FEDERAL COURT OF AUSTRALIA

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022

MIGRATION – Privative clause decision – errors by the Refugee Review Tribunal in determining whether the applicant was a member of a particular social group and in addressing important elements of the applicant’s claim – decision validated by s 474 of the Migration Act 1958 (Cth) – application dismissed.

SDAV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

S 108 of 2002

von DOUSSA J

ADELAIDE

26 AUGUST 2002

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the RRT) given on 18 March 2002 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the applicant and her two infant children protection visas under the Migration Act 1958 (Cth) (the Act).  The applicant claimed that she is a “refugee” within the meaning of the Refugees Convention as amended by the Refugees Protocol as those expressions are defined in s 5(1) of the Act.  Article 1A(2) of the Refugees Convention defines a refugee as a person who:

“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

2                     The success of the visa applications depended on the assessment of the position of the applicant mother.  No separate claims were made in respect of either of the children.  Under the criteria for the grant of a protection visa in respect of visa applicants who are members of the same family unit, it is enough if one family member is a refugee to whom Australia has protection obligations.  The RRT, in its reasons for decision, considered the position of the mother.  Arguments presented on the hearing of this application have also been directed solely to her position and for this reason I make no specific mention of the position of the children in my consideration of the application.

3                     The decision of the RRT is a “privative clause decision” within the meaning of s 474(2) of the Act.  Section 474(1) provides:

“(1)      A privative clause decision:

(a)               is final and conclusive;  and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court;  and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

4                     This case was argued before the decision of a Full Court of this Court in NAAV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (NAAV) was handed down on 15 August 2002.  Counsel for the Minister argues that s 474(1) must be construed according to the principles stated by Dixon J in R v Hickman;  Ex parte Fox and Clinton (1945) 70 CLR 598 at 615.  Counsel contended that, in accordance with those principles, the effect of s 474(1) is to extend the power of the relevant decision-maker, in this case the RRT, in such a way that the lawfulness of any decision made is beyond question, provided its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the RRT.  These three provisos are conveniently referred to as the Hickman provisos. 

5                     Counsel for the applicant conceded that the decision of the RRT is a privative clause decision.  Counsel also conceded that none of the three Hickman provisos has application in this case.  However, counsel contended that as a matter of construction, s 474(1) does not operate so as to protect a decision of the RRT from invalidity where the RRT has acted in excess of jurisdiction, or where the RRT has made a jurisdictional error of the kind described by the High Court in Craig v The State of South Australia (1995) 184 CLR 163 at 179.  It is contended that such an error occurred in this case.  It will be necessary in due course to return to consider the application of s 474(1). 

6                     The applicant arrived in Australia on 13 April 2001.  She is a citizen of Iran.  On 6 July 2001 the application for protection visas was lodged.  The application was refused by a delegate of the Minister on 17 September 2001.  That led to the application for review by the RRT. 

7                     The RRT in substance accepted the factual assertions made by the applicant in support of her claims.  Much detail was given by the applicant which it is unnecessary now to repeat.  The RRT identified within that information three grounds on which the applicant asserted that she had a well-founded fear of persecution for a Convention reason in Iran.  The RRT was not satisfied that on any of these grounds the applicant had such a fear. 

8                     The applicant now accepts the RRT’s decision on two of those grounds.  The first concerned an interest which she said the Iranian authorities had showed in her for a time arising from her family’s association with a man named Ali Reza who at one time had studied atomic energy in Moscow.  The other matter concerned a complaint which she made about difficulties she would encounter in changing her religion.  There is no need to say more about either of these matters. 

9                     The third and principal ground upon which the applicant asserted that she was a refugee related to discrimination which she had experienced, and which she feared in the future, as a woman who had suffered domestic violence in the course of her marriage, and who desired to live apart from her husband and obtain a divorce.

10                  The RRT accepted the following information supplied by the applicant either on oath at a hearing or in written statements.  She was born on 22 April 1968.  She was married in about 1987 or 1988.  It was an arranged marriage.  It was not a happy one.  She was subject to physical and psychological abuse by her husband.  Her oral evidence included complaints that she was “raped” by her husband.  The RRT made no express finding on this allegation, but by implication her evidence in this regard was accepted.  She said her eldest son was also subjected to physical assault by the husband.

