NAEH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 28 (27 February 2003)

Last Updated: 10 March 2003

FEDERAL COURT OF AUSTRALIA

NAEH v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCAFC 28

MIGRATION - judicial review - Refugee - particular social group - women in Iran who have clashed with authority - whether Tribunal considered particular social group - underlying fact findings of no well-founded fear of persecution - social group issue academic - appeal dismissed.

Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth) s 39B

NAEH OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS

N 873 OF 2002

FRENCH, LINDGREN AND FINKELSTEIN JJ

27 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 873 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAEH OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE OF ORDER:	27 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 873 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAEH OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE:	27 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FRENCH J:

1 The appellants are Iranian nationals, husband, wife and child, who arrived in Australia on 23 September 1998. They lodged an application for protection visas for each of them on 6 November 1998. The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 15 December 1998. On 23 December 1998, they applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal affirmed the delegate's decision on 12 May 1999 but on 22 October 1999 that decision was set aside by an order of this Court and the matter remitted to the Tribunal to be dealt with according to law.

2 The second Tribunal again affirmed the delegate's decision on 9 May 2000. The appellants again succeeded upon judicial review in having that decision set aside by the Federal Court and the matter remitted. On 7 January 2002, a third Tribunal again affirmed the delegate's decision. The appellants' application for judicial review of that decision was dismissed by Branson J on 30 July 2002. They now appeal against her Honour's decision.

3 The application for relief under section 39B of the Judiciary Act 1903 (Cth) brought before Branson J was concerned with the Tribunal's treatment of the appellant wife's claims. These were set out in a statutory declaration made in support of her application. It referred to a number of incidents in which she said she had fallen foul of Iranian authorities in relation, inter alia, to dress codes for women in 1982, 1991, 1992 and 1998.

4 The incidents to which she refers, set out in the statutory declaration, began in 1986 when she was pregnant. She and her husband were driving to her mother's house when stopped by revolutionary guards. Shortly before being stopped she had been ill and had been sick on the side of the road. Her scarf had tipped back and some of her hair was uncovered. In addition she was not wearing thick stockings. She and her husband were questioned and allowed to go with a warning that she should not show her hair or wear thin stockings again.

5 The appellants' daughter was born in November 1986 with a congenital heart condition which has improved following surgery. In the summer of 1991, the appellant wife and her daughter were shopping while her husband was looking for a place to park the car. Komiteh officers came to the area and rounded up all the women and men who were perceived as deviating from the Islamic dress code. Women were ordered to remove gloves so that they could be checked for nail polish. The appellant wife's daughter was petrified when a woman guard pulled the appellant wife towards a waiting mini-bus. Her distress attracted the guard's attention. The guard made derogatory remarks about the way the daughter was dressed. The appellant husband arrived and took their daughter. The appellant wife was taken to Komiteh headquarters where she had to sign a written undertaking and pay a fine before she was allowed to leave the following morning.

6 The next incident referred to occurred in the spring of 1992 when the family was on its way to a traditional New Year's picnic. Revolutionary guards stopped their car as it was heading out of town. They were questioned and the daughter became ill. The appellant wife raised her voice to object to the guard's refusal to allow her to take her daughter outside to her husband. She was fined for raising her voice and had to sign an undertaking. Her sister was fined 5000 Tomans for having Rayban sunglasses.

7 In the summer of 1995, the family attended a party in North Teheran. This party was raided by revolutionary guards and the appellant husband was involved in a scuffle with one of the guards. In the course of the scuffle the guard's CB radio was broken. They were taken to local headquarters but were released, except for the appellant husband, after paying a fine and signing an undertaking. The appellant husband's release was secured on bail and he was charged with a number of offences. This meant that he could be blacklisted which would make obtaining travel documents and leaving the country impossible. In the event the appellant husband left Iran in August 1995 and went to Malaysia.

8 After he did so the appellant wife and their daughter moved to her mother's house. The authorities came to ask her of her husband's whereabouts on a number of occasions and she always told them that he was out of town. In July 1996 she went to Malaysia to visit her husband and then returned to Iran after three months.

9 In April 1998, the appellant wife was in a car with three of her nephews and two of her nieces. One of her nephews was driving the car. They were stopped by revolutionary guards. She and the driver were the only ones with identification. The car was searched and western music tapes were found. They were taken to revolutionary guard headquarters. One of the guards made derogatory remarks about the appellant wife's floral patterned scarf and told her that she should be setting an example for her nieces. She argued with the guard, telling her that she maintained Hejab and that what she wore properly covered her hair. A summons was subsequently delivered to her mother requiring the appellant wife to appear before the Revolutionary Court to answer charges of openly criticising the government, improper maintenance of Hejab and concealing information about her husband.

