her religion because of the punishment”: CB 114; and
x)she could never get protection from the police because it is her word against a tribe's word and as a woman she is worried that she will not be valued and listened to as she has lesser rights than men, so if the authorities assume she is Christian, they will punish her for being an apostate: CB 114;
d)on 12 July 2016 the applicant attended an interview with the Delegate, and on 29 July 2016 the applicant’s representative forwarded various documents and information to the Delegate for consideration: CB 133 and CB 162-172;
e)on 5 August 2016 the Delegate’s Decision was to refuse to grant the applicant a SHEV, and in accordance with s.473CA of the Migration Act the applicants SHEV application was referred to the IAA for review: CB 175-206;
f)on 31 August 2016 the applicant’s representative forwarded written submissions to the IAA for consideration: CB 227-230; and
g)on 11 November 2016 the IAA Decision was to affirm the Delegate’s Decision not to grant the applicant a SHEV: CB 240.
The Court notes that the applicant applied for her SHEV on the same day and raising very similar claims to her two daughters, though each lodged their own individual application. The same Delegate determined the applicant and her two daughters’ SHEV applications, and the same IAA member determined their respective SHEV applications. The applicant’s two daughters filed applications for judicial review on the same day as the applicant, however, in relation to the two daughter’s judicial review applications the Minister conceded that the IAA fell into jurisdictional error and the Court made orders by consent remitting those two matters to the IAA for reconsideration according to law. The Minister did not concede the IAA fell into error in the applicant’s circumstances, and the Court notes this was because the claim which the Minister conceded the IAA had overlooked in the two daughter’s judicial review applications was not one the applicant had raised.
IAA Decision
In the IAA Decision, the IAA:
a)confirmed it had regard to the material referred pursuant to s.473CB of the Migration Act, and the submissions forwarded by the applicant’s representative and received on 30 August 2016 including the disagreements with the Delegate’s Decision and the certificates of baptism of the applicant and her two daughters dated 21 August 2016 were accepted as “new information” that could not have been before the Delegate and related to a material change to the applicant’s personal circumstances therefore there were “exceptional circumstances” to justify consideration by the IAA when determining the applicant’s SHEV application: CB 244 at [3]-[4];
b)summarised the applicant’s claims broadly as a fear of harm from Iranian authorities due to her gender, her being possibly perceived as a Christian, and from her daughter’s rejected marriage suitor and his family and tribe, while also summarising specific events the applicant raised in the SHEV application: CB 244 at [1] and CB 244-245 at [5];
c)identified the provisions of the Migration Act under which the IAA was required to assess the applicant’s claims: CB 245-246 at [6]-[7], CB 249 at [24]-[25] and CB 252-255;
d)accepted the applicant and her family were subjected to threats of harm following the rejected marriage proposal, however, noted that country information did not support the applicant’s claim she could not go to the authorities as the Savari tribe were well connected and powerful, and therefore did not accept the applicant’s claim she could not go to the authorities for assistance: CB 246 at [9];
e)accepted the vandalism of the applicant’s salon may have occurred, however, the speculative nature and the lack of evidence do not support her claim it was the Savari tribe who were responsible: CB 246 at [10];
f)did not accept the applicant’s husband moved house because of the harassment from members of the Savari tribe as the applicant remained in the house from the time the threats began until her departure in 2012 and went about her daily life “without any issues”, thus the Tribunal was not satisfied the applicant faced a real chance of harm from the Savari tribe over four years later: CB 256 at [10];
g)accepted that Iran is a heavily patriarchal society, and that penal and civil codes do discriminate against women, and that domestic violence experienced by women was as high as 66% in the country, however, noted that the applicant’s own evidence that she went to the police who investigated the damage to her salon reflects that a woman can seek the protection of the State, while the country information suggests the government has introduced positive measures to increase female participation and rights in ministries and organisations and special funds have been created to allow female victims of violence access to rights protection: CB 246-247 at [11]-[12];