11                  The applicant said she was also mistreated by her husband’s employer.  The employer would send her husband to other places to work, and whilst her husband was away, the employer had attempted to sexually abuse her on a number of occasions, succeeding in raping her on two occasions.  The applicant made two complaints to the Monkerat (the Iranian authorities) about the employer.  On one occasion the applicant’s husband forced her to withdraw the complaint.  On the second occasion the employer bribed the officials to prevent the complaint going any further.  In making these complaints to the Monkerat the applicant did not mention that the harassment had proceeded to the point of rape as she feared that such an allegation could lead to her being accused of adultery and stoned.  The applicant had obtained qualifications as a nurse, and for a time had worked as a teacher.  From 1996 until January 2000 she worked as a computer operator but then had to leave work to look after her youngest child.  At about this time she went to live with her parents and her husband went to live with his parents.  The applicant was anxious to separate from her husband and to leave Iran which she did in January 2001.  She said she left without the permission of her husband.  It was necessary for her to arrange for a smuggler to bribe a passports officer to include her youngest child on her passport, this also being done without her husband’s knowledge or consent. 

12                  The applicant gave extensive detail of abuse she received from her husband and her husband’s employer, and discrimination which she had either experienced or feared in her dealings with the authorities and the legal system.  She said that she was unable to obtain protection from the authorities in relation to the sexual harassment she had experienced.  She was concerned that if she divorced her husband she would lose custody of her children by virtue of a presumption that fathers are entitled to child custody, and because of discriminatory treatment received by women in the Iranian judicial system where their oath is worth only one half of that of a man.  She said that if she were to return to Iran she would face social and family discrimination and harassment because of the failure of her marriage and because she had left without permission.  She was also fearful that the authorities would take action against her for having her younger child included in her passport by paying a bribe, and leaving the country without the requisite permission from her husband.

13                  There was considerable country information before the RRT concerning discrimination experienced by women under the Islamic laws in Iran, and in the judicial system.  That information included reports from the US State Department that:

“Violence against women occurs, and women face legal and societal discrimination.”

“It is difficult for many women to obtain legal redress.  A women’s testimony in court is worth only half that of a man’s, making it difficult for a women to prove a case against a male defendant.”

“The government does discriminate on the basis of religion and sex.”

“The State enforces gender segregation in most public spaces, and prohibits women mixing openly with unmarried men or men not related to them.  Women must ride in a reserved section on public buses and enter public buildings, universities, and airports through separate entrances.  Women are prohibited from attending male sporting events, although this restriction does not appear to be enforced universally.  While the enforcement of a conservative Islamic dress codes has varied with the political climate since the death of Ayatollah Khomeini in 1989, what women wear in public is not entirely a matter of personal choice.  Women are subject to harassment by the authorities if their dress or behaviour is considered inappropriate, and may be sentenced to flogging or imprisonment for such violations.”

And from a Middle East News Agency report dated 8 May 2001:

“The Islamic laws in Iran are strongly male-orientated, giving men almost unlimited control over their spouses.  Men can divorce their wives and take custody of the children, while women are deprived of this legal option except in special, limited cases determined by the family court.  Although women are commonly subject to physical abuse at the hands of their husbands, they seldom report instances to the police.  Courts and the police generally encourage abused women to settle the matter domestically with their husbands."

Certain of the reports containing country information suggested that in more recent times steps are being taken to improve the situation of women in Iran, but the balance of the country information described a situation of wide spread persistent discrimination of the kind described in the above quotations.

14                  Before the RRT the applicant contended that she was a member of a “particular social group” and that for reason of that membership she had a well-founded fear of being persecuted if she were to return to Iran.  With the assistance of a migration agent, the applicant argued that she belonged to the following particular social groups:

·                    Iranian women who have transgressed the social mores of Iranian society;

·                    Iranian women who have transgressed the religious tenants and/or social mores of fundamentalist Islamic society;

·                    Iranian women who reject fundamentalist Islam;

·                    Single mothers in Iran; 

·                    Divorced women in Iran and/or women subject to domestic violence in Iran.

15                  The RRT found that it was “unable to be satisfied” that women in Iran, whether married, single or divorced, with or without children, share a “characteristic or element which unites them and distinguishes them from society at large”, or that they are cognisable groups within their society identifiable as a social unit.  The RRT also concluded that it was unable to be satisfied on the information before it that the other suggested particular social groups formed cognisable groups within Iranian society or that they were identifiable as social units.  The submission that the applicant belonged to a particular social group comprising “women subjected to domestic violence in Iran” was rejected on the ground that such a particular social group was united only by a common fear of violence from their husbands (or other male relatives) and for this reason could not be a particular social group within the meaning of the Convention:  Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331.

