AEH16 v Minister for Immigration
[2019] FCCA 34
•17 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEH16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 34 |
| Catchwords: RELEVANT CONSIDERATION – Relevant consideration whether applicants were undocumented stateless persons as claimed – Applicants’ claim to having been born in Iraq uncontroverted – Tribunal made affirmative finding of applicants’ nationality as Iranian – finding of nationality to be determined by reference to domestic law of the country of putative nationality – Tribunal ought to have given consideration to relevant DFAT information – Tribunal made no assessment of whether applicants’ met criteria for grant of Iranian citizenship – failure to take into account mandatory or relevant consideration – failure to take material into consideration not an immaterial error – jurisdictional error established. IRRATIONAL AND ILLOGICAL REASONING – Tribunal concluded applicants were not credible witnesses – high threshold for establishing irrationality and unreasonableness – Tribunal made unreasonable finding along the way – conclusion as to applicants’ credibility might have been different had factors been considered on a reasonable and rational basis – irrational and illogical reasoning established. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36, 65, 414, 430, 474, 476, 499 Migration Regulations 1994, Sch.2, pt.866, reg.1401 |
| Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1081 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 540 WZAQH v Minister for Immigration and Border Protection [2013] FCCA 182 |
| First Applicant: | AEH16 |
| Second Applicant: | AEI16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 148 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 27 June 2017 |
| Date of Last Submission: | 27 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondent: | Mr Cunynghame |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue to remove into this court for the purpose of its being quashed, the decision made by the second respondent dated 6 January 2016 to refuse to grant the applicants a Protection (Class XA) visa.
A writ of mandamus issue directed to the second respondent requiring that the application for review to be determined according to law.
The first respondent pay the applicants their costs of this application in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 148 of 2016
| AEH16 |
First Applicant
| AEI16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed 30 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 6 January 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection (Class XA) visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
Background
The applicants claim to be stateless persons who were born in Baghdad, Iraq, in 1972 and in 1976 respectively. The applicants are husband and wife who arrived in Australia on 26 July 2012. They arrived by entry at Christmas Island as unauthorised maritime arrivals.
The applicants resided briefly at the Christmas Island Immigration Centre before being granted a Bridging visa E. They currently reside in the State of Victoria.
On 18 December 2012, the first applicant filed an application for a Protection visa (visa) and included his spouse in the application as a member of his family unit. From his application it is apparent that he is of Kurdish ethnicity and of the Shia religion. A notation on the first page of the application reads ‘Illiterate’.
The first applicant made a statement of his claims dated 23 November 2012 in which he declared that:
My family departed from Iraq in 1978 because the Iraqi Government led by Saddam Hussein expelled Faili Kurds from Iraq. Hussein expelled Faili Kurdish because we were both Kurdish and Shia. The combination of Kurdish and Shia was an affront to Hussein’s Arab nationalist government and his Sunni religion.
When my family arrived in Iran, my family found that Persians were hostile towards Faili Kurd refugees from Iraq. Most Persians thought poorly of Faili Kurds because we arrived from an Arab country.
. . .
If I return to Iran, I will continue to be denied any identity documents and citizenship rights. Being stateless Faili Kurd, means I will be persecuted for my ethnicity and for lack of legal status.
I fear the Iranian authorities who discriminate and persecute Faili Kurds by denying us a range of residency and citizenship rights. Iranian laws towards Faili Kurds and the brutality of the Iranian regime means that I will experience severe hardship with access to adequate employment, medical services and education denied.
The second applicant made a statutory declaration on 8 December 2012 in which she declared that:
As a Faili Kurd, being stateless and undocumented, we are unable to obtain basic benefits such as education or medical services in Iran.
In Iran we are considered Iraqi and in Iraq we are considered Iranian.
I fear that if I were to return to Iran, I would be unable to obtain access to basic services which would affect my ability to subsist. I would also be considered a spy if I returned to Iran as I had sought protection in Australia.
The Iranian government do not provide any support for stateless and undocumented Faili Kurds and this treatment would ultimately result in serious harm for me and my husband and I would never be able to have a family and live a normal life.
The first applicant’s record of entry interview indicates that he was born and lived in Baghdad from 1972 to 1978. At the age of six, he moved to the Zayfel village, Ilam province, Iran where he remained until 2007. From 2007 until 2012, he lived in the Jafam-Abad village, Ilam province before travelling by boat to Australia.
The entry interview records also that the first applicant has had no education and had worked as an unskilled labourer from the age of 14. The interview record also stated that his parents had been killed during a bombing that occurred in 1984-85. The reason which he gave for having left Iran was that he was a Shia Kurd and had been thrown out of the country. He said that he had no right to study, no identity card, no protection and knew the consequences of not being quiet. It appears that the first applicant had been self-reliant from the age of 12 years.
The second applicant’s record of entry interview indicates that she was born in Iraq in 1976 and lived there until 1979 but could not remember Iraq. From 1979 to 2007, she had lived in the Jafam-Abad village, Ilam province before travelling to Australia. The second applicant had received some level of home schooling. She stated that she had left Iraq because she was a Shia Kurd and had then left Iran because she had no identity papers. Both of her parents have died also.
The applicants claimed to have departed Iran on fraudulent Iranian passports and to have left Iran via Imam Khomeini Airport. They claimed that their passports had been arranged for them by a smuggler. This was disclosed in their visa applications (at questions 55-56).
Included in their claims for persecution was that they had been denied identification documents and access to services such as education and medical coverage. They also claimed that they were restricted in access to accommodation and the capacity to work. They claimed that they had no recourse to state authorities with the result that they could not take action for matters such as assaults or medical negligence. The applicants claimed fears of persecution included that, upon their return as Faili Kurds who had unsuccessfully claimed asylum they would, accordingly, be accused of being spies and suffer consequent harm.