h)accepted that the applicant does not want to have to cover her hair and that she would like to wear nail polish but is prohibited, and would be imprisoned if she did and noted that though the applicant never indicated that if she were to return to Iran she would contravene the “dress code,” if she does so it found the applicant having to conform with the “dress code” does not amount to serious harm, and her treatment as a result of her gender is not of a nature that amounts to serious harm: CB 247 at [13];
i)accepted the applicant’s claims that she has Christian friends and has attended Christian church services in Australia, and further accepted that the applicant may be perceived to be Christian from having attended Christian church services and her two daughters having been baptised: CB 247 at [14];
j)noted that while there is a death penalty in Iran the last case whereby a religious convert has been sentenced to death was 1990, and the latest case of a convert being charged with “apostasy” was 2009, and those charges were overturned: CB 247 at [15];
k)addressed the applicant’s claims she faces a real risk and real chance of being interrogated if she is forcibly returned to Iran, and that she would likely expose the fact that she and her daughters had partaken in Christian activities while in Australia, in finding that the applicant did not have a real risk or a real chance she will not be forcibly returned to Iran in the reasonably foreseeable future as the country information suggests Iran does not accept involuntary returnees and will not issue travel documents to an Iranian whom a foreign government is seeking to return involuntarily: 247-248 at [16];
l)was satisfied that if the applicant returned voluntarily she would not attract much interest from the Iranian authorities - as the country information indicates – and particularly so where she departed Iran legally, and no evidence suggests she has become of interest to the Iranian authorities since her departure, and therefore the risk or chance of her being questioned or “interrogated” on return is remote: CB 248 at [17];
m)noted country information indicates that people facing adverse attention from Iranian authorities are those who are active in church activities or proselytising, or have come to the attention of authorities prior to departure, and thus while the applicant may be perceived to be a Christian, there is no evidence to indicate that in Iran she will attend church services, proselytise or evangelise and there is no evidence that she attracted the attention of Iranian authorities while in Iran, and therefore the IAA did not consider that she will face a real chance of persecution from Iranian authorities as a result of her being perceived to be a Christian: CB 248 at [18]-[19];
n)on the evidence before it suggesting that Iranian authorities do not prosecute voluntary returnees because most failed asylum seekers leave Iran legally, and, that from 2013 it has not been a criminal offence for an Iranian to seek asylum in another country, and that around sixty per cent of Iranians who have asylum in other countries travel unhindered between Iran and those other countries, found that that the applicant having not come to the attention of Iranian authorities in the past or having a dissident or activist profile, that there is not a real chance she will be harmed for claiming asylum in Australia, and there is no information to suggest any legislative or social barriers to returnees finding shelter or work in Iran, and she will not face a real chance of persecution as a failed asylum seeker: CB 248-249 at [20]-[21];
o)in relation to the complementary protection criterion found that the applicant would not be exposed to a significant risk of harm on account of her gender or the actions of the Savari tribe if she returned to Iran, and relying on the findings made in relation to the refugee criterion found the applicant would also not face a significant risk of harm for being perceived as a Christian or as a failed asylum seeker: CB 250 at [27]-[30]; and
p)affirmed the Delegate’s Decision not to grant the applicant a SHEV: CB 251.
Judicial Review Application
The applicant filed an amended Judicial Review Application on 28 March 2018 three grounds which are set out below: see [7], [17] and [24]. In addition to the Court Book, marked as Exhibit 1, the Court Books in matters PEG602/2016 and PEG603/2016 were marked as Exhibits 2 and 3 respectively, those being the Court Books in the applicant’s two daughters judicial review applications.
Jurisdictional error required
The legality of the IAA Decision may be affected by jurisdictional error where the IAA identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the IAA’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. The IAA Decision may also be tainted by jurisdictional error where there is a denial of procedural fairness as expressly required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
Ground 1
Ground 1 is as follows:
1. The Second Respondent engaged in jurisdictional error by failing to consider a claim raised by the Applicant, by failing to ask itself the right question or by taking into account an irrelevant consideration.