16                  The RRT’s decision was handed down before the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Khawar [2002] 76 ALJR 667.  In that case the respondent, a citizen of Pakistan, claimed that she had been the target of domestic violence at the hands of her husband, his brother and, to a limited extent, their family.  She claimed that she had been to the Pakistani police on four occasions and on each occasion the authorities took no action against her husband.  The RRT in considering her case failed to determine whether she was a member of a particular social group.  In the High Court, Gleeson CJ said at [32] and [35]:

“In my view, it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are a particular social group.

…

Women in any society are a distinct and recognisable group;  and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.  Neither the conduct of those who perpetrate domestic violence, or of those who withhold the protection of the law from victims of domestic violence, identifies women as a group.  Women would still constitute a social group if such violence were to disappear entirely.  The alleged persecution does not define the group.”

17                  McHugh and Gummow JJ at [81] – [83] said:

“It was open to the Tribunal on the material before it to determine that there was a social group in Pakistan comprising, at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by the members of the household.  Other formulations have been referred to earlier in these reasons and nothing said here is intended to foreclose a finding that a group so defined existed.  This is a matter for the Tribunal on reconsideration of the case.

It may be that the members of a group under any of the above formulations are very numerous.  However, the inclusion of race, religion and nationality in the Convention definition shows that that of itself can be no objection to the definition of such a class.  Applicant A establishes that disagreement with a law of general application and fear of the consequences of the failure to abide by that law does not, on that account, constitute the persons in question a social group within the meaning of the Convention definition.  That has no bearing upon the present case.  Nor does the proposition, which also is to be derived from Applicant A, that ordinarily the enforcement of a generally applicable criminal law will not constitute persecution of a social group constituted by those against whom that law is enforced. 

Applicant A indicates that the particular social group cannot be defined solely by the fact that its members face a particular form of persecution so that the finding of membership of the group is dictated by the finding of persecution.  Those considerations do not control the present case.  The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships.  The alleged systemic failure of enforcement of the criminal law in certain situations does not dictate the finding of membership of a particular social group.”

18                  In light of the decision in Khawar, the acceptance of the applicant’s account of domestic abuse and lack of police protection which she had experienced in Iran and the country information before the RRT, the finding that the applicant did not belong to a particular social group is plainly wrong in law. 

19                  Counsel for the applicant did not contend that the first three social groups which were suggested as relevant to the RRT have any further relevance to the case.  Of the other suggested groups, that which is most relevant to the situation of the applicant is that of women subjected to domestic violence in Iran, or perhaps one more narrowly defined as married women with infant children subjected to domestic abuse in Iran. 

20                  Although the RRT concluded that the applicant was not a member of any of the suggested particular social groups, it went on to consider whether the ill treatment suffered by the applicant in the past, and the harm which she feared in the future was because she is a woman, or because she had the defining characteristics of one of the other social groups suggested.  The RRT concluded that her fear was not for any of those reasons.  In respect of her fear of ill treatment at the hands of her husband, the RRT concluded that her husband abused her for a range of reasons which angered him which were unrelated to her membership of a particular social group.  In the case of the mistreatment by the husband’s employer, the RRT concluded that the employer’s conduct was not because the employees’ wives whom he abused were members of a particular social group, but because he was a man who took advantage of his position of power in relation to his employees to impose himself on their wives.  With respect to the RRT, these findings indicate a misunderstanding of the claim which was being advanced by the applicant, namely a claim that she could not obtain appropriate State protection from mistreatment by her husband and her employer.  The motives which caused the husband and the employer to mistreat the applicant were irrelevant to this claim. 

21                  As a further alternative basis to its decision, the RRT continued:

“Whilst I have concluded that the applicant’s husband’s violence towards her was not for a Convention reason, there may be circumstances where a State’s failure to protect a person from private harm might itself be persecution in the relevant sense if that failure involves systematic and discriminatory conduct that is essentially and significantly attributable to one of the Convention reasons.”