The applicants’ entry interviews were transcribed. In the course of the second applicant’s interview she had been asked:
a)whether she had ever been politically active and answered: “We are without identity card[s] and stateless so how can we be a part of a political party?”
b)what was unique about being a Faili Kurd and answered: “You do not have any identity or birth certificate. They have no place just like Iraq. We are not able to defend ourselves. When they discriminate against us we are not able to defend ourselves.”
c)what she thought would happened to her if she returned to Iran and replied “those days they were hurting us they will now kill us” and when asked why, replied “We have no identity in Iran. They [will] say you are now a spy.”
On 13 October 2013, the applicants’ representative lodged submissions in support of the visa application. The applicants submitted that they were stateless Faili Kurds and accordingly, not entitled to entry, residency or citizenship of any country. It was submitted that the applicants had both provided clear and consistent evidence that they had been born in Iraq and forcibly expelled from Iraq as young children and that those claims were consistent with country information relating to the status of members of the Faili Kurdish community living in Iraq prior to the outbreak of the Iraq-Iran war.
The submission detailed the content of that country information, including that Faili Kurds were Shia Muslim Kurds who had originally inhabited the Iran-Iraq border along the Zagros mountain range and who had lived a semi-nomadic existence in the territories of modern Iraq and Iran before moving to Iraqi cities during the Ottoman era. The submission cited country information that in the 1970’s – 1980’s, the Iraqi military, at the behest of the Ba’athist regime, had forced several hundred thousand Faili Kurds across the border to Iran, stripping them of their property and citizenship and confiscating their assets. As to this, the submission stated:
The [applicants] are stateless Faili Kurds expelled from Iraq over 30 years ago. Since that time they have resided as stateless Faili Kurds in Iran. Given that our clients do not have rights to citizenship of any country, . . . consistent with available country information . . . their claims should be assessed against Iran, their country of former habitual residence.
The applicants’ claims to a well-founded fear of persecution were:
a)membership of a particular social group – undocumented stateless Faili Kurds;
b)on the basis of their Faili Kurdish ethnicity;
c)an imputed political opinion as opponents of the Iranian government or supports of separatist movements;
d)membership of a particular social group – failed asylum seekers.
It was submitted that their fear of harm was evident in both their statement of claims, their evidence at entry interviews and available country information. The submission contested any suggestion that their evidence had been vague and attached further country information.
The applicants claimed to have been persecuted by being denied identification documents and access to services such as education and medial coverage. They also claimed that they were restricted in access to accommodation and the capacity to work. They claimed that they had no recourse to state authorities, meaning that they could not take action for matters such as assaults and medical negligence. The applicants also feared persecution upon their return as Faili Kurds who had unsuccessfully claimed asylum, as the applicants feared being accused of being spies and harmed accordingly.
On 17 April 2014, a delegate of the Minister refused to grant the applicants a visa. The delegate considered that the first applicant’s claims were not credible and was not satisfied that he was stateless or of Faili Kurdish ethnicity but was an Iranian citizen. The delegate rejected the first applicant’s evidence that he was born stateless in Iraq. The delegate noted country information that many thousands of Faili Kurds had been driven from Iraq to Iran, their assets being confiscated and that they had been stripped of Iraqi citizenship.
However, the delegate found that the first applicant had not provided any evidence of his status as a stateless person and that available country information called into question his claim to not hold any Iranian registration documents as a refugee. The delegate considered that his claim as to interactions with Iranian authorities as an undocumented Faili Kurd was illogical. In the delegate’s view, it made no sense that a stateless person would seek assistance from Iranian authorities to resolve a work related dispute and thereby risk deportation for having worked illegally.
The delegate rejected the applicants’ claims to have departed Iran on fraudulent Iranian passports, finding it improbable that they would have evaded detection when leaving Iran via Imam Khomeini Airport.
The delegate accepted that the first applicant spoke the Faili Kurdish dialect but noted that the same dialect was also spoken by locals in Ilam. For that reason, the delegate attached little weight to the first applicant’s use of the Faili Kurdish dialect to substantiate whether he was of Faili Kurdish ethnicity. Equally, the delegate considered that the first applicant had not provided credible evidence of how he had lived as a stateless undocumented Faili Kurd in Iran for a period of more than 34 years. Significant weight was placed on the first applicant’s inability to discuss Faili Kurdish culture. The delegate’s decisional record does not appear to refer to whether the first applicant had had any education or whether he was illiterate. The delegate was not satisfied that the first applicant was of Faili Kurdish ethnicity.
The delegate was not satisfied that the first applicant was stateless and, finding that he was an Iranian citizen, found that he would not be harmed due to his Iranian citizenship. The delegate was not satisfied that there was a real chance that the first applicant would face serious harm due to his nationality or by reason of the claim to membership of a particular social group, being undocumented stateless Faili Kurds.
The delegate, while not satisfied that the first applicant was of Faili Kurdish ethnicity, accepted that he could be perceived to be so and on that basis assessed whether the first applicant’s fear of persecution was well-founded. The delegate found that the first applicant, an Iranian citizen, had been unable to demonstrate that he held a profile due to his race or political opinion should he return to Iran. Likewise, not being satisfied that the first applicant had departed Iran using a fraudulent passport, the delegate was not satisfied that he would face harm on this account either. Somewhat curiously, the delegate concluded:
I am satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason. I am therefore not satisfied that the applicant’s fear is well-founded.
The delegate was not satisfied that Australia owed complementary protection obligations to the first applicant.
As the first applicant was refused a Protection visa, the second applicant was refused a visa as a member of the same family unit who had been included in that application.
On 23 April 2014, the applicants’ lawyers made application to the Tribunal for review of the delegate’s decision.
On 17 December 2015, the applicants appeared at a hearing before the Tribunal to give evidence and present arguments with the assistance of a Kurdish interpreter. The Tribunal record indicates that the hearing was of a little more than two hours duration.
Tribunal decision
On 6 January 2016, the Tribunal made a decision affirming the delegate’s decision to not grant Protection visas to the applicants. A statement of reasons for that decision was provided (Reasons). No criticism was made of the Tribunal’s description of the application or the applicable principles: [1]-[19]. The Tribunal’s consideration and assessment of the claims and evidence occupied paragraphs [20]-[40].
The Tribunal recognised that the applicants’ claims to having been persecuted were as set out at [15] above and considered those claims.
