ACA16 v Minister for Immigration
[2017] FCCA 2074
•3 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACA16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2074 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a protection visa – applicant granted protection as a stateless Faili Kurd – applicant subsequently travelling to Iran on a valid Iranian passport issued in his own name – whether the Tribunal erred by overlooking relevant considerations or relevant material or by failing to make enquiries considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 46A, 97, 99, 100, 101, 107, 108, 109, 425, 427, 476 Financial Transactions Reports Act 1988 (Cth) |
| Cases cited: Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16 Applicant WAEE v Minister for Immigration [2003] FCAFC 184 King v Burgess; Ex Parte Henry (1936) 55 CLR 608 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Sandoval v Minister for Immigration [2001] FCA 1237 Sykes v Cleary (No.2) (1992) 176 CLR 77 |
| Applicant: | ACA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 48 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Treisman of Chandlers International Lawyers |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 30 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 48 of 2016
| ACA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 December 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s subclass 866 protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant claimed to be born in the city of Ilam in the Islamic Republic of Iran (Iran).[1] He is a Faili Kurd and practises Shia Islam.[2] He entered Australia as an “unauthorised maritime arrival”, as that expression is defined in s.5AA of the Migration Act 1958 (Cth) (Migration Act), on 1 April 2010.[3]
[1] Court Book (CB) 3
[2] CB 6
[3] CB 83
On 5 May 2010, the applicant participated in an interview with an officer in the Minister’s Department (Department).[4] At that interview, the applicant claimed to be stateless[5] and to have left Iran because of a “lack of identity” and because he claimed to have “no rights whatsoever” as a Kurd.[6] He claimed that he would be harassed and insulted by the Basij[7] by reason of his ethnicity.[8]
[4] CB 11
[5] CB 3
[6] CB 11
[7] A paramilitary militia commonly known as the “morals police”
[8] CB 11
The applicant repeated these claims in a statement dated 26 June 2010.[9]
[9] CB 29-30
On 28 June 2010, the applicant requested a Refugee Status Assessment (RSA), a process which unauthorised maritime arrivals had to undergo at that time if they wished to be recognised as persons to whom Australia owed protection under the Refugees Convention as amended by the Refugees Protocol, because s.46A of the Migration Act prevented them from making valid visa applications.[10]
[10] CB 32-52
The following day, the applicant participated in an interview with the RSA officer.[11] At that interview, the applicant relevantly claimed that he was stateless because his parents, who were born in Iraq and were expelled by Saddam Hussein in 1980, entered Iran without any identity documents.[12]
[11] CB 83
[12] CB 84
On 2 August 2010, the RSA officer found that the applicant was not a person to whom Australia owed protection obligations.[13]
[13] CB 83-101
The applicant subsequently sought an independent merits review of the RSA officer’s adverse assessment.
On 19 April 2011, an Independent Merits Reviewer (Reviewer) made a recommendation to the Minister that the applicant be recognised as a refugee.[14] In her report, the Reviewer found that the applicant’s parents were born in Iraq;[15] that the applicant would not be granted Iraqi nationality or citizenship due to a lack of documentary material in his possession;[16] that neither the applicant, nor his parents, held documentation which would prove a right to nationality in either Iraq or Iran;[17] that the applicant could not claim nationality in either country and was therefore stateless;[18] that the applicant was a truthful and credible witness;[19] that the applicant had suffered persecution by reason of his race and imputed political opinion; and that the applicant would suffer persecution for those reasons if he were to return to Iran.[20]
[14] CB 115-137
[15] CB 131 [86]
[16] CB 132 [86]
[17] CB 132 [87]
[18] CB 132 [87]
[19] CB 132 [90]
[20] CB 132 [90], 133 [94], 134 [99], 135 [102], 136-137 [106]-[109]
On 12 June 2011, having received a positive recommendation from the Reviewer, the applicant applied for a protection visa.[21] In his application form, the applicant indicated that his citizenship at birth was “stateless” and that he was “born stateless”.[22] The applicant further claimed to be seeking protection in Australia so that he would not have to go back to Iran[23] and claimed that he “d[id] not hold any valid travel documents”.[24]
[21] CB 138-164
[22] CB 149 (Q19, Q23)
[23] CB 154 (Q41)
[24] CB 158 (Q53); see also CB 150 (Q28)
The applicant was granted a protection visa on 22 June 2011.[25]
[25] CB 166
In July 2012 the applicant borrowed $25,000.
