FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 03 August 2022
• Neutral Citation: [2022] FCA 894
• Date: 03 August 2022

Federal Court of Australia

FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 894

Appeal from:	FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 3
File number:	NSD 1094 of 2021
Judgment of:	MARKOVIC J
Date of judgment:	3 August 2022
Catchwords:	MIGRATION – appeal from Federal Circuit and Family Court of Australia – where the second respondent (Tribunal) was required to comply with Ministerial Direction No 84: Consideration of Protection Visa Applications – whether Direction No 84 required the Tribunal to consider the most recent country information report – whether the Tribunal should have considered a superseded country information report published more proximate to a particular event – where Direction No 84 requires the Tribunal to consider the most recent country information report – appeal dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 BYH19 v Minister for Immigration and Border Protection [2021] FCA 157 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	67
Date of hearing:	4 May 2022
Counsel for the Appellants:	Dr S Tully
Solicitor for the Appellants:	Executive Legal
Counsel for the First Respondent:	Mr T Liu
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		NSD 1094 of 2021
BETWEEN:	FFR19 First Appellant ; FFS19 Second Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	MARKOVIC J
DATE OF ORDER:	3 August 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1. This is an appeal from orders made by the Federal Circuit and Family Court of Australia dismissing an application for judicial review of a decision of the second respondent (Tribunal): see FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 3. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant protection visas to the appellants.

background

2. The first and second appellants are respectively husband and wife and are citizens of Iran.

3. On 24 March 2015 the appellants applied for protection (Class XA) visas. Each of the husband and wife raised protection claims although the wife was listed as a member of the husband’s family unit.

4. In their applications to the Minister’s department the husband’s claims for protection were based on his religion and as a member of a particular social group, namely people who have been extorted by the Basij and the Sepah and coerced into doing further illegal acts to avoid criminal persecution. In relation to the latter, the husband claimed that he had been found to be in possession of alcohol and as a result was extorted for money. He said that he had purchased some alcohol on his way home after work and, after doing so, he stopped off at the chemist in his neighbourhood. At the time he was wearing a suit, tie and green sweater. He was detained and threatened by the Basij and agreed to pay money to his captors to ensure his release.

5. In a submission dated 24 March 2015 provided on behalf of the appellants, under the heading “Westernised” Iranians and “Immoral Behaviour”, the appellants’ representative quoted from a Department of Foreign Affairs and Trade (DFAT) country information report dated 29 November 2013 (2013 DFAT Report) at cl 3.60 as follows (emphasis in original):

‘Westernised’ Iranians an ‘Immoral Behaviour’

3.60 Authorities can take a heavy-handed approach when they periodically enforce standards of Islamic conduct in the community, including Islamic dress and public appearances with non-family members of the opposite sex. Enforcement can be unpredictable and may be related to the prevailing political atmosphere of the time. It is therefore difficult to make an overall assessment of the treatment of ‘Westernised’ Iranians. However, it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress and behaviour.

6. On 10 November 2016 a delegate of the Minister informed the appellants that their applications for protection visas had been refused. The delegate had “doubts that the [first appellant] encountered problems with the Basij”. The delegate referred to the husband’s claim to have been wearing a tie and green sweater at the time he had alcohol in his car. As to that the delegate said:

I note that the sale of ties were banned in Iran after the 1979 revolution, as they were reportedly viewed as a symbol of western decadence, and although often ignored, religious police have enforced the ban, and nearly all men in Iran do not wear ties. Furthermore, I have noted that the colour green is strongly associated with support of the ‘Green Movement’ (Persian: Jonbesh-e Sabz), a large opposition protest movement which rose up spontaneously in June 2009 against the apparently rigged re-election of Ahmadinejad as President, adopting the Green campaign colour of Mir Hussein Mousavi, who they perceived as being the true winner of the election.

(Footnotes omitted.)

7. On 1 December 2016 the appellants sought review of the delegate’s decision in the Tribunal.

8. On 2 September 2019 the appellants’ representative provided a submission to the Tribunal and on 9 September 2019 the appellants appeared before the Tribunal.

9. On 22 November 2019 the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

10. The Tribunal set out the evidence and submissions made by the appellants, both to the Minister’s delegate and to it: at [9]-[75].

11. It then turned to consider the appellants’ claims, first addressing the husband’s claims. In doing so it commenced by noting the need for balance when considering an applicant’s account of events and assessing details and inconsistences in evidence. It also acknowledged the medical evidence before it in relation to treatment of the husband for mental health issues but noted that the husband had indicated that “he had no health issues that would preclude him from attending the hearing”. The Tribunal observed that the inconsistences or implausibilities...