The Tribunal, having considered the applicants’ claims and evidence, did not find the applicants to be credible witnesses and concluded they were not undocumented Faili Kurds but were Iranian citizens: [26]. The Tribunal found them not to be credible witnesses for three reasons which are more conveniently summarised in relation to Ground 3 at [91] below. The Reasons contain no reference to the settled principles that are to be applied by an administrative decision-maker to the assessment of an applicant’s credibility.[1]
[1]Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wie Rong and Pam Run Juan (1996) 40 ALD 445; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 451; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109, [56].
The Tribunal accepted that the applicants were Faili Kurds at [36], but did not accept that the applicants were stateless undocumented Faili Kurds, finding that they were Iranian citizens who had left Iran lawfully on their own passports: [27].
The Tribunal further found that Iran was their country of nationality for the purposes of the Refugees Convention and also their receiving country for the purposes of ss 5(1) and 36(2)(aa) of the Act. The Tribunal also did not accept that the applicants were denied rights of insurance, healthcare, employment or freedom of movement: [28]. Nor did it accept that the second named applicant did not have the right to take action in respect of certain medical procedures which were alleged to have been negligently performed or of her being the victim of an assault: [29].
The Tribunal did not accept that the applicants were members of a particular social group comprised of stateless Faili Kurds and concluded that the applicants did not face a real chance of persecution or real risk of significant harm for reasons of their membership of a particular social group: [30]-[31].
While accepting that the applicants would be returning to Iran as failed asylum seekers, the Tribunal did not accept that they would be punished for leaving on false passports as claimed. The Tribunal noted country information suggesting that applying for asylum was not considered by Iran to be an offence. The Tribunal noted the applicants’ evidence that they had not been involved in political activities which might otherwise have attracted adverse scrutiny from authorities upon their return to Iran and concluded that, having regard to country information and their individual circumstances, the applicants did not face a real chance of persecution or a real risk of significant harm for reason of their membership of a particular social group of failed asylum seekers: [32]-[34].
The Tribunal further considered the applicants’ claims to fear harm as a result of a particular group comprised of Faili Kurds. The Tribunal did not consider that the death of the first applicant’s parents during the 1980’s Iran-Iraq war, or the second applicant’s claim to having been assaulted as a child, were relevant to the claims for protection in circumstances where there had been a long lapse of time between those events and the present date. Relying on country information, the Tribunal also found that Faili Kurds who were Iranian citizens were unlikely to face adverse action because of their ethnicity: [35]-[38].
Having regard to the country information as a whole and the applicants’ individual circumstances cumulatively, the Tribunal found that the applicants did not have a well-founded fear of persecution for a convention reason and did not face a real risk of significant harm: [39]-[41]. Accordingly, the Tribunal affirmed the delegate’s decision.
Procedural History
On 28 January 2016, the applicants filed an application for judicial review of the Tribunal’s decision. The first applicant also affirmed an affidavit exhibiting a copy of the Tribunal’s decision but adducing no further evidence in support of the application for judicial review.
By a Response filed on 4 February 2016, the Minister opposed the making of the orders sought, on the basis that the grounds set out in the application established no jurisdictional error in the Tribunal’s decision.
On 22 June 2016, orders we made, by consent, that the application be listed for hearing and provided for the applicants to file an amended application, any additional grounds of review, any further affidavits and written submissions in support of their application.
On 30 May 2017, the applicants filed an amended application, supporting affidavit, supplementary court book and submissions.
The affidavit affirmed by their solicitor exhibited a copy of the PAM3: Refugee and Humanitarian Protection Assessment Guidance Notes No 3 – Faili Kurds from Iran dated 1 July 2015.
In the course of the hearing, the following were tendered as exhibits:
a)DFAT Country Information report, Iran dated 29 November 2013;
b)DFAT Thematic Report Faili Kurds in Iraq and Iran dated 3 December 2014;
c)Report by the Canadian Research Directorate, Immigration and Refugee Board of Canada, the extract of which was:
Iran: The passport; its features and procedures for application including whether an applicant, who was refused a passport, would be notified and have recourse; the use and prevalence of fraudulent or counterfeit passport to exit Iran; ease of illegal entry into and exit from Pakistan, Turkey and Azerbaijan and the United Arab Emirates by sea; whether authorities seize passports from certain individuals to prevent their departure from the country (2004-February 2006).
These documents were tendered without objection.
Judicial Review
Being a privative clause decision[2], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4]
[2] Section 474(2).
[3]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[4] Sub-s 476(2).
Certain criteria for Protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[5] Minister for Immigration and Citizenship v SZMDS.[6]
[5](2004) 78 ALJR 992, [37]-[38].
[6](2010) 240 CLR 611, [40], [102].
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[7] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[8] It follows that if the criteria for the grant of a Protection visa are satisfied, the Tribunal must grant the application and if not so satisfied, the visa application must be refused.
[7]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[8] Section 65(1)(a).
The amended application advanced four grounds of review.
Grounds 1 and 2 – failure to address Iranian citizenship
Grounds 1 and 2 were addressed collectively. Ground 1 reads:
The Tribunal failed to acquit its statutory task of review, or alternatively, failed to take into account a relevant consideration, in failing to consider whether the applicants satisfied the criteria for citizenship under Iranian law.
Particulars
Having found that the applicants were Faili Kurds and having accepted that they were born in Iraq, the Tribunal was obliged to consider whether the applicant could satisfy the test for naturalisation under Iranian law before the Tribunal could conclude that the applicants were Iranian citizens.
Ground 2 reads:
The Tribunal failed to take into account information that it was bound to consider according to Ministerial Direction No. 56 under s 499 of the [Act].
Particulars.
a)The Tribunal failed to have regard to PAM3: Refugee and Humanitarian Protection Assessment Guidance Notes No. 3 – Faili Kurds from Iran, specifically the indication that decision-makers need to consider the relevant countries’ laws related to naturalisation and citizenship, and the summary of Iranian naturalisation and citizenship and law contained within the Guidance Note.
b)The Tribunal failed to have regard to DFAT country information on Iran, including the DFAT Country Information Report on Iran, 29 November 2013, and the DFAT Thematic Report on Faili Kurds in Iraq and Iran, 3 December 2014, specifically the provisions about access to Iranian citizenship by Faili Kurds.