Particulars
a. The Second Respondent accepted that the Applicant ‘may be perceived to be a Christian as she has attended church services, associated regularly with Christian friends and her two daughters have been baptised.’
a. The Applicant raised a claim that if she was ‘forcibly returned to Iran, there is a real risk and real chance that she will be interrogated by the Iranian authorities’ and that there ‘is a real risk and real chance that any interrogation of the Applicant conducted by the Iranian authorities will expose the fact that her two daughters have converted to Christianity and / or that she has taken part in Christian activities in Australia.’ The Applicant claimed that ‘[s]hould the Iranian authorities become aware of this information, there is a real risk and real chance that [she] will be harmed or mistreated.’
b. The Second Respondent decided not to consider the this claim as the Second Respondent did ‘not accept that there is real chance the applicant would be forcibly returned to Iran in the reasonably foreseeable future’ because ‘Iran says it does not accept involuntary returnees and Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran’.
c. The Second Respondent failed to consider this claim.
d. Further, by focusing on whether there is ‘a real chance the applicant would be forcibly returned to Iran in the reasonably foreseeable future’, the Second Respondent failed to ask itself the correct question, namely whether there was a real chance the Applicant would face serious or significant harm as a perceived Christian or failed Iranian asylum seeker who is forcibly returned to Iran.
e. Further, the likelihood of the Applicant being forcibly removed from Australia to Iran was not a relevant consideration in assessing whether there was a real chance the Applicant would face serious or significant harm as a perceived Christian or failed Iranian asylum seeker being forcibly returned to Iran.
Applicant’s submissions on ground 1
In support of ground 1 the applicant submitted that:
a)the applicant advanced a claim to fear harm because of imputed Christian beliefs if she were to be forcibly returned to Iran as upon any return, the applicant and her daughters would be interrogated and in the course of such interrogation their Christianity might be revealed, leading to serious harm;
b)the IAA did not examine these claims, because it rejected the premise that the women would be forcibly returned on the basis that Iran does not accept involuntary returnees;
c)the manner in which the IAA declined to deal with these claims is novel and was not permitted by statute;
d)nothing in the Migration Act permitted the IAA to decline to consider claims on the supposed basis that an applicant would not face those circumstances because they could not be forcibly returned to their home countries, because, on a proper construction of the Migration Act, the decision-maker is to assess whether the fear of harm is well-founded should the applicant be returned to his or her home country and there is no room for considering any issue of whether return would be forcible;
e)the words ‘if the person returned to the receiving country’ (s.5J(1)(b) of the Migration Act) do not permit the interposing of a test of whether the return was forcible or voluntary, and that is so as a matter of orthodox statutory interpretation principles, beginning with a consideration of the text itself, and even where one is to resort to context or purpose it still cannot support a different construction as to permit such a construction would result in an absurdity, which orthodox statutory construction suggests is to be avoided;
f)the words ‘being removed from Australia’ (s.36(2)(aa) of the Migration Act) plainly mean removal per se, without regard to whether removal is forcible;
g)section 197C of the Migration Act provides that non-refoulement obligations are irrelevant to the statutory obligation of officers to remove unlawful non-citizens from Australia, and although s.197C of the Migration Act was introduced well after ss.5J and 36 of the Migration Act, if the Migration Act is to be read as a coherent whole, if non-refoulement is unimportant, it follows that Australia may remove an unlawful non-citizen either forcibly or voluntarily, that being so, the next question in the context of assessing a protection claim must necessarily be: given removal, would the person face a well-founded fear? In this way, it can be seen that the nature of a hypothetical removal has no bearing on whether protection visa criteria are met and if the IAA is permitted to interpose the question of whether removal is forcible, claims that may give rise to non-refoulement obligations might never be assessed, which then exposes a person who fails the statutory process to mandatory removal under s.198 of the Migration Act without his or her claim ever having been assessed, and therefore non-refoulement inconsistent with international law, and such a construction is to be avoided if another construction is open; and
h)in determining whether a person meets the protection visa criteria, it is irrelevant to ask whether any removal would be forcible or voluntary, therefore the IAA erred by adopting a test which resulted in the conclusion that it did not have to consider the interrogation-apostacy claims.
