CTY15 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: PERRY J
• Judgment Date: 25 February 2019
• Neutral Citation: [2019] FCA 197
• Date: 25 February 2019

FEDERAL COURT OF AUSTRALIA

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

Appeal from:	CTY15 v Minister for Immigration [2017] FCCA 282
File number:	NSD 1345 of 2017
Judge:	PERRY J
Date of judgment:	25 February 2019
Catchwords:	MIGRATION – where Federal Circuit Court dismissed application seeking judicial review of decision by the Administrative Appeals Tribunal affirming the decision not to grant protection visas to the appellants – whether appellant wife implicitly claimed to fear harm as an Iranian female who does not wish to abide by the laws of Islamic extremism, including the dress code – where implied claim arose squarely from the material before the Tribunal – where claim not considered by the Tribunal – where failure to consider claim was material – appeal allowed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Date of hearing:	21 May 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Appellants:	Mr J Williams
Solicitor for the Appellants:	Barriston Lawyers
Counsel for the First Respondent:	Mr H P T Bevan
Solicitor for the First Respondent:	DLA Piper

ORDERS

		NSD 1345 of 2017
BETWEEN:	CTY15 First Appellant ; ADM15 Second Appellant ; ADN15 Third Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	PERRY J
DATE OF ORDER:	25 February 2019

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:

   1. 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

   2. 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]
2 BACKGROUND	[7]
2.1 Relevant statutory framework	[7]
2.2 The application for a protection visa and appellants’ claims	[13]
2.3 The delegate’s decisions	[20]
2.4 The applications for review of the delegate’s decisions by the Tribunal	[28]
2.5 The Tribunal’s decision	[32]
2.6 The decision in the FCC	[45]
3 CONSIDERATION	[47]
4 CONCLUSION	[57]

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,...