The Tribunal was obliged to conduct a merits review of the delegate’s decision to refuse the applicants Protection visas: s 414.
An administrative decision may be vitiated by legal error where a decision-maker has failed to take into account a mandatory relevant consideration.[9] The identification of such matters is to be determined by reference to the subject matter, scope and purpose of the relevant legislation. In Lo v Chief Commissioner of State Revenue,[10] Basten JA, (with whom Beazley P agreed) said:[11]
The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[12] it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
Macfarlan JA, (with whom Beazley P also agreed) said:[13]
. . . in judicial review proceedings the omission of a decision-maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko[14];ProjectBlue Sky v Australian Broadcasting Authority[15]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision-maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision-maker will have erred in law in expressly or impliedly misconstruing the statute.
[9]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
[10](2013) 85 NSWLR 86.
[11](2013) 85 NSWLR 86, [9].
[13](2013) 85 NSWLR 86, [50].
[14][1986] HCA 40; 162 CLR 24 at 39-40.
In the context of an application for a Protection visa, the Tribunal was obliged to consider the matters addressed by ss 36(2)(a) and 36(2)(aa).[16] This, in turn, required the consideration of whether the applicants were refugees and had a well-founded fear of persecution.
[16] See also Reg 1401, Migration Regulations 1994, Sched 2, Part 866.
Different considerations arose in relation to whether the applicants were refugees depending upon whether they had or did not have a nationality: cf paras 5H(1(a)-(b). In the present case, the applicants claimed to have been born in Baghdad to Iraqi parents, to have been expelled from Iraq at a young age and to have lived as stateless persons in Iran until they travelled to Australia in 2012. In the present case, a relevant consideration was whether the applicants were undocumented stateless persons as they claimed to be. Those were matters which the Tribunal did consider: Reasons, [26].
The Tribunal made an affirmative finding that the applicants were Iranian citizens: Reasons, [26]-[27]. This was, as the applicants submitted, a finding that went further than a finding that the applicants were not stateless. It involved a positive finding that the applicants held Iranian nationality. The applicants correctly submitted that a finding of nationality was to be determined by reference to the domestic law of the country of putative nationality.[17]
[17]VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239, [29]-[31] (Weinberg J); special leave refused: [2006] HCATrans 540; PAM3: Refugee and Humanitarian Protection Assessment Guidance Notes No 3 – Faili Kurds from Iran dated 1 July 2015; see also s 36(6).
The Tribunal also made a positive finding that the applicants were Faili Kurds: Reasons, [36]. While the applicants’ visa application, statement of claims, statutory declarations and submissions consistently claimed that they had been born to Iraqi parents, the Reasons do not indicate that they were questioned about this. Additionally, an annexure to the second applicant’s application listed six relatives (living or dead), who had likewise been born in Baghdad and who were also stateless.
The Tribunal made no reference to those materials and made no finding in relation to the applicants’ place of birth or the nationality of their parents but recorded, without criticism, their claims to having been born in Baghdad and to having been expelled, with their families, from Iraq in 1978 and of moving to Iran: Reasons, [20]-[24]. It accepted that they were Faili Kurds and that their parents had been killed in Iraqi attacks during the Iran-Iraq war in the 1980’s: [35]-[36].
I accept the applicants’ submission that, as the applicants claimed to have been born outside of Iran and be stateless, an affirmative finding of Iranian citizenship necessarily required an assessment of whether the applicants had been naturalised as citizens under Iranian law.[18]
[18]VSAB, supra [2006] FCA 239, [49]-[53] (Weinberg J).
The applicants correctly submitted that the Tribunal had made no assessment of whether they met the criteria for the grant of Iranian citizenship. The absence of any such consideration undermined the positive conclusion that the applicants were Iranian citizens.
The Minister is authorised to give written directions, relevantly, to a Tribunal, in relation to the performance of its functions and the exercise of its powers: s 499(1). Where the Minister does so, the Tribunal must comply with those directions: s 499(2A).
The Reasons contain no reference to the PAM3: Refugee and Humanitarian Protection Assessment Guidance Notes No 3 – Faili Kurds from Iran dated 1 July 2015 (Guidelines). The stated purpose of the Guidelines was to provide advice to decision makers on assessing protection claims of asylum seekers from Iran under the Refugees Convention and complementary protection by outlining the appropriate policy and legal considerations, identifying and analysing relevant country information and suggesting lines of inquiry for assessing such claims. After referring to s 499 and Ministerial Direction No 56, the Guidelines stated, as to the purpose of the document, that:
DFAT published a Faili Kurds in Iraq and Iran thematic report on 3 December 2014. While this PAGN contains references to the information contained within the thematic report, decision makers should consider the whole DFAT report and, where appropriate, cite it in decision records.
Contrary to that guideline, the Reasons contain no reference to, and do not cite, either the Guidelines or the Thematic Report.
The Guidelines were arranged in five sections; Claims analysis; policy and legal considerations; analysis of country information; suggested issues for consideration; and country information.
Section 2 of the Guidelines, policy and legal considerations, includes:
2.6 The process of determining whether an applicant must be undertaken having regard to the individual circumstances of the applicant and available country information. When considering claims of statelessness, decision makers should explore the relevant country’s/country’s laws related to citizenship and naturalisation, the application of such laws in particular; the applicant’s person and family history, including details of resettlement in Iran; their dealings with government and refugees agencies; access to employment, education and health services; and any documentation provided by the applicant.
2.7 Given the nature of statelessness, applicants claiming to be stateless may not be able to substantiate their claims of statelessness with documentary evidence. In such cases, decision makers need to rely upon the applicant’s testimony and assess whether the statements made by the applicants in regard to their stateless status are credible . . . Decision makers must consider the sufficiency of detail provide by the applicant . . . and their plausibility; and consistency with country information. Decision maker must be aware that the applicant’s level of knowledge about a country’s laws or events that led to loss of nationality may depend on their level of education and age at the time of relevant events (eg deportation from Iraq). (emphasis added).
