Relevant facts:

Mrs Mardini was born in Iran, and is a stateless Faili Kurd. She claimed she was
discriminated against in Iran, with limited access to education, Government jobs or other
permission to work lawfully, access to health services, and so on. She was married to a local
Iranian muslim man who strike her with the back of his hand and lock her in the bedroom.
She arrived Australia and detained in immigration detention and have lodged an application
under the Migration Act 1958 (the Act). An applicant for a protection visa.

Issue:

Is Mrs Mardini meet the United Nations definition of a refugee, as defined in the 1951
Convention Relating to the Status of Refugees and its 1967 Protocol (Refugees Convention)
and; have met the Complementary Protection criteria as specified in Australian Migration
Act 1958.

Under s.65(1) of the Act a visa may be granted only if the decision maker is satisfied that the
prescribed criteria for the visa have been satisfied. The phrase ‘in respect of whom …
Australia has protection obligations under the Refugees Convention’ in subsection36(2)(a) of
the Act describes a person who is a refugee within the meaning of Article 1 of the
Convention. 1Whether Australia has protection obligations under s.36(2)(a) depends upon
whether a person satisfies the definition in Article 1A(2), in the context of other provisions
of Article 1. 2

"Refugees Convention" and "Refugees Protocol" are defined in the 1951 Convention
Relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees
respectively: s.5(1) of the Act.

Australia was the sixth state to ratify or accede to the Refugee Convention, doing so on 22
January 1954 with effect from 22 April 1954. 3 Australia’s accession to the Protocol Relating

1
Nagw v Mimia (2005) 222 CLR 161.
2
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Caseload Legacy) Bill 2014 p.170 at 1173.
3
Australian Treaty Series, 1954, No 5. NAGV v Minister for Immigration, Multicultural and
Indigenous Affairs (2005) 222 CLR 161, [35] (Gleeson CJ, McHugh, Gummon, Hayne, Callinan
to the Status of Refugees took effect from the date of its accession (13 December 1973). 4
Generally speaking, has protection obligations to people who are refugees as defined in
them.

In the case of Simsek a single judge of the High Court (StephenJ) applied the accepted
general proposition in Australian law that in the absence of legislation a treaty is of no effect
domestically to find the Refugee Convention had no legal effect in municipal law upon the
rights and duties of individuals and of the Commonwealth.5 (Refugee status determination
was a matter within the discretion of the Executive (being the Minister for Immigration and
Ethnic Affairs assisted by an Interdepartment Committee.)6

Definition of “Refugee”

The Convention defines a refugee in Article 1 A (2) as a person outside their home country
who, owing to a well-founded fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinion is unwilling or unable to return.

The High Court has considered this definition in a many of cases, as such; Chan Yee Kin v
Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A & Anor v Minister
for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, Minister for Immigration &
Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, Chen Shi Hai v Minister for Immigration &
Multicultural Affairs (2000) 201 CLR 293, Minister for Immigration & Multicultural Affairs v
Haji Ibrahim (2000) 204 CLR 1, and Minister for Immigration & Multicultural Affairs v
Khawar (2002) 187 ALR 574.

Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes
of the application of the Act and the regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be
outside his or her country.

and Heydon JJ).

4
Australian Treaty Series, 1973, No 37.
5
Simsek v MacPhee (1982) 148 CLR 636.
6
R v Liveris Ex parte da Costa, Andrade & Teixeira (1962) 3 FLR 249. Minister for Immigration
and Ethnic Affairs v Mayer (1985) 157 CLR 290.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must
involve "serious harm" to the applicant (s 91R(1)(b)), and systematic and discriminatory
conduct (s 91R(1)(c)). The expression "serious harm" includes, for example, a threat to life
or liberty, significant physical harassment or ill-treatment, or significant economic hardship
or denial of access to basic services or denial of capacity to earn a livelihood, where such
hardship or denial threatens the applicant's capacity to subsist: s 91R(2) of the Act. The High
Court has explained that persecution may be directed against a person as an individual or as
a member of a group. The persecution must have an official quality, in the sense that it is
official, or officially tolerated or uncontrollable by the authorities of the country of
nationality. However, the threat of harm need not be the product of government policy; it
may be enough that the government has failed or is unable to protect the applicant from
persecution.7

Further, persecution implies an element of motivation on the part of those who persecute
for the infliction of harm. People are persecuted for something perceived about them or
attributed to them by their persecutors. However, the motivation need not be one of
enmity, malignity or other antipathy towards the victim on the part of the persecutor. 8

Third, the persecution which the applicant fears must be for one or more of the reasons
enumerated in the Convention definition? race, religion, nationality, membership of a
particular social group or political opinion. The phrase "for reasons of" serves to identify the
motivation for the infliction of the persecution. The persecution feared need not
be solely attributable to a Convention reason. However, persecution for multiple
motivations will not satisfy the relevant test unless a Convention reason or reasons

‘Australia: Refugee Review Tribunal’, Refworld (Web Page, 12 January 2020)

<https://www.refworld.org/cases,AUS_RRT,43cb77a84.html>.

