FEDERAL COURT OF AUSTRALIA

CTY15 v Minister for Immigration and Border Protection [2019] FCA 197

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 23 February 2017 be set aside and in lieu thereof:

(a)    the decision of the Administrative Appeals Tribunal dated 6 November 2015 is set aside and the matter is remitted to the Administrative Appeals Tribunal differently constituted for determination according to law; and

(b)    the first respondent is to pay the appellants’ costs in the proceedings in the Federal Circuit Court of Australia.

3.    The first respondent is to pay the appellants’ costs as agreed or assessed including its costs on the application for an extension of time within which to file a notice of appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The first and second appellants are husband and wife respectively. The third appellant is their son who is in his early 20s. The appellants are citizens of Iran and Shia Muslims who applied for protection visas under s 45 of the Migration Act 1958 (Cth) (the Act).

2    This is an appeal from a judgment of the Federal Circuit Court (FCC) given on 23 February 2017. On 20 November 2017, an extension of time was granted within which to appeal against the FCC decision: CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354. By its decision, the FCC dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 6 November 2015. The Tribunal affirmed the decisions of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant protection visas to the appellants.

3    The notice of appeal identifies one ground of appeal, namely:

1. The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the claims of the second appellant, [the wife], who is an Iranian female and does not wish to abide by the laws of Islam extremism, including the dress code and fears harm as a consequence, including being sprayed in the face with acid.

4    The notice of appeal then sets out various so-called “particulars”, some of which are particulars of ground 1 and some of which appear to raise separate issues. Specifically, they allege that the primary judge erred in failing to hold that the Tribunal had erred:

(1)    in finding that the wife is required, or can be expected, to take reasonable steps to avoid persecutory harm (particulars (f) and (j));

(2)    in finding that there was no “‘country information to indicate that women in Iran are required to wear a chador’, when there was country information before the Tribunal that women are required to adhere to Islamic dress codes” (particulars (g) and (l));

(3)    in finding that the wife has complied with the dress code in the past and would continue to comply (particular (i)); and/or

(4)    in failing to consider whether the laws of Iran concerning the dress code were persecutory (particular (k)).

5    It is not in issue that the appellants did not expressly claim that if the wife returned to Iran she feared harm because she does not wish to abide by the laws of Islamic extremism, including the dress code. The core issue on the appeal is whether a competent Tribunal would have appreciated that this claim was raised implicitly on the material before it so as to require the Tribunal to consider the claim. This issue turns upon the proper construction of the appellants’ claims, the principles being well settled. In order to address this issue therefore, it is necessary to explain the material before the Tribunal in some detail, including the delegate’s decision.

6    For the reasons set out below, I consider that the Tribunal fell into jurisdictional error in failing to consider a claim that arose with sufficient clarity on the material. The appeal must therefore be allowed and the matter remitted to the Tribunal differently constituted, given not only the errors which I have upheld but other concerning aspects of the manner in which the Tribunal dealt with the appellants’ claims.

2.    BACKGROUND

2.1    Relevant statutory framework

7    The Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter and remain in Australia. The Act provides for different classes of visa, one of which is a protection visa under s 36. At the relevant time when the Tribunal made its decision, the Act provided that a protection visa may be granted where the criteria in s 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed because she or he is a refugee as defined in article 1A(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention). Article 1A(2) defines a refugee relevantly as a person who:

… owing to 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 …

8    Further, at the relevant time, by virtue of s 91R(1), the persecution feared must involve “serious harm” to the appellant and systematic and discriminatory conduct. “Serious harm” is defined to include a threat to the person’s life or liberty, or significant physical ill-treatment.

9    A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Tribunal to assess what may occur in the future. A fear is “well-founded” when there is “a real substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real” as opposed to a “remote” chance): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid.

10    Section 36(2)(aa) provides in the alternative for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (the complementary protection criterion), being a person:

… in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

11    “Significant harm” is defined in s 36(2A) to include arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

12    A determination of whether there is a real risk for the purposes of s 36(2)(aa) requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” (as defined in s 36(2A)) if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at [297] and Flick J at [342] relevantly agreed). The objective level of risk of harm required to satisfy the criterion under s 36(2)(aa) is therefore the same as that required by s 36(2)(a) of the Act.