As noted above, the delegate found that the first applicant had not provided any evidence of his status as a stateless person. However, despite cl 2.7 of the Guidelines, the delegate seemingly made no reference to the first applicant’s illiteracy and lack of education.
Section 3 of the Guidelines, Analysis of country information, includes:
3.7 According to the law, Iranian citizenship can be acquired through naturalisation . . . DFAT advised that it is unlikely that a child born to Faili Kurd refugees could acquire Iranian citizenship.
Thus, the advice given by the Guidelines for the purpose of assessing protection claims of asylum seekers from Iran was that it was unlikely a child born to Faili Kurd refugees could acquire Iranian citizenship.
In Section 5 of the Guidelines, Country information, advice is provided at 5.20-5.31 as to Acquiring Iranian citizenship through naturalisation and birth on the territory of Iran. At 5.26, advice as provided was that:
5.26 The December 2014 DFAT report noted that registered refugees, including those who had lived in Iran for five years, normally did not meet the residency requirements for acquiring Iranian citizenship. On 7 May 2010, DFAT advised “[a]though officially it would be possible to apply for citizenship, in practice, Afghan refugees and their children, including those born in Iran are extremely unlikely to be granted Iranian citizenship. An applicant for citizenship must have legally resided in Iran for an uninterrupted period of 5 years, must be in Iran, and must either be highly qualified or have sufficient capital to invest in and run a business in Iran. In October 2011, DFAT confirmed that its 7 May 2010 advice also applied to children of Iraqi refugees. . . (footnotes omitted, emphasis added)
Again, the advice given by the Guidelines for the purpose of assessing protection claims of asylum seekers from Iran was that persons who were not born in Iran and whose parents were not born in Iran were extremely unlikely to be granted Iranian citizenship. As the Guidelines were not referred to, the Tribunal did not consider that it would be extremely unlikely for the applicants, as persons born in Baghdad to non-Iranian parents, to be granted Iranian citizenship.
The DFAT Country Information on Iran dated 29 November 2013 was information which the Tribunal was bound[19] to take into account by force of Ministerial Direction No 56, stated at 3.23:
Iran did not initially recognise the Faili Kurds as citizens; most are accommodated as refugees. However, those Faili Kurds that can prove Iranian ancestry are eligible for Iranian citizenship. . .
Again, the Tribunal’s apparent acceptance that the applicants were Iraqi born to Iraqi parents would have denied a conclusion that they were of Iranian ancestry.
[19] Section 499.
In circumstances where the Tribunal took no issue with the applicants having been born in Iraq and in the absence of any evidence supporting a conclusion that the applicants were of Iranian ancestry, the Tribunal ought to have taken into account the above DFAT information.
The DFAT Thematic Report, Faili Kurds in Iraq and Iran dated 3 December 2014 contained a statement of its purpose and scope which, after referring to Ministerial Direction No 56, stated that the report considered the situation for Faili Kurds in Iraq and Iran with respect to Protection visa applications in Australia and provided DFAT’s best judgment and assessment at the time of writing.[20] Section 3 of the Report included consideration of allegations that Faili Kurds faced harassment on the basis of former Iraqi citizenship and/or statelessness. The Report stated that Faili Kurd refugees might face some restrictions on their movement in the country, and that it was possible they would receive access at a lower level than Iranians to healthcare, education and state benefits.[21] Concerning the rights to citizenship of Faili Kurds, the Report stated that a slow but functioning process for naturalisation had been established for Faili Kurds but that the exact terms and conditions for eligibility for that process was presently unavailable.[22] The Report considered the means of obtaining citizenship through paternal descent, maternal descent, by marriage and by other means.[23] Concerning the availability of citizenship by other means, the Report stated that citizenship could be granted to abandoned infants, and to foreign parents, one of whom was born in Iran.[24]
[20] See cll 1.1, 1.3 and 1.5.
[21] See cll 3.7-3.8
[22] See cl 3.21.
[23] See cl 3.22 – 3.30.
[24] See cl 3.30.
On the applicants’ claims, none of their parents were Iranian born.
There is no mention in the Reasons of the Guidelines, DFAT Country Information or the DFAT Thematic Report. The applicants submitted persuasively that the Tribunal ought to have, but had not, given consideration to the Guidelines, DFAT Country Information and to the DFAT Thematic Report. This information indicated that a non-Iranian was extremely unlikely to be granted citizenship unless falling within very narrowly defined categories, none of which applied to the applicants on the material before the Tribunal.
Having regard to the absence of any reference to the foregoing information, the Tribunal failed to consider whether or how the applicants had acquired Iranian citizenship. I accept that, where the Tribunal found that the applicants were Faili Kurds and did not explicitly address their claims to having been born in Baghdad, its conclusion that the applicants were Iranian citizens necessarily required consideration of the domestic law respecting Iranian citizenship. In turn, in accordance with Ministerial Direction No 56, consideration was required to be, but was not, given to the DFAT Country Information and to the DFAT Thematic Report.
Had consideration been given to that information, on the facts which were found (the applicants were Faili Kurds) and those which were not expressly addressed by the Reasons (the applicants were born in Iraq to Iraqi parents), the extreme unlikelihood of the applicants having been granted Iranian citizenship was the most probable, if not the only conclusion that would have been reached by the Tribunal had the domestic law respecting the grant of Iranian citizenship been applied.
That the Tribunal did not consider the Guidelines or Thematic Report and yet concluded the applicants were Iranian citizens in the face of an express finding that the applicants were Faili Kurds and the absence of an express rejection of their claims to having been born in Iraq to Iraqi parents, supports a conclusion that the Tribunal did not perform the statutory task of review that was required of it pursuant to s 414.