10 The appellant wife told her husband about this. He told her to leave Iran as soon as she could. He told her to contact the person who had organised his departure from Iran in 1995. She contacted him and he said he might be able to help her depending on his contact at the airport and whether her name was on a blacklist.

11 The appellant wife's court appearance was due on 10 June 1998. Three or four days after speaking with the person indicated by her husband she was told that she could leave on a particular day when the contact would be at the immigration desk and that this would cost her 200,000 Toman. The contact was not sure whether her name was on the blacklist. The appellant wife booked tickets for 9 June 1998. Her father paid about $US2500 for her to go to Malaysia. There she obtained temporary residence but her husband could not afford to pay the renewal fees and she took the view that because Iran and Malaysia had good relations they would not have been able to apply for refugee status there.

12 The husband's claims were also set out in the statutory declaration concerning the incident which occurred in 1995. In relation to the revolutionary guards' raid on the party he said that he had been charged with assaulting a government officer, consuming alcohol, being in the presence of women who did not have proper Hejab, damaging public property and being in possession of illegal video tapes. He had been due to appear in court shortly before he left Iran. He said that after he was released on bail pending his court appearance he took steps to renew his passport but was told, when he went to collect it, that it had been sent to the Security and Information Department and could not be released to him. He made arrangements with the same contact to whom the appellant wife referred to pay a bribe which would get him through immigration at the airport and enable him to leave Iran.

13 The appellants sought to support their case before the Tribunal by providing documents said to be court documents relevant to it. Two were said to be summonses, one relating to the husband issued on 25 July 1995 and the other relating to the wife which had been issued on 18 May 1998. The third document purported to be a court document sentencing the appellant wife to 74 lashes and one month's imprisonment and was dated 16 July 1998.

14 The Tribunal in its reasons for decision, set out the appellants' claims, their evidence at the hearing before the Tribunal, which took place on 28 March 2001, and country information relating, inter alia, to the situation of women in Iran. In the Findings and Reasons section of its reasons for decisions, the Tribunal made a number of findings adverse to the appellants on key aspects of their claims. The Tribunal said at p 25 of its reasons:

"In my view, aspects of [the appellant wife's] evidence were vague as well as inconsistent with the independent evidence before me. I consider that [the appellant wife] 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 appellant wife's] evidence, I do not accept that she faces detention and lashes if she returns to Iran."

The Tribunal also considered some aspects of the appellant husband's evidence to be:

"... lacking in detail and inconsistent with the independent evidence."

It did not consider him to be reliable or credible as a witness and found that he had:

"... fabricated claims in an attempt to create for himself the profile of a refugee."

15 The Tribunal did not accept that the appellant wife had been charged in 1998 as she claimed or that she was due to appear in court. In this connection the Tribunal was of the view that, had there been charges pending against her, her name would have appeared on a blacklist and that she would have been unable to leave Iran. It did not accept her story that she had been helped to leave Iran by way of a bribe paid to facilitate her departure. The Tribunal said in respect of documents produced by the appellant wife:

"One of these documents purports to be a summons and the other purports to be a verdict and sentence. However, independent evidence before me from the Australian Embassy in Tehran suggests that the summons provided by [the appellant wife] is not genuine, as it does not contain a reference number. In response to the section 424A notice given to [the appellant wife] in relation to this issue, [the appellant wife] responded that a lawyer told her friend that the fact that a summons does not contain a reference number is not conclusive evidence that it is not genuine. I accept that the lack of a reference number is not conclusive evidence that the summons is not genuine. However, when considered in conjunction with other problems with [the appellant wife's] evidence, I cannot be satisfied that the summons is genuine.

Moreover, I generally place more weight on the opinion provided by DFAT in relation to this issue. I am satisfied that the Australian Embassy would only seek legal advice from practitioners whose advice could be trusted. On the other hand, I have no way of knowing anything about the legal practitioner allegedly consulted by [the appellant wife's] friend. In my view, if it was common for summonses to be issued without a reference number, I consider that the legal firms consulted by the Australian Embassy would have advised them of this.

I am unable to accept the summons as evidence that [the appellant wife] was charged as she has claimed. For the above reasons, I do not accept that she was charged in relation to an incident in 1998. I therefore do not accept that [the appellant wife] was of any interest to the Iranian authorities at the time she left Iran. As the sentence allegedly imposed on [the appellant wife] arises out of the charges referred to in the purported summons, it follows that I cannot accept that any sentence has been imposed on [the appellant wife]. I do not accept that the document dated 16 July 1998 is genuine and I do not place any weight on it. I do not accept that [the appellant wife] has been sentenced to a term of imprisonment and lashes. I do not accept that such a punishment would be imposed on [the appellant wife] if she returned to Iran. As I do not accept that [the appellant wife] was of any interest to the Iranian authorities at the time she left Iran, I do not accept that she left Iran illegally."