The RRT then discussed the applicant’s evidence about her attempts to obtain assistance from the authorities, noting that on one occasion the applicant said she withdrew her complaint and on the other she said no action was taken because the husband’s employer paid a bribe to the authorities.  The RRT considered that this evidence did not suggest that the authorities were unable or unwilling to protect her because of her race, religion, her membership of a particular social group or her political opinion.  The discussion of the RRT on this issue, in my opinion, indicates a failure on its part to recognise the relevance of the applicant’s evidence to her wider overarching claim that the State protection offered through the agencies of the authorities and the law failed to protect women in her position, as a social group, from abuse by their husbands and other males with whom they had contact by reason of their domestic situations.  The RRT failed to properly address a central element of the applicant’s claim.

22                  The RRT also dismissed as relevant to the applicant’s claims her evidence as to the difficulties she would experience, and feared, in relation to obtaining a divorce and custody of her children on the ground that these difficulties do not amount to persecution for a Convention reason.  Again, in my opinion, the RRT’s reasoning and conclusion on these issues indicates a failure to address the substance of the claim, namely that by reason of her membership of a particular social group, she would suffer serious discrimination under the Iranian legal system. 

23                  Counsel for the applicant contends that the RRT also fell into error by failing to address the question which arises from the second limb of the definition of a refugee in Article 1A(2) of the Refugees Convention, namely whether the applicant was “unwilling” to return to the country of her nationality.  In my opinion the Tribunal did not fall into error in concentrating its attention on the question whether the applicant had a well-founded fear for a Convention reason.  It was plain from the applicant’s claims that she was unwilling to return to Iran.  That was not an issue.  The question was whether her unwillingness was due to a well-founded fear of persecution.  Unless her continuing fear which was the reason for her unwillingness to return was “well founded” at the time of the RRT’s decision, she did not come within the scope of the definition of refugee.  An unwillingness based on an historic fear is not sufficient.  There must be a current well founded fear:  SCAM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 964. 

24                  The errors of law by the RRT in its consideration of whether the applicant belonged to a particular social group, and its failure to address important elements of the applicant’s claims, are jurisdictional errors of law of the kind identified in Craig v The State of South Australia (1995) 184 CLR 163 at 176, 178 – 179.  Section 474(1) apart, these errors would invalidate the Tribunal’s decision and entitle the applicant to relief by way of judicial review on application under s 39B of the Judiciary Act (Cth).

25                  The present application is, however, governed by the provisions of the new Part 8 of the Act, and in particular by s 474(1). 

26                  A Full Court of this Court has by a majority held in NAAV that s 474(1) of the Act has the effect of widening the authority and powers of the RRT in such a way that the lawfulness of any decision it makes is beyond question provided the three Hickman provisos are fulfilled – so long as “its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body”. 

27                  As indicated at the outset of these reasons, it is conceded on the applicant’s behalf that none of the three Hickman provisos applies.  In my opinion that concession was rightly made.  The authority and powers of the RRT to exercise the review function vested in it under s 414 of the Act were duly invoked as there was a valid application made to the RRT for review in respect of an RRT-reviewable decision.  Whilst the applicant has demonstrated errors in the reasoning of the RRT, those errors do not indicate that the decision was made otherwise than in a bona fide attempt to exercise the power of review.  The decision plainly relates to the subject matter of the legislation and it was made in reference to the power given to the RRT to determine an application for a protection visa.  As the decision under challenge is a privative clause decision, it is validated, notwithstanding the errors identified in the RRT’s reasoning. 

28                  Counsel for the applicant sought to rely on the decision in SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 565.  In that matter the RRT had failed to consider the possibility that the applicant could be a member of a particular social group which might be either women in Iran or divorced women in Iran.  The trial Judge held that the failure to consider this issue constituted a fundamental error of law because the failure demonstrated that the essential issue for determination by the RRT had not been considered.  The trial Judge held that the failure to determine this question was fundamental because it was an essential pre-condition to the performance by the Minister of the duty under s 65 of the Act to consider the criteria for the grant of a protection visa.  As that question had not been addressed, it was held that the protection afforded by s 474(1) was not available:  see [43] and [47]. 

29                  For reasons that I gave in my judgment in NAAV at [639], I am unable to agree with the conclusion that the RRT’s decision was not validated by s 474(1).  In my opinion the decision in SBBK is not consistent with the reasoning of the majority of the Court in NAAV.  See also NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 per Allsop J at [60]. 

30                  In my opinion this application must be dismissed.  In accordance with the normal practice that costs follow the outcome of the proceedings, the applicant should pay the respondent’s costs. 

Associate:

Dated:              26 August 2002