2.2    The application for a protection visa and appellants’ claims

13    I note that I have summarised the appellants’ claims in relatively general terms so as to avoid referring to potentially identifying details.

14    On 3 September 2014, the husband and wife submitted an application for protection visas in which each separately claimed to fear persecution or harm if returned to Iran, supported by statutory declarations from each of them. The wife was also present during her husband’s protection visa interview before the delegate at which she confirmed that there was nothing about her husband’s claims that she wanted to correct. Relevantly, both of them claimed to fear harm as a result of an altercation in 2013 in a park near their home between the husband and two men in plain clothes who approached them about the wife’s manner of dress.

15    Specifically in her statutory declaration, the wife explained that she had gone out with her husband and son to celebrate her son’s birthday when they were approached by strangers who “made a very rude comment about the way I dressed because I didn’t wear my veil properly and because I wore make-up.” She alleged that the strangers then started to beat up her husband but ran away when other people tried to calm them down. She said that it was a very traumatic event for her and her son, and that she did not have a very clear memory of that night because she just tries to forget what happened. She also said that her father-in-law had discovered that these people were connected to the government, and had suggested that they should leave the country to avoid difficulties. She further stated that “[s]ince this incident I was always worried. I always feared that we could get in trouble again. I did not dare to go out without being covered up properly and I was always scared that something bad could happen to us” (emphasis added).

16    In his statutory declaration, the husband gave evidence about the same matters which also underpinned his claims to fear persecution or harm:

5. … I, my wife and my son went out to celebrate my son’s birthday. My wife wore make up and she didn’t cover up with her veil as she would normally do and as she was expected by the authorities.

6. As it was getting dark, we were walking across [a named] Park when we were approached by two men in plain clothes who confronted us about my wife’s outfit. They did not identify themselves as government officials and as they were in plain clothes I thought these are just ordinary people. They were very rude to my wife and I responded to them very angry.

7. I yelled at them I pushed one of the guys. I was very angry but I didn’t realise who I was talking to. If I had known they are from the government I had never pushed them because I know how powerful they are.

8. After I pushed one of these guys they attacked me. At this stage I noticed that they were wearing walkie talkies underneath their clothes and that they must be with the government.

9. All of a sudden three more men arrived at the scene. I don’t know where they came from; I did not see them coming. I don’t even know for sure how many there were. They started to beat me up and I was just holding up my hands over my face and my head trying to protect myself. As far as I remember they did not hold any weapons but they beat me with their hands and they kicked me. I heard my wife screaming and my son crying.

10. At some point some other local people got involved and calmed them down. They managed to stop the fight. I was in a bad state and have no clear memory of the events. All I remember is that someone took me to a nearby clinic. My nose was bleeding and my mouth as [sic] bleeding. I had a lot of bruises to my body.

11. I am not sure who these men were but I am sure that they belonged to the government. They might have been Basij or maybe from Sepah, they did not wear uniforms and did not introduce themselves.

17    The husband said that his father, who had been in the military and is well connected, said that they were from the government, could create a lot of problems for them, and would have the power to take the husband away. The husband said that he feared persecution because he had hit a government official and explained that he considered that it would be easy for the government to find out about him by asking locals. He also gave evidence that “[a]fter this incident my wife did not dare anymore to go out without her veil.”

18    Following an interview with the Department of Immigration and Border Protection (the Department) on 23 September 2014, the appellants who were represented by a registered migration agent provided a written submission dated 14 October 2014 pursuant to an invitation by the delegate to do so. In the written submission, the appellants’ agent outlined their claims as follows:

Our clients fear that if they are forced to return to Iran, they will suffer persecution in the form [of] abduction or arbitrary arrest and detention, imprisonment, physical assault and torture, and possible death, discriminatory denial of state protection, and substantial discrimination amounting to persecution at the hands of the Basij and/or the Iranian authorities on account of either cumulatively or separately:

a)    Their actual and/or imputed political opinion and/or pro-Western political opinion on account of, either jointly or separately:

i)    not complying with religious moral codes imposed by the Iranian regime

ii)    [the husband’s] fight with the Iranian authorities; and

iii)    their presence in Australia.

b)    [The wife’s] membership of a particular social group, “woman in Iran” [sic] and/or “woman [sic] who don’t abide by strict Islamic dress codes.”

c)    Their membership of the particular social group, “returnees from a Western country” and/or “failed asylum seekers returning from a Western country.”