Minister’s submissions on ground 1
The Minister’s submissions in response to ground 1 were as follows:
a)the particulars to Ground 1 assert that the IAA accepted that the applicant may be perceived to be a Christian, that the applicant raised a claim that if she was forcibly returned to Iran there was a real risk or real chance that she would be interrogated by the Iranian authorities and that there was a real risk or real chance that any interrogation would expose the fact that her two daughters had converted to Christianity and that she had taken part in Christian activities in Australia, and should the authorities become aware of this information there was a real risk and real chance that she would be harmed or mistreated, and further assert that the IAA decided not to consider this claim as it did not accept that there is a real chance that the applicant would be forcibly returned to Iran in the reasonably foreseeable future because Iran does not accept involuntary returnees and Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily;
b)it is then said that the IAA failed to consider this claim, and failed to ask itself the correct question, whether there was a real chance that the applicant would face serious or significant harm as a perceived Christian or failed Iranian asylum seeker who is forcibly returned to Iran, and that the likelihood of the applicant being forcibly removed from Australia to Iran was not a relevant consideration in assessing her claim;
c)the IAA noted at CB 247-248 at [16] of the IAA Decision that the applicant's representative had made a submission that a claim that was implicit in the material before the Delegate was that should the applicant be forcibly returned to Iran, there is a real risk and real chance that she will be interrogated by the Iranian authorities upon return, a real risk and real chance that any interrogation of the applicant conducted by Iranian authorities will expose the fact that her two daughters have converted to Christianity and/or that she has taken part in Christian activities in Australia, and that should the Iranian authorities become aware of this information, there is a real risk and real chance that the applicant would be harmed or mistreated;
d)the IAA’s Decision at CB 247-248 at [16] goes on to clearly show that it considered this particular claim by the applicant, and its reasons for not accepting the claim do not display any jurisdictional error by reason of failing to ask itself the correct question or by taking into account an irrelevant consideration; and
e)by contrast with the Tribunal in the matter of CLS15 v Federal Circuit Court of Australia [2017] FCA 577 (“CLS15”), the IAA did provide an unambiguous answer to the question whether the applicant could be forcibly returned to Iran at CB 247-248 at [16] of the IAA Decision where the IAA did not accept that there was a real chance that the applicant would be forcibly returned to Iran in the reasonably foreseeable future having regard to information from DFAT. That conclusion was clearly open to the IAA and, accordingly, the fundamental premise of this particular claim by the applicant did not exist, and having reached that unambiguous conclusion the IAA did not need to give further consideration to the applicant's claims.
Consideration of ground 1
Section 5H of the Migration Act relevantly provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Section 5J of the Migration Act relevantly provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
For the purposes of ss.5H and 5J of the Migration Act the applicant’s claim of there being a well-founded fear of persecution was based on a forcible return to Iran, and that claim therefore had to be considered. Accordingly, it was considered by the IAA, with the IAA “not accept[ing] that there is a real chance the applicant would be forcibly returned to Iran in the reasonably foreseeable future”: CB 247-248 at [16].
In CLS 15 at [58] per Charlesworth J the Federal Court observed as follows:
The country information to which the Tribunal referred in its reasons did not permit of any circumstance in which the appellant might be issued valid travel documents so as to enable his forcible return to Iran. If the Tribunal uncritically adopted that portion of the country information, then it would have been unnecessary for it to continue, as it did, to consider the likelihood that the appellant would be persecuted or suffer significant harm “on return to Iran”. The appellant could either be forcibly returned to Iran or he could not. The appellant’s claims, and the evidence before the Tribunal, were such that the Tribunal was obliged not only to consider which scenario would apply, but to supply an unambiguous answer to the question.
In this case the IAA provided an unambiguous answer in finding that there was not a real chance the applicant would be forcibly returned to Iran. Having so answered it was unnecessary for the IAA to go further as the issue of the likelihood of persecution or significant harm on return to Iran does not arise: CLS15 at [58] per Charlesworth J. The fundamental premise underpinning the claim simply does not exist, and the applicant’s claim cannot therefore succeed.
The applicant submits that CLS15 is distinguishable because in that case the Federal Court did not consider the issue of statutory construction put in this case. In the Court’s view CLS15 is not distinguishable: it dealt with the same type of circumstances which have arisen in this case and gave authoritative direction as to how such circumstances ought to be dealt with. The effect of the applicant’s submission is to impermissibly invite this Court to find that an otherwise binding judgment of a superior Court was determined per incuriam: Algama v Minister for Immigration & Multicultural Affairs [2001] FCAFC 1884; (2001) 115 FCR 253; (2001) 194 ALR 37 at [39]-[41] per Whitlam and Katz JJ (French J agreeing at [1]). In any event, the Court does not consider that the applicant’s suggested statutory construction is correct. The question of a real chance of a well-founded fear of persecution only arises “if the person returned to the receiving country”: Migration Act, s.5J(1)(b), and where, as here, the prospect of such a return does not arise in the reasonably foreseeable future there can be no well-founded fear of persecution.