In December 2013 an Iranian passport was issued to the applicant by the Iranian embassy in Canberra.
The applicant used this Iranian passport to enter and exit Iran between March 2014 and June 2014.
Upon his return to Australia on 24 June 2014, the applicant was found in possession of this Iranian passport.[26]
[26] CB 167-168
On 29 July 2014, the delegate issued to the applicant, pursuant to s.107(1) of the Migration Act, a Notice of Intention to Consider Cancellation (NOICC) of his protection visa under s.109.[27] In that notice, the delegate stated that she considered that the applicant had not complied with s.101(b) of the Migration Act, in that he had not filled in or completed his protection visa application form in such a way that no incorrect answers were given or provided in relation to his claim to be a stateless person.[28] The NOICC drew to the applicant’s attention the fact that he had been on a trip to Iran from 19 March to 24 June 2014 on a valid Iranian passport that had been issued to him by the Iranian Embassy in Australia on 9 December 2013.[29] That passport indicated that he had arrived at, and departed from, Imam Khomeini International Airport in Tehran.[30]
[27] CB 179-189
[28] CB 179
[29] CB 181-182
[30] CB 182
The applicant responded to the NOICC on 30 September 2014.[31] He provided further submissions to the delegate on 3 October 2014.[32]
[31] CB 219-243
[32] CB 244-247
On 26 November 2014, the applicant underwent an International Treaties Obligation Assessment (ITOA) and was found not to be a person to whom Australia owed protection.[33] In the light of the information that had come to the Department’s attention, the ITOA was based on the applicant not being a stateless person.
[33] CB 248-257
On 7 January 2015, the Department wrote to the applicant to advise him of a change to regulation 2.41(c) of the Migration Regulations 1994 (Cth) (Regulations) and invited him to make submissions.[34] The applicant did so on 21 January 2015.[35]
[34] CB 258-260
[35] CB 261-270
On 15 May 2015, the delegate made a decision, pursuant to s.109(1) of the Migration Act, to cancel the applicant’s protection visa, having found that the applicant did not comply with s.101(b) in so far as he stated, in his protection visa application form, that his citizenship at birth was “stateless”[36] and that he “was born stateless”.[37]
[36] CB 149 (Q19)
[37] CB 149 (Q23); CB 278-292
Merits review
The applicant sought review of the delegate’s decision in the Tribunal on 28 May 2015.[38] Between 20 July and 9 November 2015 he provided several written submissions, statements, letters from friends and colleagues, and country reports in support of his application for review.[39]
[38] CB 298-305
[39] CB 327-332, 363-491, 498-511
In the meantime, on 14 October 2015, the applicant attended a hearing, to which he was invited pursuant to s.425(1) of the Migration Act, at which he gave evidence and presented arguments in relation to the issues arising on the review.[40]
[40] CB 520 [3]
On 7 December 2015, the Tribunal affirmed the delegate’s decision to cancel the applicant’s protection visa.[41] The Tribunal’s findings and reasons may be summarised as follows:
·the Tribunal considered it “highly implausible” and did not accept that a stateless Faili Kurd “would be able to [e]ffect the preparation of the necessary documents to facilitate the issue of a genuine Iranian passport”.[42] In this connection, the Tribunal had regard to country information that suggested that “the issue of a passport requires the production of a number of critical identity documents and that any fraudulently obtained passport or fraudulently obtained genuine passport will be identified through sophisticated border procedures at Imam Khomeini International Airport”;[43]
·the applicant “is not of interest to the Iranian authorities and is in fact an Iranian citizen and not a stateless Faili Kurd as claimed”;[44]
·the Tribunal found that “the passport that the applicant used to travel to Iran in 2014 was not obtained fraudulently using fraudulently obtained identity documents”. Rather, it was a “genuine Iranian passport obtained using authentic documents issued to the applicant as an Iranian citizen”;[45]
·the “overwhelming weight of the evidence” suggested that the applicant is an Iranian citizen, not a stateless Faili Kurd.[46] This conclusion was fortified by the almost 18-month delay between the time the applicant took out a personal loan (July 2012) and the time at which he was issued an Iranian passport (December 2013). The Tribunal rejected the applicant’s claim that he had obtained this loan “for the purpose of [e]ffecting the issue of [his] passport”.[47] It also rejected his claim that he had to return to Iran “urgently” in order to marry his now wife, given the significant delay between the time he first made contact with the Iranian Embassy in Australia and when he was issued his passport.[48] The Tribunal did not accept that the delay was explained by “the need for all the required documents necessary to secure the issue of the passport to be obtained by the applicant’s contact in Iran”;[49]
