NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927

FEDERAL COURT OF AUSTRALIA

NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927 NAEH OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 195 OF 2002 BRANSON J 30 JULY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 195 OF 2002

BETWEEN: NAEH OF 2002

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 30 JULY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The adult applicants pay the respondent's costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 195 OF 2002

BETWEEN: NAEH OF 2002

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 30 JULY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

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.