19    The submission also sought to address concerns raised by the case officer and referred to country information about enforcement of the strict Islamic and moral dress code by the Basij, the Guidance Patrol, and a new Social Council within the Ministry of the Interior. That country information was said to indicate that it is entirely reasonable that the husband and wife were approached and harassed on the street. The agent further submitted that:

While there is country information suggesting, “the morality police has evolved to almost exclusively target women”, this does not mean that woman [sic] are not targeted when males are present. Indeed, by targeting women, the punishment faced by [the wife] does not fall under the law of general application, as she is being persecuted as being a member of a particular social group, “women in Iran” and/or “woman who don’t abide by strict Islamic dress codes.”

2.3    The delegate’s decisions

20    By separate decisions given on 7 November 2014, the same delegate refused to grant protection visas to the husband and the wife respectively and therefore to their son. While the delegate assessed the husband’s claim in a separate assessment record, due to the interrelationship between the husband’s and wife’s claims the delegate referred where relevant to findings made in relation to the husband’s claims.

21    Importantly in this regard, the delegate accepted for the purposes of both decisions that the husband was involved in a physical altercation with two men who may be Basij in 2013 but found that he had sustained minor injuries only due to the altercation.

22    In the decision rejecting the husband’s claims, the delegate summarised the husband’s claims, stating among other things that the husband had explained in detail what his wife was wearing at the time of the 2013 incident, namely “tight clothes, a short manteau (overcoat) and had her hijab loose which exposed her hair. She was also wearing makeup.”

23    In the delegate’s reasons for rejecting the wife’s application for a protection visa, the delegate described her evidence about the incident as follows.

The applicant stated during the altercation she was “extremely anxious” and was shouting in fear. She remembers that it occurred on the son’s second birthday while she was walking with her husband and son from her father-in-law’s house to a restaurant to celebrate a son’s birthday. Two men approached her and insulted her due to the way she was dressed, she explained the men insulted her because the buttons of her manteau (overcoat) were undone and it only went to her thigh, her scarf was loose which exposed her hair and she was wearing makeup. The applicant stated this was her usual manner of dress. A fight ensued between her husband and the men; she grabbed her son and tried to protect her son so she did not witness the altercation from a close distance.

When questioned, the applicant stated she does not know how long the fight lasted. I then questioned the applicant if the fight was short or long; the applicant stated she cannot remember. The applicant stated when the fight ended the applicant returned to her parent-in-law’s house while her husband went to a “clinic”. Her husband returned from the clinic a short time later.

The applicant stated after this incident she went out in public less. When she did go out she dressed in accordance with the dress code. The applicant stated she was not arrested in the three and a half months she remained in Iran and nothing adverse happened to her but does not know if her husband was arrested.

(emphasis added)

24    While the delegate found the wife’s account to be lacking in detail, the delegate found that the wife’s answers were sufficiently consistent with her husband’s detailed, spontaneous and forthright evidence to satisfy the delegate that the incident occurred. The delegate was also satisfied that the wife’s claim regarding contravening the dress code and being approached by two men in plain clothes is generally consistent with country information indicating that authorities sporadically attempt to enforce the dress code especially for women and will occasionally arrest and detain a person for violating the dress code.

25    The delegate also accepted that the wife was a member of two particular social groups for the purposes of the Refugee Convention, namely “women in Iran” and “women in Iran that [sic] contravene the Iranian dress code”. The delegate further found that contravening the Iranian moral code is considered a political act in Iran. However, the delegate found that harm feared on account of the wife’s membership of the group “women in Iran that contravene the Iranian dress code” is a law of general application and does not amount to persecution. While the delegate was satisfied that the harm feared by the wife in relation to her membership relevantly of the group “women in Iran” amounted to persecution under the Act, the delegate did not consider on the evidence that there was a real chance the applicant personally would be persecuted because she is a member of that particular social group.