‘Australia: Refugee Review Tribunal’, Refworld (Web Page, 12 January 2020)

<https://www.refworld.org/cases,AUS_RRT,43cb77a84.html>.
constitute at least the essential and significant motivation for the persecution feared:
s.91R(1)(a) of the Act.9

Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded"

fear. This adds an objective requirement to the requirement that an applicant must in fact
hold such a fear. A person has a "well-founded fear" of persecution under the Convention if
they have genuine fear founded upon a "real chance" of persecution for a Convention
stipulated reason. A fear is well-founded where there is a real substantial basis for it but not
if it is merely assumed or based on mere speculation. A "real chance" is one that is not
remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of
persecution even though the possibility of the persecution occurring is well below 50 per
cent.10

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail
himself or herself of the protection of his or her country or countries of nationality or, if
stateless, unable, or unwilling because of his or her fear, to return to his or her country of
former habitual residence. Whenever the protection of the applicant's country is available,
and there is no ground based on well-founded fear for refusing it, the person concerned is
not in need of international protection and is not a refugee. 11

‘Australia: Refugee Review Tribunal’, Refworld (Web Page, 12 January 2020)

<https://www.refworld.org/cases,AUS_RRT,43cb77a84.html>.

10

‘Australia: Refugee Review Tribunal’, Refworld (Web Page, 12 January 2020)

<https://www.refworld.org/cases,AUS_RRT,43cb77a84.html>.

11

‘Australia: Refugee Review Tribunal’, Refworld (Web Page, 12 January 2020)

<https://www.refworld.org/cases,AUS_RRT,43cb77a84.html>.
Whether an applicant is a person to whom Australia has protection obligations is to be
assessed upon the facts as they exist when the decision is made and requires a
consideration of the matter in relation to the reasonably foreseeable future. 12

The applicant claims:

 She was a stateless Faili Kurd, born in Iran to displaced Iraqi-born parents.
 she was discriminated against in Iran, with limited access to education, Government
jobs or other permission to work lawfully, access to health services, and so on.
 her family’s Green Card lapsed in 2008, the Iranian authorities refused to issue
further cards to her family, for no stated reason.
 Her mother died when she was younger. Neither of her parents had their Iraqi
citizenship reinstated before their deaths.
 She could no longer work legally and was unable to find work to support herself or
her younger siblings.
 She was forced to enter into a marriage with a local Iranian man in order to support
her siblings. Her marriage was a very unhappy one.
 Her husband was a strict Muslim (she describes herself as agnostic) and did not let
her leave the home without a male escort.
 When she complained, he would strike her with the back of his hand and lock her in
the bedroom.
 She tried to apply for a new Green Card at a government office so she could work.
 the official refused her application on the basis that she did not have evidence of her
husband’s permission to work.
 She was threatened by an official and said ‘get back to your husband, or I will send
some men to take you back’.
12

‘Australia: Refugee Review Tribunal’, Refworld (Web Page, 12 January 2020)

<https://www.refworld.org/cases,AUS_RRT,43cb77a84.html>.
  She was advised that she could not divorce her husband.
 she was also advised that, as a married woman, she could not leave Iran without her
husband’s permission.
 She was subsequently refused immigration clearance and detained in immigration
detention.

Reasons

The applicant claims that if she returns in Iran she will be discriminated against, with limited
access to education, Government jobs or other permission to work lawfully, access to health
services, and so on. She also claims that she feared returning to her husband as he was strict
muslim and did not let her leave the home without a male escort. When she complained,
he would strike her with the back of his hand and lock her in the bedroom.