·the Tribunal found that the applicant is an Iranian citizen “as evidenced by his ability to apply for a passport in his own name citing his date of birth and the name of his father”;[50]
·the Tribunal found that the applicant, as an Iranian citizen, “did have access to documents and this included a national identity card and a birth certificate”.[51] The Tribunal further found that the applicant did not have a well-founded fear of persecution or that he feared significant harm on his return to Iran;[52]
·the Tribunal, having considered the applicant’s response to the NOICC as required by s.108(a) of the Migration Act, concluded that there was non-compliance with s.101(b) “in the way described in the [NOICC]”.[53] The Tribunal found that the applicant “is an Iranian citizen” and that “his answers to questions in his protection visa application relating to his citizenship were incorrect”.[54]
[41] CB 519-541
[42] CB 536 [84]
[43] CB 536 [84]; see also at CB 536 [85]
[44] CB 536 [85]
[45] CB 536 [86]
[46] CB 536 [86]
[47] CB 536 [87]
[48] CB 536 [87]
[49] CB 537 [87]
[50] CB 537 [88]
[51] CB 537 [89]
[52] CB 537 [89]
[53] CB 537 [90]
[54] CB 537 [90]
Having found that there was non-compliance with s.101(b) of the Migration Act in the manner described in the NOICC,[55] the Tribunal went on to consider whether it should exercise its discretion to cancel the applicant’s visa. In this regard, the Tribunal considered the applicant’s response to the NOICC[56] and the prescribed circumstances listed in regulation 2.41.[57] The Tribunal concluded that the applicant’s visa should be cancelled.[58]
[55] cf s.109(1)(a)
[56] cf s.109(1)(b)
[57] cf s.109(1)(c); CB 537-539 [91]-[103]
[58] CB 539 [104]
The current proceedings
These proceedings began with a show cause application lodged on 11 January 2016. The applicant now relies upon an amended application filed on 30 June 2016. The grounds in that application are:
1. The [Second] Respondent fell into jurisdictional error by reason of which the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958.
a. Particulars:
i. The [Second] Respondent erred by assuming the Iranian Passport issued to the Applicant in Canberra on 9 December 2013 to be conclusive evidence of the Applicant’s nationality from birth, or at least prior to 26 June 2010, being the date on which the Applicant declared to the [Second] Respondent that he was Stateless.
ii. The [Second] Respondent erred by failing to consider the municipal laws of Iran with regard to nationality.
iii. The [Second] Respondent erred by failing to consider the evidence before it that a third party, for consideration, procured and sent Iranian government ministry reference numbers to the Applicant to enable the Applicant to apply for and receive a travel document from the Iranian embassy in Canberra.
iv. The [Second] Respondent erred by failing to consider the Applicant’s lack of education and lack of intention to acquire Iranian nationality.
2. The Second Respondent fell into jurisdictional error by reason of which its decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958.
a. Particulars:
i. The Second Respondent erred by not considering the claim of the Applicant before it that although he had applied for an Iranian travel document at the Iranian Embassy in Canberra, the Iranian government ministry reference numbers used by him in support of that application had been obtained in Iran by a third party on false pretences and sent to him from Iran, and that he was not an Iranian national and should not be treated as such.
ii. The Second Respondent erred by acting on the Iranian passport issued to the Applicant in Canberra on 9 December 2013 at face value, determining it to be conclusive evidence of the Applicant’s Iranian nationality from birth, or at least prior to 26 June 2010, being the date on which the Applicant declared to the First Respondent that he was Stateless.
iii. The Second Respondent erred by failing to consider the municipal laws of Iran with regard to nationality, which, according to the evidence before the Second Respondent, is not automatically provided at birth to a person in the Applicant’s circumstances and, if applied for and, further, if granted, does not have retrospective effect.