In answer to those contentions, the Minister frankly conceded that the Reasons disclosed that no consideration had been given to the Iranian domestic laws respecting the grant of citizenship but submitted that the Tribunal was required to and had given consideration to the claim that the applicants were undocumented or stateless Faili Kurds. The Minister further submitted that if the Tribunal had not correctly applied relevant available DFAT information that the Minister’s opposition to the application must fail and that this application should succeed. While the Reasons noted at [26] certain country information upon which reliance had been placed, neither the footnote to that paragraph nor the Reasons more widely referred to that country information.
The Minister submitted that the Tribunal had considered and rejected[25] the applicants’ claim to be undocumented or stateless Faili Kurds. The Minister relied upon Hussain v Minister for Immigration and Multicultural Affairs[26] where a delegate and Tribunal had disbelieved the applicant’s claim to be a citizen of Afghanistan. Carr J considered[27] whether the applicant’s nationality or habitual residence might be a material fact which the Tribunal might be required to consider in the sense explained in Minister for Immigration and Multicultural Affairs v Singh[28] (see below). His Honour held:[29]
I have decided that a failure to make such a finding of fact in this particular case would not have given rise to what, on the current state of the authorities, would constitute reviewable error by non-compliance with s 430(1)(c) when read with s 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”). That was because when the applicant presented himself at the Australian border as a candidate for refugee status, and at all times subsequently, he did so on the basis that he was a national of Afghanistan who had a well-founded fear of being persecuted on grounds of both race (Hazara) and religion (Shi’a). He made no other claims to refugee status. Once he was disbelieved on those claims there was nothing left in his application for refugee status. In my opinion, in those circumstances, there was no legal requirement on the Tribunal’s part to go on and make a finding as to the applicant’s actual nationality.
Thus, Carr J reasoned that no reviewable error would be disclosed by non-compliance with s 430(1)(c) when read with s 476(1)(a) of the Act in not making a finding as to the applicant’s nationality or habitual place of residence. The express reference to par 430(1)(c) makes clear that Carr J was concerned to focus upon whether jurisdictional error might be demonstrated for want of compliance with the obligation to make a finding upon a material finding of fact for the decision.
[25] Reasons at [26]-[27].
[26] [2001] FCA 523.
[27] [2001] FCA 523, [21]-[22].
[28] (2000) 98 FCR 469.
[29] [2001] FCA 523, [23].
Hussain has been applied in Abedi v Minister for Immigration and Multicultural Affairs;[30] Adil v Minister for Immigration and Multicultural Affairs;[31] Askari v Minister for Immigration and Multicultural Affairs;[32] Anwari v Minister for Immigration and Multicultural Affairs;[33] SCAP v Minister for Immigration and Multicultural and Indigenous Affairs.[34] Somewhat curiously, Hussain appears not to have been further considered since 2002. Equally, the ratio for those decisions are not expressed in absolute terms or as admitting of no exceptions.
[30] [2001] FCA 1081, [22]-[24] (Hely J).
[31] [2001] FCA 1801, [22] (Tamberlin J).
[32] [2002] FCA 216, [9] (Carr J).
[33] [2002] FCA 217, [13], [16] (Mansfield J).
[34] [2002] FCA 677, [28]-[29] (von Doussa J).
In my view, four features of these decisions bear further consideration. First is that in several of the decisions, the court was concerned to confine or qualify the holding that the Tribunal was not obliged to determine the question of nationality or statelessness to ‘the particular circumstances of the case.’[35] Secondly, in Hussain and several of the later decisions, the claim to protection was advanced on the sole basis that the applicant was a national of one country alone – no other claim to refugee status had been made. Thirdly, and contrastingly, in Anwari,[36] Mansfield J recognised that the applicant had made his protection claims on the basis of nationality and as a habitual resident of Afghanistan but considered that the latter claim had been subsumed in the finding that he was an Afghani who had never left his country of birth. Fourthly, in Hussain, Carr J’s analysis framed the question as to whether a finding of nationality (or, by extension, habitual place of residence) was a material fact for the purposes of s 430(1)(c) in the sense explained in Singh.[37] In light of my conclusions at [79]-[80] below, I regard those matters as being of some contextual relevance.
[35]While the reasoning in some of the cases was expressly qualified as being confined to the facts of the particular case, in none of the decisions did the court go further and consider the circumstances in which it might be incumbent upon an administrative decision-maker to make an affirmative finding upon the applicant’s nationality.
[36] [2002] FCA 217, [16].
[37] (2000) 98 FCR 469.
In Singh, Black CJ, Sundberg, Katz and Hely JJ held:
Accordingly, if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at pars [65] and [67].
Singh was disapproved in Yusuf v Minister for Immigration and Multicultural Affairs.[38] McHugh, Gummow and Hayne JJ (with whom Gleeson CJ and Gaudron J agreed on this issue[39]), held that a failure by a Tribunal to deal in its reasons with some assertion of fact may or may not have consequences for judicial review.[40] The plurality emphasised[41] the need to consider the statutory scheme as a whole and observed that the considerations advanced by the parties could be of some importance in deciding what was and was not a relevant consideration[42] such that, in the context of protection, a Tribunal’s failure to make findings about past claims to persecution may well reveal error. McHugh, Gummow and Hayne JJ held:
If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well‑founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, . . . If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations. (footnote omitted)
[38] (2001) 206 CLR 323.
[39] (2001) 206 CLR 323, [1], [4], [38], cf [137] Kirby J diss, [204]-[205] (Callinan J).
[40] (2001) 206 CLR 323, [75].
[41] (2001) 206 CLR 323, [73].
[42] (2001) 206 CLR 323, [74].
In the present case, the applicants made claims to having been expelled from Iraq as children and to then having lived in Iraq as stateless persons. The applicants do not present these grounds of review as one involving a failure by the Tribunal to make a finding upon their claims to being stateless. Grounds 1 and 2 turn upon the Tribunal’s affirmative finding that the applicants were Iranian citizens. Once the Tribunal had made that finding it was obliged to refer to the evidence or other material on which its finding was based: par 430(1)(d).