26    The delegate also considered that the applicant did not satisfy the complementary protection criterion in s 36(1)(aa). While the delegate accepted that the country information demonstrates that some women in Iran are harmed for contravening the dress code, including by lashings or various forms of torture, the delegate found that it was more likely that punishment for contravention of the dress code would be in the form of a monetary fine after being arrested. In concluding that the wife did not face a real risk of significant harm for contravening the dress code, the delegate reasoned that:

… I consider it important that in the three months the applicant continued to reside in Iran she purposefully dressed in accordance with the dress code. There is no evidence or reason to indicate the applicant will not continue to dress in accordance with the dress code should she return to Iran. I have considered the… 2013 incident, however I have given greater weight to the applicant’s compliance with the dress code since that time, which will substantially decrease the risk of her being harmed for breaching the dress code. For the same reasons, I am not satisfied the applicant is in breach of the Iranian moral code or that there is a real risk she would face significant harm for this reason. Aside from the 2013 incident the applicant has made no claim to have contravene the moral code and any other way.

The applicant has never been arrested, find or convicted for contravening the dress code. In conjunction with the relatively infrequent use of violence as a form of punishment and her dressing in accordance with the dress code I am not satisfied that the applicant faces a real risk of being physically harmed for contravening the dress code or for failing to comply with moral codes imposed by the Iranian regime in the future.

(emphasis added)

27    (I interpolate to observe that the reasoning in these passages would seem to run counter to the principles explained in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395/2002) which I explain later in my reasons, although only the decision of the Tribunal may be the subject of an application for judicial review.)

2.4    The applications for review of the delegate’s decisions by the Tribunal

28    On 18 November 2014, the husband and wife applied for review of the delegate’s decision by the then Refugee Review Tribunal. By a letter dated 14 August 2015, the Tribunal invited the appellants to attend a hearing on 8 October 2015 and to provide written submissions by 1 October 2015 setting out all claims made and maintained by the appellants. In response, on 5 October 2015, the appellants’ migration agent provided a submission bearing the same date (the October 2015 submission), statements from each of the husband and wife dated 1 October 2015, a response to hearing invitation, and the post-interview submission dated 14 October 2014. In the October 2015 submission, the migration agent stated that the appellants continued to rely on their respective Statutory Declarations, save relevantly for the provision of some new information by the wife in her statement of 1 October 2015.

29    In the October 2015 submission, the agent repeated the claims set out in the written submission dated 14 October 2014 (and quoted above at [18]) save that the appellants included the further claim to fear harm by reason of their actual and/or imputed political opinion and/or pro-Western political opinion on account of, either jointly or separately, “perceived breaches of Islamic conduct”. The agent also updated the country information cited in support of the wife’s claim to fear harm by reason of her membership of the particular social groups “women in Iran” and/or women who don’t abide by strict Islamic dress codes”. In particular, the submission quoted from a report from the Secretary-General of the United Nations in February 2015 commenting on the situation for women in Iran as follows:

On 20 June 2015, the Ministry of the Interior issued a circular in which a new dress code for State and private sector employees was introduced. Women are now required to strictly respect the new dress code and to refrain from wearing jewellery and make-up in offices. Women are required to observe the Islamic dress code in public places. More than 2.9 million women reportedly received a warning for failure to observe the code between March 2013 and March 2014. …

Immodest attire was reportedly the motive for several acid attacks and stabbings in late 2014 by unknown individuals on the ground of preventing vice. The Secretary-General is concerned about the considerable increase in the number of laws and public policies that threaten the universally established standards on the rights of women, including freedom of movement, health and economic activity. The Secretary-General is also concerned at the restrictions imposed on access to justice for women and girls who have been subjected to violence, including marital rape.

(UN General Assembly, Situation of human rights in the Islamic Republic of Iran: Report of the Secretary-General, 31 August 2015, A/70/352 (the UN 2015 Report).)

30    The submission relevantly also referred to a report from Amnesty International from March 2015 commenting on the enforcement of the dress code in Iran and how its strict enforcement has led to an increase in violence against women, particularly in the form of acid attacks.

