MZZTW v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia given on 19 September 2014, in which the appellant's application for judicial review of a decision of an Independent Merits Reviewer ("the Reviewer") made on 4 May 2012 was dismissed. In that decision, the reviewer (the second respondent to this appeal) recommended to the Minister for Immigration and Border Protection (the first respondent to this appeal) that the appellant, an Iranian, not be recognised as a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The reviewer found that the appellant did not satisfy the criteria for the grant of a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"). 2 In the Federal Circuit Court, the appellant alleged that the reviewer had erred in three respects, namely, first, by failing properly to consider her claim with regard to membership of a particular social group, secondly, with respect to the assessment as to whether she was at real risk of serious harm and, thirdly, by failing properly to consider whether or not she was exposed to a real risk of significant harm pursuant to s 36(2)(aa) of the Act. The primary Judge held against the appellant on each of these allegations. The appellant's grounds of appeal in this court correspond with the first and second of the allegations. No challenge is made to his Honour's rejection of the third allegation. 3 The social group of which the appellant claimed to be a member was that of young women in Iran who did not abide by strict Islamic protocol with respect to dress and appearance. In considering this ground of appeal, it is convenient to commence with the way the subject was dealt with by the reviewer in her written reasons of 4 May 2012. 4 The reviewer acknowledged the appellant's claim to be a member of the social group referred to. Then, dealing with the interview which she had conducted with the appellant, the reviewer said: The fact that Islamic dress was required in Iran was discussed with the claimant. She agreed that men were also subject to a dress code and were punished for short sleeved shirts, hair cuts and other things. She agreed that in Tehran there were many women who wore make up and allowed a lot of hair to show under their head scarf. Though she stated that the less fortunate were arrested and some were killed. It was put to the claimant that dressing in an un-Islamic way usually led to a person's parents being contacted, a telling off or at worst a fine and beating. People were not killed for this. She responded that the Iranian government was unpredictable. There were two occasions when the claimant was confronted by the Basij for her un-Islamic appearance. On the worst occasion she was with three girlfriends who were dressed equally inappropriately. A female Basij officer grabbed her and swore at her and asked her why she dressed like this. The Basij officer beat her with her fists and kicked her. She managed to escape because her girlfriends helped and as the Basij was wearing a chador she could not move very well and had to gather her chador around her. The claimant had a sore back for two days after this incident. She was targeted rather than her two friends because she was unfortunate. On another occasion they spoke badly to her and she was dishonoured in front of a lot of people. She could not remember exactly when these incidents occurred. These incidents did not cause her to change the way she dressed. 5 The reviewer referred to country information which included extracts from apparently reputable publications as follows: Head and body coverings for women are mandatory under Article 638 of the penal code, which stipulates that those who fail to comply with hijab sharée (Shari'a-based veiling) face 10 days to two months in prison or fines between 50,000 and 500,000 rials (US$5 to US$50). The law lacks specificity on what constitutes a violation, but in practice, women have been punished for all of the following: showing part of one's hair, using cosmetics, wearing sunglasses, wearing a tight or short manteau (coat or gown), showing skin above the wrist or ankle, showing neckline, and wearing boots over (rather than under) trousers. No private plaintiff is necessary for prosecution, as it is the state's prerogative to monitor and control women's apparel. Harsher enforcement has increased the number of arbitrary arrests and detentions in recent years. Immediately following the revolution, observance of head coverings and modest dress for women was enforced by a special police service in all public places, and women were harassed, arrested, fined, and detained for violations. During the reform era under President Khatami (1997-2005), this enforcement was relaxed considerably although not eliminated. However, since 2006, male and female officers have stopped, verbally scolded, physically attacked, arrested, or temporarily detained thousands of women and some young men for wearing insufficiently modest clothing, or 'bad hijab'. … In practice, women are required to cover their hair and the contours of their body in public (Al Jazeera 15 June 2011; AFP 14 June 2010). Sources note that loose-fitting headscarves, tight overcoats and short trousers that expose the skin are prohibited (Al Jazeera 15 June 2011; The Guardian 14 June 2011). ... Men are reportedly prohibited from wearing shorts (The Guardian 14 June 2011) and "tight, low-slung jeans" (AFP 24 May 2010). … Sources note that enforcement efforts usually intensify during the summer (RFE/RL 23 Sept 2009; AFP 14 June 2010; Reuters 10 Jan 2011), although enforcement campaigns were reported to have continued into the