iv. The Second Respondent erred by failing to exercise its powers of inquiry under s 427(1)(d) of the Act to ascertain from the Iranian authorities whether, in the Applicant’s circumstances, the Applicant had from birth, or at least prior to 26 June 2010, obtained Iranian nationality, and whether he would at that time have qualified for protection by the Iranian state, thereby satisfying the basis for cancellation of his Subclass 866 (Protection) Visa relied upon by the First Respondent.
v. The Second Respondent erred by failing to exercise its powers of inquiry under s 427(3)(c) of the Act to ascertain from the Applicant whether he had in fact undertaken any of the steps required by Iranian municipal law to be undertaken by a person in the Applicant’s circumstances in order to apply for Iranian nationality.
Ground 1 of the amended application as drafted had sought judicial review of the decision of the delegate. The applicant conceded the Court’s lack of jurisdiction in relation to that decision as a “primary decision” as defined in the Migration Act and I granted leave for the applicant to amend in court the first ground, to identify the second respondent (the Tribunal). The result is that there is a very substantial overlap between the first and second grounds.
I have before me as evidence the book of relevant documents filed on 31 March 2016. I declined to receive an affidavit made by the applicant on 28 June 2016 which makes lengthy and detailed factual assertions in relation to the cancellation of his visa. To the extent that these matters were put to the Tribunal, they do not need to be repeated. To the extent that they were not put to the Tribunal, they cannot assist me in determining whether the Tribunal fell into jurisdictional error.
The representatives of the applicant and the Minister filed written submissions and also made oral submissions at the trial of this matter on 30 August 2017.
Consideration
The legislation
At all relevant times, s.101(b) of the Migration Act provided that a non-citizen:
must fill in or complete his or her application form in such a way that … no incorrect answers are given or provided.
Section 97 defined an “application form” as:
a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
Section 99 relevantly provided that:
[a]ny information that a non-citizen gives or provides, or causes to be given or provided, or that is given or provided on his or her behalf, to the Minister [or] an officer … in relation to the non-citizen’s application for a visa is taken for the purposes of section 100 [and] paragrap[h] 101(b) … to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Section 100 made clear that an answer could be incorrect even if the person who gave or provided the answer, or caused the answer to be given or provided, “did not know that it was incorrect”. Put another way, an answer could be incorrect whether or not the person who gave that answer knew it to be so.
Section 107(1) conferred power on the Minister to give a visa holder a NOICC if he considered that the holder of a visa had not complied with, relevantly, s.101.
Section 108 imposed a duty on the Minister to consider any response given by a visa holder to a NOICC and to decide whether there had been non-compliance by him or her in the way described in that notice.
Section 109(1) provided that the Minister “may” cancel a visa after deciding under s.108 that there had been non-compliance by the holder of a visa, considering any response to the notice about the non-compliance, and having regard to any prescribed circumstances.
At all relevant times, regulation 2.41 listed those circumstances prescribed for the purposes of s.109(1)(c) of the Migration Act. It relevantly provided:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
…
(c) whether the decision to grant a visa … was based, wholly or partly, on incorrect information …;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
Applicant’s contentions
The applicant submits that the cancellation of the protection visa is based on the applicant’s statement that he was not a citizen of Iran (or anywhere else) in his protection visa application on 26 June 2010.
The question before the Tribunal was simply whether the applicant was a citizen of Iran on or before 26 June 2010.[59]
[59] Sandoval v Minister for Immigration [2001] FCA 1237
This question is determined according to the relevant municipal laws of the country in question, namely Iran.[60]
[60] King v Burgess; Ex Parte Henry (1936) 55 CLR 608; Sykes v Cleary (No.2) (1992) 176 CLR 77
A passport is a travel document and not determinative of the question of citizenship.[61]
[61] VSAB v Minister of Immigration [2006] FCA 239
Between 26 June 2010 and 22 June 2011, in deciding whether to grant a protection visa, the Minister is said to have accepted that, under Iranian law, a person does not acquire Iranian citizenship by birth, but rather upon application for such citizenship. At that time, the Minister is also said to have accepted that while the applicant was not a citizen of Iran in 2011, the applicant may have had the ability to apply for Iranian citizenship at that time, and therefore, by implication, at any time thereafter. The applicant contends that he did not provide false information or mislead the Minister in this regard.