31    In her statement dated 1 October 2015, the wife among other things explained that “[b]eing a woman, I am fearful of my treatment on return to Iran. I have heard that some women in Iran have had acid thrown on them recently because they didn’t cover themselves properly. I am fearful that this will happen to me.”

2.5    The Tribunal’s decision

32    The appellants attended a hearing before the Tribunal on 8 October 2015 with their registered migration agent and were assisted by an interpreter in the Farsi and English languages.

33    By a decision dated 6 November 2015, the Tribunal affirmed the decision not to grant the appellants’ protection visas. The Tribunal’s reasons may relevantly be summarised as follows.

34    The Tribunal explained that it had before it the Departmental File relating to the appellants and had had regard to the material referred to the delegate’s decision and other material available to it from a range of sources (Tribunal’s reasons at [21]). The Tribunal’s reasons record that it asked the appellants to describe what happened in the 2013 incident and records their evidence relevantly as follows:

29. … [The husband] stated that it was his son’s birthday. They were out in a park as a family. Two plain-clothed persons appeared and complained about his wife’s hijab. He did not know whether they were military because they were in plain-clothes.

30. The tribunal asked [the husband] to describe what was wrong with his wife’s hijab. [The husband] stated that he did not know what the problem was. She was wearing a shawl, manto and pants. Perhaps she was wearing a little more make up and that attracted their attention.

31. The Tribunal asked [the wife] to describe what she was wearing at the time of the incident. [The wife] stated they went out for their son’s birthday celebrations. As most women do for special occasions, she had blown dried her hair and wore make up. Two people approached them and said she was wearing a bad hijab.

32. The Tribunal asked [the wife] what she was wearing. [The wife] stated that she was wearing a shirt, jacket which went down to above her knees, leggings and a shawl. The bottom of the jacket was open. She was not wearing what she wore on normal days.

32. The Tribunal asked [the husband] whether he agreed with [his wife’s] description of what she was wearing. [The husband] stated that he did.

34. The Tribunal put to [the husband] that it understood that his wife’s head was covered, but that she was wearing make up. [The husband] stated that she was wearing a shawl in the way women in Iran wear it. Perhaps not all of her hair was covered, and the corner of the shawl was around her shoulder.

35. The Tribunal asked [the husband] to continue his account of what happened. [The husband] stated that the 2 men approached them and used very bad language to his wife. They asked why she was wearing make up, why she was wearing these things. He told them it was not their business. He pushed them. They hit him on the face and back, and he fell to the ground. He did not see much while he was on the ground, as they continued to hit him.…

35    The reasons also record that the husband also said that after this incident, he stayed in Iran for three months and that they “mostly stayed at home” and did not go out. He further said that he went to work using a hidden way and would do shopping on the way home from work (Tribunal reasons at [38]-[39]). The wife agreed with her husband’s testimony.

36    Relevantly, the Tribunal asked the wife whether she had failed to comply with the dress code previously, to which she replied that “this was the first time. She had not encountered those people before, and had no previous experience. She had heard from friends and neighbours that this had happened to them. She had difficulty believing it until it happened to her”: Tribunal reasons at [54]. (I note that there is an ambiguity about this answer as to whether the statement that “this was the first time” should be read in light of the question to mean that this was the first time that she had not complied, or in light of the remainder of the answer that she had never encountered problems before because of non-compliance. Such matters are for the Tribunal absent any proven error in the interpretation.)

37    Next, the Tribunal considered the independent country information. Among other things, the Tribunal referred to country information to the following effect:

70. … Since 2009 the regime has used the terms “soft war” or “velvet revolution” to categorise what it sees as a battle against foreign cultural influence. This is exemplified by bans on western style clothing and haircuts, satellite television and loud music. Saied Golkar writing for The Journal of the Middle East and Africa, states that the Islamic moral law or code of behaviour is very broad and:

includes, but is not limited to, enforcing religious modesty; ensuring the proper wearing of the hijab for women and checking male-female fraternization; prohibiting women from listening to Western music or wearing make up, colorful scarves, and tight clothing; censuring men who sport Western hairstyles and women who wear loose-fitting scarves or shortened trousers; collecting and destroying satellite dishes; and clamping down on parties, social corruption, and so on.