winter in 2008 (RFE/RL 23 Sept. 2009). Amnesty International reports that, in April 2011, the Supreme Leader called for "renewed attention to enforcing" the dress code, and that, in May 2011, a "chastity and modesty" campaign was launched to target non-compliers in public spaces, including on university campuses (2011). Sources note that 70,000 trained forces known as the "moral police" were deployed in 2011 as part of the campaign (Al Jazeera 15 June 2011; The Guardian 14 June 2011). The enforcement campaign also allowed police to stop and impound cars carrying improperly dressed individuals (The Washington Post 23 July 2011; Al Jazeera 15 June 2011). … The US Department of State, citing press reports, indicates that more than two million citizens have been stopped or detained by the morality police for inappropriate dress or, hairstyles (8 Apr. 2011, 27). ... Sources indicate that individuals found in violation of the dress code can be fined or arrested (Al Jazeera 15 June 2011; The Guardian 14 June 2011). In 2010, Agence France-Presse reported that the penalty for contravening the dress code had increased to 13 million IRR [C$1,218 (XE 20 Dec. 2011b)] (AFP 14 June 2010). The Washington Post reported in 2011 that fines and punishments, which sometimes include whipping, have been increased (23 July 2011). 6 In the deliberative part of the reviewer's written reasons, she said: The reviewer accepts that the claimant is not permitted to walk around without a hijab (or appropriate Islamic clothing) in Iran. The reviewer does not accept that being required to wear modest Islamic clothing amounts to serious harm as envisaged by s91R(1)(b) of the Act and therefore although a restriction on the claimant's freedom, it does not amount to persecution within the meaning of the Convention. Further the requirement to wear Islamic clothing applies to all persons in Iran. The evidence before the Tribunal does not indicate that these laws would be discriminatorily applied, implemented or enforced against the claimant for a Convention reason. Therefore punishment for breach of the dress regulations is the implementation of a law of general application and the punishment is not persecution within the meaning of the Convention. The claimant indicated that there were many occasions on which she wore inappropriate clothing. She indicated that her neighbour often criticised her for what he regarded as her immodest dress. The reviewer accepts there have been two occasions when the Basij had reprimanded her for inappropriate dress. On one occasion she was verbally abused and on the other occasion she was beaten and kicked. She indicated that she felt that she was merely "unlucky" to have been targeted. The reviewer is of the view that this isolated incident although clearly distressing did not amount to significant physical harassment or significant physical ill-treatment so as to amount to serious harm and persecution within the meaning of the Convention. The claimant stated that she feared that she would be killed for breaching the clothing requirements. The claimant did not indicate that she was aware of anyone who had been killed for breaching the dress code and as discussed with the claimant the penalty for breaching the dress code normally is a verbal warning or a brief period of detention. The reviewer does not accept that she would be dealt with harshly … under Islamic law. The reviewer finds based on the claimant's evidence and the country information that there is no real chance that the claimant would be killed (or seriously harmed) in the reasonably foreseeable future for not wearing appropriate Islamic dress and that any fear of persecution she has is not well-founded. 7 That last conclusion fed back into a later paragraph in the reasons in which the reviewer considered the appellant's claims cumulatively (ie involving not only the claim based on membership of the social group which is now relevant but also other claims then being made). The reviewer said: The reviewer has considered the claimant's claims cumulatively. That is whether a woman who may be divorced on return, whose estranged husband and brother had some involvement in political activities in Iran, who is an Arab Khamseh and who does not obey the dress regulations in Iran, who has owned a dog and who has travelled to a Western country and subsequently sought asylum in Australia, faces a real chance of persecution on return to Iran and finds that even when the claims are considered cumulatively there is no real chance that the claimant would be persecuted for a Convention reason in the reasonably foreseeable future and that her fear of persecution is not well-founded. 8 In the Federal Circuit Court, it appears from the reasons of the primary Judge that the essence of the appellant's first allegation was that the reviewer had "asked the wrong question". Instead of asking, as she should have, what would happen to the appellant if she did not abide by strict Islamic protocol as to dress and appearance, the reviewer seemed to ask herself whether it would amount to serious harm in the relevant sense for the appellant to have to comply with that protocol. Further, it was put that the reviewer's reference to this protocol being enforced by laws of general application was a distraction, and that the reviewer ought to have considered, and made a decision specifically about, whether there was a particular social group of the kind alleged by the appellant and, if so, whether the appellant was a member of it. 9 On this aspect of the case, the primary Judge said that the proposition that the requirement to dress according to Islamic protocol was a law of general application was "at the very least, clearly open" on the materials to which the reviewer had referred. His Honour said that, on a fair reading of her reasons, the reviewer was "well aware what the [appellant] was saying had occurred to her in relation to her breaches of the dress code, and concluded that this was not likely to give rise to persecution within the meaning of the Convention". 