NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2002-07-30|Before: Branson J

INTRODUCTION 1 By an undated amended application filed in the Court on 27 June 2002 the applicants seek declaratory and other relief in respect of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 12 February 2002 whereby the Tribunal affirmed a decision that the applicants not be granted protection visas. 2 The applicants are a family of Iranian nationals comprising wife, husband and child. For present purposes only the claim of the wife to be a person to whom Australia owes protection obligations need be considered. The husband and child relevantly seek protection visas on the basis that they are members of the wife's family unit. Hereafter I will refer to the wife as the applicant.

contentions of the applicant 3 This application was argued on the basis that the applicant's claim before the Tribunal was: "… that she had a well‑founded fear of persecution if forced to return to Iran because: · she was, and is, a member of a particular social group of women (within the population of women in Iran) who share characteristics that motive [sic] the persecution of this particular group of women; · of imputed religious opinion; · of imputed political opinion." 4 Mr Nair, counsel for the applicant, contended that the Tribunal made a jurisdictional error in wrongly identifying the social group of which the applicant claimed to be a member. He contended that the Tribunal regarded the group as "women in Iran". The applicant, it was submitted, feared persecution because she was and will be a member of a particular social group whose characteristics include that the members: (1) are women; (2) are of the Islamic faith; (3) have on previous occasions come to the attention of the authorities for breaches of the Islamic dress code and the Islamic social code; (4) have come to the adverse attention of the authorities for reasons additional to breaches of the Islamic dress and social code (eg "talking back" to an official); (5) have been made to sign undertakings not to commit further breaches; and (6) have committed further breaches. 5 It was also contended that the decision of the Tribunal was affected by actual bias and apprehended bias.

findings of the tribunal 6 The Tribunal formed an adverse view of the applicant's credibility. In its written reasons for decision it recorded: "In my view, aspects of [the applicant's] evidence were vague as well as inconsistent with the independent evidence before me. I consider that [the applicant] fabricated aspects of her evidence in an attempt to bring herself with [sic] the definition of a refugee. Whilst I accept some aspects of [the applicant's] evidence, I do not accept that she faces detention and lashes if she returns to Iran." 7 The Tribunal noted that the applicant's main claim was that if she returned to Iran she will be persecuted by detention and lashings because of an incident which she claimed occurred in 1998. After giving consideration to the claims and evidence advanced in respect of the 1998 incident, the Tribunal concluded: "Overall, I cannot be satisfied that the incident which [the applicant] claimed occurred in 1998 occurred in the manner she has described, or at all. Even if there was some incident in 1998 when [the applicant's] car was stopped when she was driving with her nephews and nieces, I do not accept that [the applicant] was charged in relation to this incident, or that she was of any ongoing adverse interest to the Iranian authorities because of this incident. In my view, if [the applicant] did have a brush with the Iranian authorities in 1998, it was a very minor incident with absolutely no ongoing adverse consequences. I do not accept that as a result of this incident [the applicant] was suspected of openly criticising the government, improper maintenance of hejab or concealing information about her husband, let alone that she was accused of such offences and charged in relation to them." 8 The Tribunal did not accept that the applicant was of any adverse interest to the Iranian authorities at the time that she left Iran. It did, however, accept that between 1982 and 1992 the applicant was involved in four encounters with the Iranian authorities. It accepted that in 1982 the applicant and her husband were questioned about their relationship and their car searched. It accepted that in 1986 their car was randomly stopped and the applicant was told that she should not show her hair or wear thin stockings again. It accepted that in 1991 the applicant was picked up in a raid in a shopping precinct, detained overnight and fined for a dress code breach. It accepted that in 1992 the applicant was fined for talking back to an official and her sister was fined for wearing Ray‑Ban sunglasses. 9 The Tribunal characterised the above incidents as minor in nature and noted that the applicant did not claim that they were the reason that she left Iran. The Tribunal did not regard the treatment experienced by the applicant as a result of these incidents as being serious enough to be characterised as persecution. Further, it concluded: "… that the small number of occasions on which [the applicant] has reported having any difficulties with the Iranian authorities indicates that over a period of some sixteen years from 1982 until her departure from Iran in 1998 she has overall satisfactorily complied with both the Islamic dress code and other requirements imposed by the Iranian authorities. … I consider that the chance that [the applicant] would behave in such a way as to attract the adverse attention of the Iranian authorities were she to return to Iran is remote." 10 The Tribunal went on to observe that: "It is also clear from the independent evidence that a great deal of latitude is allowed in observing the hejab. In addition to the independent evidence on this point, my own observations on a trip to Iran in 2000 were that Iranian women who choose to do so cover very little hair with their scarves and wear fashionable clothes and make up." 11 It is the above reference to the experience of the Tribunal member in Iran in 2000 which founds the applicant's claim that the decision of the Tribunal was affected by actual or imputed bias.