38    The Tribunal also referred to country information about the Basij, explaining that it is a volunteer paramilitary militia which operates under, and serves to augment, the Iranian Revolutionary Guard Corps or IRGC (Pasdaran-e Enghlab-e Eslami) (Tribunal reasons at [71]). It described the Basij as highly diverse in structure and function, ranging from relatively untrained and disorganised neighbourhood watch groups to fully trained combat brigades, and while it has a physical presence in almost every part of Iranian society, sources indicate that only specific units (described as Nasahin or Amr be Maruf units) are responsible for day-to-day moral policing (Tribunal reasons at [71]-[72]). It also found that while Nasahin teams wear uniforms and drive marked vehicles, there are also undercover members of these teams, and that they “carry out their duties through vehicle and foot patrols and checkpoints, generally set up in crowded streets or squares, on the lookout for infractions such as improper hijab or fraternising with the opposite sex” (Tribunal reasons at [73]) (emphasis added). It found that the Basij, along with the police and Revolutionary Guards, have the power to make arrests.

39    The Tribunal then turned to the critical part of its reasoning.

40    First, despite acknowledging that the husband and wife had given reasonably consistent accounts of the altercation in their written statements, the interview before the delegate, and the hearing before the Tribunal, the Tribunal considered their account to be implausible and did not accept that the fight took place in the way described “by the applicant [sic], or at all” (Tribunal reasons at [86]). In particular, the Tribunal considered that it was implausible that “when approached by 2 men in a park and asked questions about [the wife’s] hijab, [the husband’s] response would have been to push them”, given that this was inconsistent with the climate of fear in Iran painted by the applicants in their evidence at the hearing (Tribunal reasons at [83]). I pause to note that, while the point was not argued, neither of the appellants claimed that the husband had merely been asked questions but rather that the husband had pushed the two men because of the rudeness of their comments to his wife. I also note that the claims were not only that the rude comments related to the wife wearing “bad hijab” but also to her wearing make-up. These indicate a failure by the Tribunal at this critical part of its reasons to appreciate the precise claims made by the appellants.

41    The Tribunal also found it implausible that other members of the public would have intervened “when members of the Basij were attacking [the husband]” as the fact that the men had walkie-talkies “on their belts” would have been apparent to other members of the public and cause them to exercise caution. While again the point was not taken on appeal, I note with concern that the Tribunal overlooks the husband’s claim that the walkie talkies were being worn “underneath their clothes” (as quoted above at [16]) and therefore misstated this aspect of his claims in assessing the credibility of the appellants’ claims. The Tribunal also considered it was implausible that the Basij would not have identified themselves when faced with being overpowered by members of the public and that they would not have arrested the husband for pushing them (Tribunal reasons at [84]-[85]). The Tribunal also said that it had considered the possibility that other members of the Iranian security apparatus operating undercover may have been involved rather than the Basij but considered that its reasoning was equally applicable in those circumstances (Tribunal reasons at [86]).

42    The Tribunal concluded that the appellants would not be of interest to the Basij or other members of the Iranian security apparatus as a result of the claimed incident in January 2013, as it had found that this incident did not occur (Tribunal reasons at [87]). That being so, the Tribunal also rejected the wife’s contention that she failed to comply with the dress code on that occasion as claimed, reasoning that:

88. …. In the Tribunal’s view, this claim is inextricably linked with the applicants’ claims of the fight which followed, such that if the Tribunal rejects the claims of the fight it must also reject the claimed basis of the provocation which led to the fight. This finding is supported by the uncertainty in [the husband’s] evidence as to how his wife had contravened the dress code. Even [the wife’s] account of what she was … wearing – a shawl, manto/long jacket, pants/leggings - indicates that she had complied [with the] dress code in aspects other than possibly wearing too much make up and not entirely covering her hair. She also stated that this was not what she normally wore.