10 His Honour's reasons then moved into the area of legal principle, noting the judgments in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 and Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9. Although not entirely clear in his Honour's reasons, it seems that the point of referring to these authorities was to understand to what extent the reviewer was obliged to make discrete, sequential, findings as to the existence of the social group relied on and as to the appellant's membership of it. 11 Without embarking upon any particular examination of the relevance of the authorities to the appellant's circumstances, the primary Judge found that the reviewer had "considered the [appellant's] case in the light of what had actually occurred to her." His Honour continued: 51. The matters which she said gave rise to a real risk of serious harm upon possible return to Iran, while they may well have affected other people of like mind, were all inherently personal to her. The Reviewer found that the applicant would not face a risk of serious harm on this basis. 52. In my view, in the particular circumstances of the case, the Reviewer well understood the claim the applicant was making. I accept that it was not necessary in the particular circumstances for the Reviewer to consider the claim of a particular social group, albeit that it was advanced as a discrete matter because of the nature of the facts and the circumstances that the Reviewer confronted. The Reviewer, in my view, did not fall into jurisdictional error in dealing with it in the way that she did. 53. Furthermore, there was in fact material before the Reviewer which would properly have entitled the Reviewer to find, as she did, that this was a law of general application that would not be described in a discriminatory way in any event. 12 In the present appeal, the arguments presented on behalf both of the appellant and of the Minister barely mentioned, and did not analyse, the treatment given to the appellant's allegation in the Federal Circuit Court. The submissions proceeded as though the tasks were to attack and to defend, respectively, the reasons of the reviewer. On the appellant's part, this may have been because of the observation by the primary Judge, in the passage set out most recently above, that it was "not necessary … for the reviewer to consider the claim of the particular social group". This was, with respect, a curious observation, as it did not proceed from any finding as to whether the reviewer had, or had not, considered such a claim. That the reviewer failed to consider that claim was, of course, the appellant's first allegation in the Federal Circuit Court, and she was, with respect to his Honour, entitled to know directly whether that allegation had been made good. The way the matter was treated by his Honour in his reasons of 19 September 2014 produced the result that the appeal in this court was conducted, on both sides, by reference to legal principle without the facts to which that principle should be applied ever having been the subject of the necessary findings. 13 In my view, it is as clear as may be that the reviewer gave consideration to the appellant's claim that she would be persecuted in Iran on account of her membership of the particular social group of young women who did not abide by strict Islamic protocol with respect to dress and appearance. The reviewer did not make a specific finding in terms of "membership" of the "group", but this did not lead her into defining, or considering, the group too widely, or in a way that distracted her from the task of giving specific consideration to what was the essence of the appellant's claim, namely, that she was one of those Iranian women who did not strictly comply with the protocol, and that she would face persecution on account of it. The whole of the relevant sections of the reviewer's reasons proceeded from an acceptance, implicit though it was, of the propositions that there was such a group and that the appellant was a member of it. 14 Counsel for the appellant relied on what was said by Gummow and Callinan JJ in Dranichnikov (77 ALJR at 1092 [26]): At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention [footnote omitted]. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason. The essence of the appellant's point was that the reviewer in the present case did not closely follow this three-step process, specifically in relation to the first step. However, as I have indicated, the reviewer implicitly accepted the appellant's case that the social group alleged did exist as such and that she was a member of it. 15 Furthermore, I do not consider that their Honours in Dranichnikov intended to propound that any failure scrupulously to adhere to the steps referred to would necessarily lead to the conclusion that there was a constructive failure to exercise jurisdiction. In the case itself, there had been a misidentification of the social group relied on: the group relied on was entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals, whereas the group as defined by the decision-making tribunal was entrepreneurs and/or businessmen, simpliciter. It is easy to see how an identification of the group too widely in this way would have caused the Tribunal to bypass the critical question in the case. No such issue arises in the present case. In the reasons of the reviewer, no misunderstanding of, or confusion about, the particular social group relied on by the appellant is revealed in the reasons of the reviewer. In her articulation of the appellant's claims, the reviewer identified the group in the very terms which the appellant has used in this appeal. 