In the circumstances of this case, an affirmative finding of Iranian citizenship necessarily required consideration as to how the applicants acquired that citizenship. Such consideration was required in this case because the Tribunal had accepted that the applicants were Faili Kurds and had not cavilled with their claims to having been born in Baghdad to Iraqi parents. Collectively those matters required consideration of the Guidelines, the DFAT Country Information and the DFAT Thematic Report. In my opinion, the absence of any reference to those materials in the Reasons reveals error in the Tribunal’s finding that the applicants were Iranian citizens.
It may be accepted that a finding that the applicants held Iranian passports was some evidence of nationality: VSAB v Minister for Immigration and Multicultural and Indigenous Affairs.[43] However, as Weinberg J held in VSAB, “[t]he issue of a passport does not, of itself, amount to a grant of citizenship.”[44] The applicants had claimed from the time of completing their visa applications that their passport[45] was forged. I accept the applicants’ submission that the Tribunal’s rejection of the claim to having acquired a false passport for the purpose of departing Iran does not answer the requirement that, in this case, the Tribunal was required to identify the evidence on which it found that the applicants had acquired Iranian citizenship. As the analysis in VSAB confirms, the Tribunal’s consideration of nationality in that application turned upon its consideration of DFAT information.[46] To the extent that the Tribunal had regard to country information from the Immigration and Refugee Board of Canada,[47] that document expressly identified the requirement for the provision of a birth certificate. On the facts as found, it wold have been impossible for the applicants to have held Iranian birth certificates. The applicants’ uncontroverted claims were to having been born in Iraq. Provisions of a statement of the evidence or other material on how the applicants had acquired Iranian citizenship was required in the Reasons.
[43] [2006] FCA 239, [54] (Weinberg J).
[44]His Honour expressed that conclusion in the context of a ‘No evidence’ ground of review: see [2006] FCA 239 at [16(c)].
[45] The Reasons state that the applicants held a single passport.
[46] [2006] FCA 239, [66].
[47] Reasons, [26], second dot point, footnote 2.
The failure to undertake any analysis of how the applicants acquired Iranian citizenship suffices to support a conclusion that the Tribunal failed to carry out its statutory task of review: s 414. It cannot be said that the error in making an affirmative conclusion that the applicants were Iranian citizens without any consideration of the applicable domestic law, PAM 3 Guidelines, Country Information and Thematic Report was an immaterial error. The failure to take that material into consideration also entailed jurisdictional error.[48]
[48] Cf WZAQH v Minister for Immigration and Border Protection [2013] FCCA 182, [29]-[30].
Grounds 1-2 are established.
Ground 3 – irrational or unreasonable reasoning
Ground 3 reads:
The Tribunal’s finding that the applicants were Iranian citizens was irrational, or alternatively, was so unreasonable that no reasonable decision-maker could have made it.
Particulars
a)The Tribunal’s reliance on the applicants’ failure to obtain green or white cards as a basis for finding that they were Iranian citizens was irrational; or, alternatively, unreasonable.
b)The Tribunal’s reliance on reported statistics of the numbers of unregistered Faili Kurds in Iran as a basis for finding that they were Iranian citizens was irrational; or, alternatively, unreasonable.
The seminal statement of principle respecting irrationality and illogicality in the administrative process of a decision-maker is found in Minister for Immigration v SZMDS.[49] The test is a stringent one and was stated by Crennan and Bell JJ as follows:[50]
But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion
Later their Honours stated:[51]
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[49] (2010) 240 CLR 611.
[50] (2010) 240 CLR 611, [135].
[51] (2010) 240 CLR 611, [135].
In relation to Ground 3, the relevant finding was located in the Reasons at [26] where the Tribunal set out in three dot points the reasons for its conclusion that the applicants were not credible witnesses (see below).
The approach taken to adverse credibility findings was stated by the Full Court in DAO16 v Minister for Immigration and Border Protection (in the context of legal unreasonableness), as follows:[52]
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135 … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (Emphasis added)
[52] (2018) 353 ALR 641.
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
The Full Court has repeatedly accepted that findings or reasoning ‘along the way’ to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error: see, eg. DAO16;[53] BZD17 v Minister for Immigration and Border Protection;[54] Minister for Immigration and Border Protection v Sabharwal;[55]
[53] (2018) 353 ALR 641, [30(4)]
[54] [2018] FCAFC 94, [34].
[55] [2018] FCAFC 160, [45].
In BZD17 v Minister for Immigration and Border Protection,[56] Perram, Perry and O’Callaghan JJ stated that:
. . . findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error: SZMDS at [132] (Crennan and Bell JJ). This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal’s decision that it was not satisfied that an applicant met the criteria for the grant of a visa: DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56] (Wigney J)). (emphasis added)
[56] [2018] FCAFC 94, [34].
More recently, in Minister for Immigration and Border Protection v Sabharwal,[57] Perram, Murphy and Lee JJ held:
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
[57] [2018] FCAFC 160, [45].
In support of Ground 3, counsel for the applicant relied upon the first and third bullet points of the Reasons at [26]. There the Tribunal, having considered the applicants’ claims and evidence, stated that it did not find the applicants to be credible witnesses and concluded they were not undocumented Faili Kurds but were Iranian citizens. The Tribunal found them not to be credible witnesses for three reasons:
a)first, the Tribunal considered that it was neither plausible nor credible that the applicants had not registered for a Green and White card which was issued in Iran to Iraqi refugees. Given the significant benefits which inhered in the holder of such cards, the Tribunal dismissed their explanations for having not applied for registration to obtain a Green and White card in the entirety of their adult lives. The Tribunal identified the benefits to a cardholder included access to healthcare and education and (until 1995), food subsidies. The Tribunal considered their evidence in relation to this issue to detract from their credibility;
b)secondly, the Tribunal considered the applicants ability to depart Iran on a fraudulent Iranian passport would have been difficult to achieve in light of country information. The applicants’ explanation had been that they had travelled on a single false Iranian passport. While the Tribunal accepted that false Iranian passports could be purchased easily on the black market, it considered that such false passports were readily identifiable on the Iranian computer database. The Tribunal also accepted that bribery was possible but concluded it would be extremely difficult to leave Iran through an airport using a false passport. Considering the whole of the country information and the applicants’ account of how they had departed Khomeini airport, it concluded that the applicants ability to depart Iran using a false passport also detracted from their credibility;
c)thirdly, it considered that country information indicated the number of unregistered Faili Kurds in Iran was likely to be small. The Tribunal’s analysis of a variety of DFAT data, included that:
DFAT had earlier reported in 2010 that approximately 48,000 Iraqi refugees had been registered and that they had been told of a further 4,000 unregistered Iraqi refugees. Though not conclusive of itself, the likely small number of unregistered Faili Kurds in Iran is a further reason that detracts from the credibility of the applicants’ claims.