43    Crucially, the Tribunal then turned to address the question of whether or not the wife would comply with the dress code if returned to Iran:

89. The Tribunal finds that [the wife] has complied with the dress code in the past. [The wife] gave evidence that she had not been questioned about compliance with the dress code prior to the occasion claimed. As set out in the preceding paragraph, the Tribunal has not accepted that [the wife] failed to comply with the dress code on the occasion claimed. [The wife’s] evidence indicated that she normally complied with the dress code. The Tribunal has not located any country information to indicate that women in Iran are required to wear a chador. Having found that [the wife] has complied with the dress code in the past, the Tribunal considers that she would continue to comply with it if she returned to Iran. The Tribunal finds that the risk of [the wife] attracting the adverse attention of the Iranian authorities for not complying with the dress code in the reasonably foreseeable future is remote. It follows that the Tribunal does not accept that [the wife] has a well-founded fear of persecution on the basis that she is a member of the particular social groups, “women in Iran” or “women who don’t abide by strict Islamic dress codes”, if she returns to Iran, now or in the reasonably foreseeable future.

44    The Tribunal, after considering the remaining claims, concluded that it was not satisfied that the appellants met the criteria for a protection visa in either subs 36(2)(a) or (2)(aa) of the Act.

2.6    The decision in the FCC

45    The primary judge explained the appellants’ core contention as follows:

36. … the Tribunal had not paid proper attention to or guided itself by the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395/2002) and thereby erred in its adverse decision to refuse Protection visas to the Applicants.

37. It was submitted by Mr Williams [counsel for the appellants] that [the wife] was an Iranian female who did not wish to abide by the dress code and feared harm on that basis, and that the Tribunal was wrong by deciding inconsistently with Appellant S395/2002 in holding that she could be expected to take reasonable steps to avoid persecutory harm and to live discreetly in a way in which she and her husband could avoid persecution. It was submitted that inconsistently with Appellant S395/2002, the Tribunal did not ask why [the wife] would conform with the dress code or live discreetly if returned to Iran and whether she would actually live in that way in the hope of avoiding persecution.

(emphasis added)

46    The primary judge dismissed this contention, finding that the wife never advanced a case in support of her protection visa application on the basis that she would defiantly not comply with the dress code, either for political or religious reasons or for any reason (FCC reasons at [39]). The primary judge also addressed other particulars to the general ground of appeal, finding as follows:

(1)    the Tribunal did not err in reaching a view as to what may happen in the future if the wife were returned to Iran having regard to her prior compliance with the dress code (FCC reasons at [46]-[49]);

(2)    the Tribunal did not err in finding at [89] of its reasons that there was no country information to indicate that women in Iran are required to wear a chador, as the choice of country information and the weight given to it are matters for the Tribunal and the finding was incidental to the Tribunal’s decision (FCC reasons at [50]-[51]);

(3)    contrary to the appellants’ submissions, no part of the Tribunal’s reasons indicates that it required or expected the wife to take reasonable steps to avoid persecutory harm or be discreet on return to Iran (FCC reasons at [53]); and

(4)    while the delegate had considered that the dress code was a generally applicable law in Iran applying to the whole population and was therefore not persecutory, the Tribunal did not find it necessary to consider this issue and therefore did not fall into error in failing to address it (FCC reasons at [54]-[57]).

3.    CONSIDERATION

47    Mr Williams for the appellants appeared to accept that there was no claim by the wife expressly to the effect that she feared persecution as a member of a particular social group, namely, women in Iran who do not wish to abide by Islamic extremism including the dress code. As I have mentioned, the central issue is whether, as Mr Williams contended, this claim squarely arose from the material before the Tribunal.

48    Turning first to the applicable principles, it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

49    A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason: Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “is apparent on the face of the material before the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at 19 [58] (the Court). As Allsop J (as his Honour then was) explained in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124):

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

(emphasis added)

See also Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA) at 300 [70] (the Court); DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [6]-[9] (Siopis and Griffiths JJ), [50] (Logan J); DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [19]-[22] (the Court).

50    Secondly, the claim that the wife feared persecution as a member of a particular social group of “women in Iran who do not wish to abide by Islamic extremism including the dress code” does arise sufficiently from the material before the Tribunal to have required the Tribunal to consider the claim in line with these principles. The claim that she did not wish to abide by the strict Islamic dress code is necessarily implicit in the wife’s claim about the 2013 incident that she had worn make-up for her son’s birthday, had blown dry her hair for the special occasion, and that her hijab was loose exposing her hair. In other words, the very fact that she went out in public wearing makeup with a loosened hijab shows that she wishes to do this despite the fact that it does not comply with the strict Islamic code enforced in Iran.