The High Court majority firmly rejected the majority opinions in the Full Federal Court,
derived from statements by the UNHCR and other commentators, that the test is whether
changes in the applicant’s country are ‘substantial’, ‘effective’ and ‘durable’ and the like,
and that there is an onus upon the decision maker to show that such changes have
occurred.13 Nevertheless, the Court did comment that if a non-citizen did, before entering
Australia, suffer persecution or had a well-founded fear of it in their country, unless there
have been real and ameliorative changes that are unlikely to be reversed in the reasonably
foreseeable future, then the person will probably continue to be one to whom Australia has
protection obligations.14 As was previously explained by the Federal Court, it may be difficult
to reach a conclusion that the circumstances that gave rise to a previously existing well-
founded fear have ‘ceased to exist’, if the change in circumstances were merely transitory
and could not be described as fundamental and durable. 15 Consistently with the Article
1A(2) test, changes relevant to Article 1C(5) and (6) may not necessarily extend to the whole
country: the possibility of safe relocation may mean that a previously recognised refugee no
longer has a well-founded fear for the purposes of Article 1A(2), such that Article 1C will

13
Qaah v Mimia (2005) 145 FCR 363.
14
MImia v Qaah (2006) 231 CLR 1.
15
Nbgm v Mimia (2006) 150 FCR 522.
apply.16 While there is generally no onus in administrative decision-making on either an
applicant or the decision maker, it should be borne in mind that the decision-maker will
sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions
existing in another country.17

Furthermore, Australia has maintained a regime of mandatory immigration detention since

May 1992. In Lim v Minister for Immigration (Lim) 18 The High Court found that such a regime
would be Unconstitutional if applied to Australian citizens because its penal or punitive
character would bring it with the exclusive power of the courts. However, the position of
non-citizens its different. Involuntary detention of non-citizens for the purposes of
administration, exclusion or deportation is an incident of the aliens’ power in s 51(xix) of the
Constitution. The provisions which authorised detention took their character from the
administrative purpose of the detention and remained valid as long as the detention was
limited to what was reasonably necessary to achieve the purpose. 19

Since September 1994, the Migration Act has required the detention of all unlawful non-
citizens without a valid visa. Section 189 requires an officer of the federal or State police or
the Department of Immigration and Citizenship (DIAC) to detain any person known or
reasonably suspected to be unlawful non-citizen. An unlawful non-citizen must be kept in
immigration detention pursuant to s 196 until they are granted a visa or removed from
Australia.

Although the Migration Act requires the detention of all unlawful non-citizens, the practise
has been to detain those who arrive in Australia without a valid visa, 20 most of whom arrive
by boat. People who arrive valid visas and subsequently claim protection are usually a
bridging visa which prevent them from becoming unlawful non-citizens (or remaining

16
Mimia v Qaah (2006) 231 CLR .
17
Mimia v Qaah (2006) 231 CLR 1.
18
Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176
CLR 1.
19
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176
CLR 1 32 per Brennan, Deane and Dawson JJ. At 33, Gaudon J at 57, McHugh at 71.

20
Migration Act (1958) Cth s 14.
unlawful non-citizens if their primary visa has expired) and facilitate their residence within
the community. They have not generated public hostility or concern largely because they
are not routinely detained. Detention insinuates criminal guilt. Australia’s immigration
detention facilitates house IMAs together with others who have breached Australian law,
such as overstayers,21 and IMAs are widely perceived as law-breakers themselves. The UN
Working Group on Arbitrary Detention considered that immigration detention creates a
presumption that each unlawful non-citizen presents a danger to the community. The
experience of closed detention has provided further rationalisation for the continued
demonisation of IMAs. Rioting and destruction perpetrated by some has been widely
perceived as proof of bad character and lack of entitlement to protection. Immigration
detention has thus generated and perpetuated public antithetical to the realisation of
human rights.

The Migration Act requires all unlawful non-citizens (people without a valid visa) to be
detained under subsection 189(1) of the Migration Act. However, when a person applies for
an onshore Protection visa they automatically apply for a bridging visa to give them ‘lawful’
status while their application is being processed which means that provided the criteria for
the bridging visa are satisfied, such people will not be detained.

Protection visa applicants found to be owed protection and who meet all health, character
and security requirements are granted a permanent Protection visa (subclass 866). The
number of visas granted to refugees in Australia (including persons processed on Christmas
Island) has been relatively low since 2002

Conclusion

Therefore, I submit that Mrs Mardini should be entitled for a protection visa given the
evidence above. A right to life, freedom from persecution, and adequate food and shelter
are essential for human existence. These are what many people claim are ‘essential rights’
that should apply to all of humanity regardless of ethnicity, culture or ideology. The
Universal Declaration of Human Rights proclaims a number of rights to be important ideals

21
Janet Philipps and Harriet Spinks, Immigration Detention in Australia: (Parliamentary
Library 2012).
in a humane civil society. For example, the right to free association, to marry whom one
wishes, to have freedom of movement and residence within one’s state’s borders, and to
form or join trade unions.22 Australia is obliged to protect refugees against significant risk
under the Refugees Convention.

22
John Janzekovic, The Use of Force in Humanitarian Intervention (Ashgate Publishing,
Limited 2006).