The Tribunal is said to have fallen into jurisdictional error by assuming that the applicant’s payment of money to a person in Iran resulting in the issue of the Iranian passport in 2013 had meant that the applicant had applied for and been granted citizenship of Iran on or before 26 June 2011 (a proposition previously considered and rejected by both delegates of the Minister).
Alternatively, the Tribunal is said to have mistakenly applied Australian law instead of Iranian law to the question of citizenship, the former law granting citizenship by birth.[62]
[62] WZAQH v Minister for Immigration & Anor [2013] FCCA 182
The Tribunal is also said to have failed to consider the true intention of the applicant when arranging for an Iranian passport to be issued to him by “irregular means” during 2013 and to have imputed an intention to acquire citizenship of Iran.[63]
[63] Applicant WAEE v Minister for Immigration [2003] FCAFC 184; Nottebohm (Liechtenstein v Guatamala) [1955] ICJ Rep 4; NBKE v Minister for Immigration [2007] FCA 126
The Tribunal is said to have failed to investigate the apparent inconsistencies on the face of the passport as to the applicant’s place of birth, his father’s name and his date of departure from Iran, and consequently failed to exercise its powers of enquiry under s.427(1)(d) of the Migration Act to ascertain whether the Iranian embassy in Canberra issued the document and to confirm the existence of underlying identity documents it relied upon in making its determination. [64]
[64] Financial Transactions Reports Act 1988(Cth); NBKE v Minister for Immigration [2007] FCA 126; Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16
Finally, the Tribunal is said to have fallen into jurisdictional error in giving undue weight with regard to citizenship to the evidentiary value of a passport, and not taking into account all the circumstances of the case, in particular the reasons for the applicant’s travel to Iran and the necessity to obtain a travel document to enable him to do so. [65]
[65] Applicant WAEE v Minister for Immigration [2003] FCAFC 184
Minister’s contentions
The Minister submits that Ground 1, as amended to identify the Tribunal decision, does not add anything to Ground 2.
The Minister submits that the particulars to Ground 2 assert a series of unconnected errors, but none is developed in the applicant’s outline of submissions filed on 17 August 2017. Those submissions contain general references to case law and are said to mischaracterise the Tribunal’s findings.
Contrary to the applicant’s submissions, while the Tribunal may not have referred, in terms, to a 2005 report published by the Australian Department of Foreign Affairs and Trade (DFAT) to which the RSA officer did refer in his report, it nevertheless referred to more recent country information published by DFAT[66] and accepted at [85][67] that “there is evidence of corruption in Iran”. This, however, was insufficient to overcome those matters described by the Tribunal at [84]-[86][68] which indicated that the applicant was an Iranian citizen.
[66] CB 536 [84]. As it is required to do: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
[67] CB 536
[68] CB 536
The applicant contends that the Tribunal “did not have regard to several inconsistencies and geographic improbability on the face of the Iranian passport that would necessitate further enquiry if considered in light of Australian best practice for verifying identity as set out in the Financial Transactions Reports Act 1988 (Cth)” (Financial Transactions Reports Act). The applicant criticises the Tribunal for having made “[n]o enquiries … before reaching its decision”. It is unclear what relevance the Financial Transactions Reports Act has to the Tribunal’s review of the delegate’s decision under Part 7 of the Migration Act, what “inconsistencies and geographic improbability” arose “on the face of the Iranian passport”, and what further enquiries had to be conducted by the Tribunal.[69]
[69] Presumably of the kind described in Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at 1129 [25]
The applicant’s submissions take issue with the weight placed by the Tribunal upon his having obtained a genuine passport in his name from the Iranian Embassy in Australia. The weight to be given to an item of evidence raises a question of fact for the Tribunal and cannot generally be the subject of a complaint in judicial review proceedings instituted under s.476(1) of the Migration Act.[70]
[70] Minister for Immigration v SZJSS (2010) 243 CLR 164 at 176-177 [32]-[36] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
The Minister submits, contrary the applicant’s submissions, that the Tribunal was under no obligation to exercise its power under s.427(1)(d) of the Migration Act with respect to the applicant’s access to a national identity card and a birth certificate. That is said to be so for two reasons. First, the discretionary power in s.427(1)(d) does not carry with it a duty to consider its exercise.[71] Secondly, nothing about this particular case could give rise to a duty on the Tribunal’s part to make particular enquiries. The applicant himself gave evidence that his “contact in Iran” was able to effect the production of a birth certificate and a national identity card.[72] That eliminated the need for the Tribunal to make any further enquiries into the matter.