51    In this regard, it is significant that, despite having rejected the appellants’ claims that a fight occurred between the husband and the two men and that the wife failed to comply with the dress code, the Tribunal at [88] nonetheless addressed the possibility that it might have been wrong to reject the wife’s account of what she was wearing (applying the so-called “what if I am wrong” test): see Guo at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also e.g. Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at [62] (North J agreeing at [129])). Thus, bearing in mind that the Tribunal did not reject the appellants’ story that they had gone out for their son’s birthday, at [88] of its reasons the Tribunal left open and addressed the possibility that the wife’s claims as to what she was wearing in a public place were true. Furthermore it was never suggested by the wife or her husband, nor put to either of them, that the wife’s hijab had come loose accidentally; nor was it suggested that the wife had been compelled against her will to wear make-up or to loosen her hijab, or that she was unaware of the prohibition against this conduct by the dress code. The claim was that this was what she had chosen to do. Moreover, the country evidence accepted by the Tribunal at [70] was that the Islamic moral law or code of behaviour enforced as an aspect of the battle against foreign cultural influence in Iran includes ensuring the proper wearing of the hijab for women and a prohibition upon women wearing make-up (as well as wearing tight clothing, which the wife also claimed to have worn): see above at [37] and [38].

52    Thirdly, as the appellants contend, to the extent that the Tribunal considered that the wife could avoid persecution by complying with the dress code or not going out as the wife claimed that she had done in the past, the Tribunal’s reasoning runs counter to the principles in Appellant S395/2002. As Gageler J succinctly explained in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 with respect to the effect of the High Court’s decision in Appellant S395/2002:

[36]    The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:

If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country. (Emphasis in original)

[37]    The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic.

(Citations omitted)

53    In this regard, while the migration agent expressed the claims in his submissions in terms of the wife’s membership of a particular social group of women in Iran (relevantly) “woman [sic] who don’t abide by strict Islamic dress codes” or imputed political opinion as a result of not complying with the religious moral code, the substance of the wife’s own claims and those of her husband was that she complied with strict Islamic dress codes because she was afraid to do otherwise.

54    I also note that the Tribunal’s assessment of what may occur in the future also failed to address the UN 2015 Report cited by the appellants in their submissions to the Tribunal, which referred to the dress code being more strictly enforced since 20 June 2015 and concerns about a related escalation in violence by unknown actors against women for immodest attire.

55    Fourthly, the Minister’s counsel correctly accepted that, if the Court should find that the claim that the wife feared persecution as a member of the social group of women “who do not wish to abide by Islamic extremism including the dress code” squarely arose from the material before the Tribunal, that claim was not considered by the Tribunal and as a result the appeal would have to be allowed. Implicitly in this, the Minister correctly conceded that if the claim were accepted, it may lead the Tribunal to conclude that the wife had satisfied the criterion in s 36(2)(a) or (aa): WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [45] (the Court). As such, the error was a material one: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ).

56    Finally and in any event, the appellants contend that the primary judge erred in failing to find error in the Tribunal’s finding at [89] that country information did not suggest that women in Iran are required to wear a chador (see particular (l) to ground 1 of the notice of appeal). Contrary to the decision of the primary judge, in my view this finding does reveal a jurisdictional error. The Tribunal referred to the lack of country information about any requirement to wear a chador in Iran because plainly if that were a requirement, the wife would not have complied with it. In other words, the finding that wearing a chador was not a requirement was relevant to the Tribunal’s reasoning only because it found that the wife had complied with the dress code despite accepting the possibility that she was wearing too much make-up and not entirely covering her hair: Tribunal reasons at [88] and [89]. This reveals a fundamental failure by the Tribunal to understand the wife’s claim that wearing make-up and failing to wear the hijab so as to entirely cover her hair were themselves breaches of the strict Islamic moral code – a claim which is also consistent with the country information that the Tribunal apparently accepted at [70] of its reasons.

4.    CONCLUSION

57    For these reasons the appeal must be allowed with costs and the matter remitted to the Tribunal differently constituted for determination according to law.

Associate:

Dated:    25 February 2019