16 The Tribunal was not satisfied that the claimed incident in 1998 occurred. If the appellant wife had had a brush with Iranian authorities in 1998 it was:

"... a very minor incident with absolutely no ongoing adverse consequences."

17 The Tribunal did accept that between 1982 and 1992 the appellant wife was involved in four encounters with the Iranian authorities. On only two of these occasions was she directly challenged because of her non-adherence to the dress code. These were in 1986 and 1991. These encounters were:

"... minor in nature."

The Tribunal did not regard the incidents, which it accepted, as evidencing persecution or giving rise to any well-founded fear of persecution. It appears in this respect to have had regard to the requirements of "serious harm" in s 91R of the Migration Act 1958 (Cth) although it would not appear that the constraints imposed by that section would be necessary to a finding that the incidents as found by the Tribunal did not amount to persecution.

18 The Tribunal went on to consider whether the appellant wife feared persecution as a member of a particular social group, namely women in Iran. It was not satisfied that women in that country constitute a particular social group for the purposes of the Convention. It said:

"In any event, even if "women in Iran" could be said to constitute a particular social group, I still have to be satisfied that there is a real chance that [the appellant wife] would face persecution for reasons of her membership of this group. As noted above, women are subject to a range of discriminatory laws. However, with the exception of her claims in relation to the law that mandates the Islamic dress code, [the appellant wife] has not claimed to have been subjected to serious harm because of laws that discriminate against women. For example, [the appellant wife] is in an intact marriage, so she has not been discriminated against in relation to divorce or child custody. She has also been able to travel outside Iran on a number of occasions."

19 Before her Honour and before this Court counsel for the appellants said the Tribunal had erred in wrongly identifying the social group of which the appellant wife was a member. That group, he said, was defined as set out at paragraph 4 of her Honour's judgment. The members of the social group:

1. are women;

2. are of 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 Islamic dress and social code, for example, talking back to an official;

5. have been made to sign undertakings not to commit further breaches; and

6. have committed further breaches.

Counsel described this particular social group, in shorthand, as "recalcitrant women in Iran". As to this her Honour said at [17] and [18] of her reasons for decision:

"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.

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."

20 In my opinion her Honour was correct. Counsel for the appellants submitted that the Tribunal's findings were infected by its failure to view the claims and evidence through the prism of a correct characterisation of the social group being that which he had defined. In my opinion as a matter of logic this would have made no difference to the outcome. I would add the observation that the interpolation of the social group definition in the submissions put by counsel for the appellant was almost irrelevant as the primary basis reduced to one of a well-founded fear of persecution on grounds of imputed political or religious opinion.

21 In my opinion for these reasons the appeal should be dismissed and the appellants should pay the respondent's costs of the appeal.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 10 March 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 873 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAEH OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE:	27 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LINDGREN J:

22 I agree.

23 On crucial matters the Tribunal did not believe the two appellants (the husband and wife) who testified. The Member reached his conclusion adverse to their credibility before addressing the question of the identity and scope of the "particular social group" which the application raised for consideration. It could have made no difference to the result if the Tribunal had regarded as the particular social group calling for consideration, a group narrower than "women in Iran".

24 Accordingly, I agree with the learned primary Judge's observations relating to "particular social group" at [17]-[19] of her Honour's reasons for judgment.

25 In a different case from the present one the Tribunal's understanding of the identity of the particular social group calling for consideration can be important as Mr Nair's helpful submissions recognised: see, for example, Kabir v Minister for Immigration and Multicultural Affairs [2001] FCA 968; appeal dismissed at [2002] FCAFC 20; special leave to appeal granted on 11 October 2002 sub nom Applicant S114 of 2002 v Minister for Immigration and Multicultural Affairs and Applicant S115 of 2002 v Minister for Immigration and Multicultural Affairs.

26 It may be that in the circumstances of a particular case the Tribunal will be required to consider an identification of the "particular social group" in question which differs from that proposed by the applicant.

27 The interesting and difficult questions which can arise in connection with the Convention concept of a particular social group do not arise on this appeal because of the Tribunal's factual findings adverse to the appellants identified by the presiding judge, and referred to by me above.

I certify that the preceding six (6)

numbered paragraphs are a true copy

of the Reasons for Judgment herein of

The Honourable Justice Lindgren.

Associate:

Dated: 10 March 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 873 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAEH OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE:	27 FEBRUARY 2003
PLACE	SYDNEY

REASONS FOR JUDGMENT

FINKELSTEIN J:

28 I agree in the reasons of French J and the additional observations of Lindgren J.

I certify that the preceding one (1)

numbered paragraph is a true copy of the

Reasons for Judgment herein of the

Honourable Justice Finkelstein.

Associate:

Dated: 10 March 2003

Counsel for the Appellants:	Mr Radha Nair
Counsel for the Respondent:	Mr Neil Williams SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing: Date of Judgment:	27 February 2003 27 February 2003