Bias 12 I turn first to the allegations of bias and apprehended bias in the Tribunal. 13 An administrative decision‑maker is under no obligation to disregard his or her relevant personal experiences. Indeed, relevant personal experience or expertise may explain an individual's appointment to an administrative body such as the Tribunal. However, the Tribunal is under a duty to conduct a fair hearing. Where the Tribunal contemplates calling in aid the presiding member's own observations in a way which could be prejudicial to the interests of an applicant, the applicant is entitled to be given an opportunity of commenting on those observations in the context of the applicant's claims (Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123). 14 In this case the Tribunal member said during the course of the hearing: "Now, in relation to dress code there are just a couple of things that I want to comment on. Firstly, it's clear from everything that I've read and again clear from my own experience of being in Iran recently that over a period of time that the requirements for women in relation to the dress code have changed since the early days of the revolution. It's rare to see a women in Teheran, particularly in the northern part of Teheran, who is not showing hair or wearing make up. … Now, these are I think views that would have been expressed to you previously in hearings. They have been the subject of submissions before. I'm happy to receive any further submissions that your adviser wants to make and your adviser can make those in connection with responding to the letter that I've given you." The applicant made an immediate response to the above statement by the Tribunal member the import of which is unclear. The invitation for the applicant's adviser to provide further submissions was not taken up. The Tribunal did not, in the circumstances, deny the applicant procedural fairness by placing weight on the observations made by the Tribunal member in Iran in 2000. 15 Nothing in the material before me suggests that the Tribunal member's mind had been so influenced by preconceptions formed before the hearing as a result of the member's visit to Iran in 2000 that she approach the inquiry with a closed mind and was unwilling or unable to decide it impartially (Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71). Nor, in my view, might a fair minded lay observer have reasonably apprehended that the Tribunal member might not bring an impartial mind to the consideration of the applicant's claim to be entitled to a protection visa (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]‑[28]). 16 For the above reasons it is unnecessary for consideration to be given to whether s 474 of the Migration Act 1958 (Cth) ("the Act") has the effect that allegations of actual or apprehended bias in the Tribunal are not able to be pursued in this Court.

Particular Social Group 17 The Tribunal did not accept that the applicant was of adverse interest to the Iranian authorities when she left Iran. It concluded that the chance that she would behave in such a way as to attract the adverse interest of the Iranian authorities in the future was remote. The Tribunal characterised the treatment that the applicant had experienced in the past at the hand of the Iranian authorities, as insufficiently serious to amount to persecution. It may fairly be inferred that the Tribunal concluded that there was no real chance that the applicant would suffer from more serious mistreatment were she to return to Iran. 18 Having regard to the above conclusions of the Tribunal, I accept the submission advanced on behalf of the respondent that the Tribunal's approach to the question of whether the applicant has a well‑founded fear of persecution for reason of her membership of a particular social group is irrelevant to the outcome of this application. The Tribunal was not satisfied that the applicant has a well‑founded fear of persecution in Iran for any reason. 19 In the circumstances it is unnecessary for consideration to be given to whether a group with the characteristics identified in [4] above could constitute a "particular social group" within the meaning of the Refugees Convention. Nor need consideration be given to whether there was any material upon which the Tribunal could have been satisfied that such a group exists as a social group in Iran (see Minister for Immigration & Multicultural Affairs v Zamora (1998) 85 FCR 458 at 464). The interesting question of when non‑compliance with religious or cultural norms may give rise to imputations as to religious or political opinion will also need to await another case.

conclusion 20 The application will be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor for the Respondent: Australian Government Solicitor

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