16 In these circumstances, the omission from the reviewer's reasons of an explicit finding that there was such a group and as to the appellant's membership of it is of no consequence. On the question whether the reviewer constructively failed to exercise her jurisdiction, it leads nowhere. To the extent that the reviewer was obliged to consider the existence and nature of the group, and the appellant's membership of it, she did so. 17 The second allegation made by the appellant below, corresponding to the second of her grounds of appeal here, was the reviewer made a jurisdictional error in her assessment of whether the appellant was at a real risk of serious harm. At the core of this complaint was the proposition that the question for the reviewer was not whether the requirement to comply with the Islamic dress and appearance protocol amounted to serious harm, but whether someone who did not so comply was at risk of serious harm. 18 In this compartment of the case, the primary Judge referred to the last two sentences in the third paragraph of the reviewer's reasons set out at para 6 above, and continued: It was, in my view, open to the Reviewer to find on the facts as they stood that the applicant's past experiences were such that there was not a real chance that she would suffer serious harm, if returned to Iran, on the basis of noncompliance with the dress code. The applicant's own evidence suggested that over a not inconsiderable period of time the applicant had suffered only isolated mistreatment, which itself was not sufficient to amount to serious harm. The Reviewer did not, in my view, fall into jurisdictional error in concluding on a prospective basis that serious harm would not occur. It is true that the Reviewer did not refer in terms to the likelihood of longer periods of incarceration, but it was the Reviewer who quoted the country information that indicated this was a possibility for repeat offenders, and the Reviewer can reasonably be taken to have been aware of it. In the circumstances, the finding of the Reviewer, when read fairly and as a whole, is not open to this criticism that the applicant advances. These passages in his Honour's reasoning do not, in my respectful view, disclose any error of a kind that should be corrected on appeal. 19 Beyond that, I would say that the reviewer's approach was unexceptionable from a jurisdictional point of view. It could not be avoided that the feature of Iranian society upon which the appellant relied was rooted in a law of general application with which all women had to comply. The reviewer was correct, in my view, to say that the need to comply with a law of general application could not amount to persecution within the meaning of the Convention. Approached in this way, the social group upon which the appellant relied was young women in Iran who broke the law. Counsel for the appellant accepted that the group could not be so defined at the general level, but that it would be different if, as he submitted was the case, the law was discriminatorily applied adversely to the appellant herself. Aside from the problem that this would mean that the harm was presumptively to be inflicted on her by reference to some feature other than her membership of the social group on which she relied, the reviewer found (although here mistakenly referring to herself as "the Tribunal") that the evidence did not indicate that the laws in question "would be discriminatorily applied, implemented or enforced against the claimant for a Convention reason". 20 In the setting, therefore, of a law of general application, the reviewer proceeded to consider the likely consequences for the appellant of not abiding by that law. In the passages which I have set out above, the reviewer found that the penalty was "normally … a verbal warning or a brief period of detention". This was not to be considered harsh treatment. The reviewer considered also what might be described as extra-curial measures which had been taken by members of the Islamic community against the appellant on account of her immodest dress on occasions in the past. The conclusion reached was that the limited instances of such measures "although clearly distressing did not amount to significant physical harassment or significant physical ill-treatment so as to amount to serious harm and persecution within the meaning of the Convention." 21 In my view, the case that the reviewer failed to exercise her jurisdiction by asking only whether it would constitute serious harm for the appellant to be obliged to comply with Islamic dress and appearance protocols, and by failing to consider what harm or detriment would be occasioned to her if she did not so comply, was not made out in the Federal Circuit Court, and the primary Judge was correct to have held as much. 22 For the above reasons, the appeal will be dismissed. 23 The assumption I make is that costs should follow the event, but, lest there be any special circumstance of which the court is unaware, I shall give the appellant liberty to apply within 14 days. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.