Ground 1 of the Judicial Review Application is not made out, and does not establish jurisdictional error in the IAA Decision.
Ground 2
Ground 2 is as follows:
2. The Second Respondent erred by finding that the Applicant’s salon having been smashed, the family home having been fired upon, her husband’s car being vandalised and the husband’s relocations were unconnected with the fears of harm arising from a rejected marriage proposal, when such finding was not open on the evidence.
Applicant’s submissions on ground 2
In support of ground 2 the applicant submitted that:
a)the IAA’s conclusion of a lack of any causal link between the Savari tribe and specific instances of violence throughout May to August 2012 was one simply not open on the evidence, as explained in Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 (“SZMDS”);
b)the applicant referred to damage to her hair salon, the gun fire at the family home and the car vandalism as having been causally linked with the Savari tribe and its associates, and while she did not know for sure that there was a definite link, her statement accompanying the SHEV application set out the context for her beliefs that they were linked to the Savari tribe including the events happening in the aftermath of several specific encounters in March 2012, April 2012 and May 2012, a further three events occurring between May 2012 and August 2012, their not having ever experienced difficulties previously and an absence of evidence or claim that their home town, was affected by random violence;
c)the IAA rejected that the Savari tribe was causally linked with the salon damage, the gun fire and the car vandalism and any suggestion of a link was ‘speculative’ and there was a ‘lack of evidence’’ and it was important for the IAA to dismiss these incidents, because the IAA concluded that since (on its version of events) the applicant experienced no threats from the Savari tribe between May 2012 and her departure in September 2012, the lapse of time meant she no longer faced ‘a real chance of harm…on return to Iran some four years later’;
d)having accepted that the salon damage, the gun fire and the car vandalism did occur, the IAA was left with two logical options: to conclude that the events were connected, or to conclude that the events were all random acts of violence, however, contrary to the IAA’s assertion that there was a ‘lack of evidence’ about a connection, there was in fact evidence of a connection, the existence of a link arose from the evidence that gave rise to the context, and it was not open for the IAA to conclude that a connection was ‘speculative’;
e)it would have been one thing for the IAA to conclude that any one particular incident was a co-incidence and unrelated to the Savari tribe, but given that the context was left wholly untouched by the IAA, the corollary of the IAA’s conclusion that the incidents were unrelated is that all three incidents were co-incidences even though they befell the applicant in light of specific threats received, and that is a proposition so remarkable and inherently unlikely that it is demonstrative of irrationality and illogicality;
f)in these circumstances, the denial of a link is outside the range of decisions that a logical or rational decision-maker could have made on the same evidence, it was not open on the evidence for the IAA to have found that the incidents were unrelated to the Savari tribe by simply dismissing suggestions of a link as ‘speculative’; and
g)the IAA accepted that the applicant’s husband relocated, but said that it was not because of any reason connected with the Savari tribe, but the difficulty is that it is not possible to rationally and logically reconcile these split conclusions, if the IAA rejected the applicant as an embellisher, then it might be understood how the IAA could accept her husband had relocated several times but simultaneously find that the relocations had nothing to do with the Savari tribe but the IAA did not do this, nor offer any other explanation for its split finding, rather it baldly asserted that it ‘did not accept it was due to harassment from members of the Savari tribe’ and the lack of explanation leaves the reader inferring that the IAA found the father moved for no reason at all, several times but that is an unsatisfactory conclusion because it is inherently irrational.
Minister’s submissions on ground 2
In respect of ground 2 the Minister submitted that:
a)the IAA accepted at CB 246 at [10] that instances the applicant claimed may have occurred, but that given the speculative nature of the claim and the lack of evidence, it did not accept that the Savari tribe were responsible, and while the IAA accepted that the applicant's husband may have moved house, it did not accept that this was due to harassment from members of the Savari tribe seeking the applicant's whereabouts as the applicant remained in Iran at her usual residence from the time the threats commenced until September 2012 and went about her daily activities without any issues, thus it did not accept that she faced a real chance of harm from the Savari tribe more generally on return to Iran some four years later, and these findings were reasonably open to it on the material before it;
b)in asserting that the IAA erred by finding that the matters relied upon by the applicant were unconnected with fears of harm arising from the rejected marriage proposal because such a finding was not open on the evidence, the applicant is in reality seeking to attack the merits of the IAA Decision; and
c)the IAA was therefore not bound to accept that the Savari tribe were responsible for the damage to the applicant's hair salon windows, for men bashing on her front door and firing shots and for her family's car being vandalised, nor was the IAA bound to accept the claim that her husband had moved house due to harassment from members of the Savari tribe, and nor did it have to have rebutting evidence before concluding that it did not accept these assertions by the applicant: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J (“Selvadurai”).