[71] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 603 [22] per French CJ and Kiefel J
[72] CB 535 [82]
The Minister further submits that the applicant’s submissions do not accurately state the question that the Tribunal was required to address on the review. It was not “whether or not the applicant was a citizen of Iran on or before 26 June 2010”; rather, it was whether the applicant did not comply with s.101(b) of the Migration Act when he said in his protection visa application that he was stateless, and, if so, whether the Tribunal should exercise its discretion to cancel his protection visa. The Tribunal was required to answer these questions by reference to Australian, not Iranian, law, contrary to the applicant’s submissions. That law relevantly comprised the provisions of the Migration Act and the Regulations.
The Minister also submits that the applicant’s submissions are an appeal to the merits. The applicant’s “true intention” and whether he did, in fact, provide incorrect information in his protection visa application are questions of fact for the Tribunal. Furthermore, the applicant’s submissions are said to misstate his case before the Tribunal and do not fairly characterise the Tribunal’s reasons. At no time was it a part of the applicant’s case that he had acquired Iranian citizenship after applying for a protection visa. Contrary to what appears to be suggested by the applicant, the Tribunal did not make a jurisdictional error by not making findings as to whether he could have acquired citizenship sometime after his birth. That question never arose.
Finally, contrary to the applicant’s submissions, the Minister submits that at no time did the Tribunal proceed on the basis that a passport is “determinative of the question of citizenship”. The Tribunal acknowledged as much at [72].[73] The effect of the Tribunal’s findings is that the applicant is an Iranian citizen not because a passport is conclusive proof of citizenship, but because the evidence as a whole indicated that the Iranian authorities considered him to be a citizen by issuing a genuine passport to him.
[73] CB 534
Resolution
I prefer the Minister’s submissions in respect of the grounds of review advanced. In my opinion, the Tribunal did not fall into jurisdictional error. While reasonable minds might differ about the merits of the applicant’s efforts to persuade the Tribunal that his visa should not be cancelled, the Tribunal engaged in a logical analysis of whether the applicant had provided incorrect information in support of his protection visa application and whether the visa should be cancelled. The conclusions reached by the Tribunal were open to it on the material before it. The Tribunal gave full and careful consideration to the various assertions made by the applicant but was not persuaded by them. The Tribunal had regard to country information about the acquisition of Iranian nationality and also to country information about document fraud in Iran.[74] It reasoned that the applicant could not have obtained a valid Iranian passport in his own name without furnishing an authentic birth certificate, an authentic national identity card, a military clearance and evidence of the date on which he last left Iran.
[74] CB 530 at [49] and 536 at [84]
While it is true that there is inconsistency between the details in the birth certificate apparently used by the applicant and earlier information provided to Australian authorities, that says nothing about which piece of information was the more accurate. The Tribunal was entitled to conclude that the applicant was not stateless as he had claimed in his protection visa application but was a national of Iran. While the applicant asserts that the Tribunal should have engaged in further enquiries into that question, it is not apparent to me that there is any obvious enquiry which could have been readily made and which might have been determinative that would not have involved the Australian authorities dealing directly with the Iranian authorities and identifying the applicant in the process, which may have placed him at risk.
The applicant might have assisted his cause if he had been able to furnish to the Tribunal the documents those assisting him in Iran had provided to the Iranian authorities in order to obtain the Iranian visa. He claimed, however, that he did not have access to any of those documents. The Tribunal was left with three possible scenarios: the first was that the applicant was an Iranian citizen and had been untruthful in his protection visa application; the second was that the applicant was stateless and had fraudulently obtained a genuine Iranian passport for the purposes of travelling to Iran; and the third was that the applicant was stateless when he applied for protection but had acquired Iranian nationality subsequently, which had enabled him to obtain a valid Iranian passport. Nobody advanced before the Tribunal the third possible scenario. The Tribunal was entitled to conclude that the first scenario was more likely than the second. No jurisdictional error arises from the Tribunal’s consideration of the matter.
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 October 2017
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