The finding set out above in relation to the third dot point was stated at the conclusion of the Tribunal’s summary of data drawn from 2014 Country Information concerning the position of Faili Kurds who had been stripped of their citizenship in Iraq.
It was said to be demonstrably irrational to consider, at one of the same time, that it was implausible and incredible that the applicants had not applied for registration to hold a green and white cards and at the same time to have accepted country information that there were some 4,000 unregistered Iraqi refugees in Iran. In the face of the objective known DFAT country information that ~4,000 Faili Kurds in Iran were unregistered, it was said to be entirely irrational to conclude it both implausible and incredible that, in effect, the applicants were not amongst that group of 4,000 unregistered Faili Kurds in Iran. Why then was their claim not to have applied for registration to hold a green or white card implausible and incredible?
The finding that it was not plausible or credible that the applicants would not have applied for green or white cards was a finding along the way to the finding that the applicants were not undocumented Faili Kurds. So too, was the finding that, of a population of 48,000 Faili Kurds in Iran, ~4,000 Faili Kurds remained unregistered. On that country information, ~9% of Faili Kurds in Iran remained unregistered.
The Minister accepted that if the DFAT data was accepted that the opposition to this ground must fail. It was submitted, however, that the test, or threshold, for establishing irrationality and unreasonableness was a high threshold. So much must be accepted. However, on the face of the Reasons at [26], the Tribunal did accept and did act on the data contained in that 2014 country information.
In my opinion, the finding that it was neither plausible nor credible that the applicants had not applied for green or white cards was not one to which a reasonable decision-maker could have come to on the evidence. The Tribunal accepted that 4,000 Iraqi refugees were unregistered. It was not reasonable to arbitrarily select the applicants as being persons who had registered and so obtained a green or white card. The finding that, because there were only 4,000 stateless Iraqi refugees, this provided an added reason which detracted from the credibility of the applicants’ claims, was a finding made without regard to the applicants personal circumstances. The Tribunal appeared to accept that the applicants lived in Ilam province at a remote location from a capital city or major provincial city in Iran. In DZADQ v Minister for Immigration and Border Protection,[58] Mansfield J held that an analysis of the statistical risk of harm relative to an entire population in a region was an inadequate basis upon which to establish that a risk of harm was remote. Her Honour concluded that the Tribunal’s task required that it give due consideration to the applicant’s personal circumstances.
[58] [2014] FCA 754, [65].
In this context, the critical question is whether, but for the Tribunal’s illogical or erroneous reasoning, the decision that the applicants were not credible might have been different by reason that the Tribunal would not have made findings that the applicants had not applied for a green or white card.[59] Where two of the three bases upon which the Tribunal grounded its conclusion that the applicants were not credible witnesses are shown to have been unreasonable, I consider that that conclusion might well have been different had those two factors been considered on a logical and rational basis.
[59]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ, Brennan and Deane JJ agreeing).
In holding that the Tribunal’s decision was unreasonable, I apply the high degree of caution that is required in impugning a credit based finding of a decision-maker. The Tribunal assigned three reasons for the conclusion that the applicants were not credible. In my opinion, no reasonable decision maker could have made the decisions which were made along the way to that conclusion. Ground 3 is made out.
Ground 4 – integer of claim
Ground 4 reads:
The Tribunal failed to consider an integer of the applicants’ claims
Particulars
The Tribunal fell into jurisdictional error in that it failed to assess the applicants’ claim to fear persecution as returning failed asylum seeks in combination with their status as Faili Kurds.
Ground 4 was that the Tribunal failed to consider an integer of the applicants’ claim by reason that it had failed to assess their claim to fear persecution as returning failed asylum seekers in combination with their status as Faili Kurds.
It was submitted, by reference to the transcript of interview, that the second applicant had advanced a claim she would be identified as a spy and killed for that reason: see at [12(c)] above. The claims to fear persecution on the basis that the applicants would be regarded as informers or spies were made in their statement of claim and statutory declaration. However, such claims were not distinctly articulated in the submissions which were lodged by the applicants’ lawyers.
The Tribunal considered the applicants claims to fear harm as a result of being failed asylum seekers: [32]-[34].
The applicable principles in relation to a failure to consider an integer of a claim were stated by Robertson J in Minister for Immigration and Citizenship v SZRKT.[60]Merely to ignore relevant material does not of itself amount to jurisdictional error.[61] Whether it may do so will depend in part upon the cogency of the material said to have been advanced by way of a claim or an integer thereof and about which complaint is being made.
[60] (2013) 212 FCR 99, [111]-[115], [122].
[61]CNN16 v Minister for Immigration and Border Protection [2018] FCA 1526, [26] (Colvin J), citing SZRKT at [122]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [62] (Griffiths, Perry and Bromich JJ).
I agree in the Minister’s submission that the suggestion the applicants would be identified as spies had not been advanced on the basis of any cogent evidence. I do not consider the decision of the Tribunal was attended by error in failing to give this issue further consideration.
Ground 4 is rejected.
Conclusion
As I have concluded that Grounds 1 – 3 are made out, and there being no submissions that relief should be withheld for any reason, it follows that the applicants are entitled to orders quashing the Tribunal’s decision and remitting the application for merits review for consideration according to law.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 17 January 2019
Corrections (7 February 2019)
The reference to the decision made by a delegate of the first respondent in
Order 1 has been amended to read “the second respondent”.
[12][1986] HCA 40; (1986) 162 CLR 24 at 39 (Mason J).
[15][1998] HCA 28; 194 CLR 355 at [91] - [93].
6
42
3