Consideration of ground 2
In considering ground 2 the following propositions are relevant:
a)the IAA was not required to uncritically accept the evidence of the applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 (“Randhawa”), FCR at 451 per Beaumont J;
b)the IAA was not required to have rebutting evidence before it before concluding that it did not accept the applicant’s assertions: Selvadurai at 348 per Heerey J;
c)the Court must consider whether on the basis of probative evidence and material a logical decision-maker could have come to the same conclusion as the IAA: SZMDS at [130]-[131] and [135] per Crennan and Bell JJ;
d)so long as the IAA considered the correct legal question, there is no lawful basis to intervene on a judicial review application merely because this Court does not agree with the factual conclusions reached, that is, this Court is not to engage in merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743 (“Guo”), CLR at 596 per Kirby J.
The IAA was not obliged to accept the applicant’s evidence uncritically: Randhawa, FCR at 451 per Beaumont J, and plainly did not do so, and particularly so here where the evidence of Savari tribe involvement was described as a belief: CB 246 at [10]. There was not a significant body of evidence on which to draw, and in those circumstances the IAA was not incorrect to describe the claim as speculative, and to refer to the lack of evidence in support thereof: CB 246 at [10]. Indeed the applicant’s own submissions acknowledge that the applicant “did not know for sure that there was a definite link”: Applicant’s Written Submissions at [40]. Further, as the IAA observed the applicant “remained … at her usual residence” and “went about her ordinary daily routine without any issues”: CB 246 at [10].
The applicant’s own lack of surety as to a link between the harassment and the Savari tribe, the lack of evidence in relation thereto, and the fact that the applicant did not move and followed her usual routine provided a sufficient basis for the IAA to make the factual conclusions the subject of ground 2. Further, those matters also mean that the conclusions that the IAA reached, and which the applicant now seeks to impugn, were not conclusions which no logical or rational decision-maker could arrive at on the evidence and materials before the IAA: SZMDS at [130]-[131] per Crennan and Bell JJ. For this Court to intervene would see it do no more than re-determine the matter on the facts, contrary to longstanding principle: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Guo, CLR at 596 per Kirby J.
In the above circumstances ground 2 is not made out, and does not establish jurisdictional error in the IAA Decision.
Ground 3
Ground 3 is as follows:
3. The Second Respondent erred by failing to consider whether the Applicant met the criteria in s 36(2)(b)-(c) of the Migration Act 1958 (Cth).
Applicant’s submissions on ground 3
In support of ground 3 the applicant submitted that:
a)section 36(2)(b) and (c) of the Migration Act are alternatives for the grant of a protection visa, requiring only that the applicant be a member of the same family unit of a person who satisfies the refugee or complementary protection provisions, thus the applicant does not need to satisfy the refugee or complementary protection provisions herself;
b)the definition of ‘member of the family unit’ is found in reg.1.12 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) and there is an extended definition of dependency in reg.1.05A(2) of the Migration Regulations, which takes the concept beyond financial dependency to also include substantial (as opposed to total) reliance for ‘psychological or physical support’;
c)it is firmly established that a decision-maker must consider ‘the case raised by the material or evidence before it’, including any aspect that is not explicitly articulated as a distinct ‘claim’: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE (No 2)”) at [58] per Black CJ, French and Selway JJ;
d)the applicant’s claims were similar, and clearly linked with the facts that were experienced by her daughters, and both the Delegate and the IAA must have realised this, because their reasons in respect of the applicant cross-reference the facts provided by her daughters in their respective SHEV applications, further the Delegate invited the women to interviews on the same day and at the same scheduled time, and refused their respective applications on the same day, and the IAA affirmed the refusals within minutes of each other, supporting an inference that it also considered the three applicants together;
e)there was evidence capable of supporting a finding that the applicant and her daughters were members of the same family unit including that the three women all lived together, the daughters did not have any spouse or de facto partner and it can be inferred that the daughters were still dependent on the mother by reason of them travelling to Australia together, living together and being students, thus the basis for assessing s.36(2)(b)-(c) of the Migration Act was therefore clearly ‘apparent on the face of the material’ before the IAA but there is no mention of ss.36(2)(b) or (c) of the Migration Act in the IAA Decision; and
f)the IAA’s obligation under s.473CC of the Migration Act was to ‘review’ the Delegate’s Decision and a component of the Delegate’s Decision was her finding that that there was no ‘member of the same family unit’ claim, hence s.473CC of the Migration Act meant that this finding of the Delegate needed to be reviewed, independently of an obligation of the IAA to approach the underlying facts on a fresh basis, however the IAA did not ‘review’ this aspect of the Delegate’s Decision, not even to simply state agreement with the Delegate.
Minister’s submissions on ground 3
In relation to ground 3 the Minister submitted that:
a)clause 866.211(1) of the Migration Regulations provides that it is a “time of application” criterion that either cl.866.211(2) or (3) of the Migration Regulations is satisfied;
b)cl.866.211(2) of the Migration Regulations refers to an applicant who claims that a criterion in s.36(2)(a) or (aa) of the Migration Act is satisfied, and such a claim was made by the applicant;
c)cl.866.211(3) of the Migration Regulations provides that the applicant "claims to be a member of the same family unit as a person to whom subclause (2) applies, and who is an applicant for a Subclass 866 (Protection) visa”, and in her SHEV application the applicant made no claim to be a member of the same family unit as a person to whom cl.866.211(2) of the Migration Regulations applies, and who is an applicant for a Subclass 866 visa, thus NABE (No.2) has no application where a person has not made a claim of the kind referred to in cl.866.211(3) of the Migration Regulations;
d)further, and in any event, the applicant is not a member of the same family unit of another person, being one of her two daughters, within the definition of "member of the family unit" in reg.1.12(4)(d) of the Migration Regulations, as relied upon by the applicant as reg.1.12(4)(d)(i) of the Migration Regulations refers to a person being a member of the family unit of another person (the family head) if the first person is a relative of the family head, and who "does not have a spouse or de facto partner", and as the applicant has a spouse therefore the applicant cannot be a member of the family unit of whom the family head is one of her two daughters;
e)there was no evidence before the IAA that the applicant was "dependent" on either of her daughters, even taking into account the extended definition of dependency in reg.1.05A(2) of the Migration Regulations; and
f)while in submissions to the IAA the applicant's representative referred to the Delegate's failure to consider a claim implicit in the material before the Delegate, those submissions make no reference to any implicit claim arising on the materials that the applicant was a member of the same family unit as either or both of her daughters, and therefore implicitly claimed to be owed protection obligations pursuant to ss.36(2)(b) or (c) of the Migration Act.
Consideration of ground 3
Section 36(2) (b) and (c) of the Migration Act provide as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
Regulation 1.12(4) of the Migration Regulations provides as follows:
(4) A person is a member of the family unit of another person (the family head ) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
Ground 3 is fundamentally misconceived because the applicant is not, for the reasons set out in the Minister’s submissions, a member of the “same family unit” for the purposes of s.36(2)(b) and (c) of the Migration Act because the applicant does not fall within the definition of “family unit” in reg.1.12(4) of the Migration Regulations. Therefore, even where there was a failure by the IAA to consider such a claim (as appears to have been conceded by the Minister: Transcript, p.22) it could not have succeeded given that the applicant did not fall within the definition of “family unit” in reg.1.12(4) of the Migration Regulations. Thus the failure to consider the family unit claim did not affect, and could not have affected, the IAA Decision to affirm the Delegate’s Decision, and does not constitute jurisdictional error: Yusuf at [80]-[82] per McHugh, Gummow and Hayne JJ.
For the above reasons ground 3 is not made out and does not establish jurisdictional error in the IAA Decision.
Conclusion and orders
The Court has concluded that the applicant has failed to make out any of her three grounds of review and has failed to establish jurisdictional error in the IAA Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
There will also be an order that the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 26 September 2019
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