AJK16 v Minister for Immigration
[2018] FCCA 1094
•8 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1094 |
| Catchwords: MIGRATION – Application for judicial review – Protection (Class XA) visa – whether Tribunal failed to consider evidence provided by the Applicant that was cogent and material to the Tribunal’s basis for rejecting the Applicant’s claim to fear persecution and significant harm if returned to Iran on the basis that he is an undocumented stateless Faili Kurd – held that the country information provided by the Applicant was not cogent and material to the Tribunal’s basis for rejecting the Applicant’s claim – whether the Tribunal failed to consider an integer of claim made by Applicant – held Tribunal did not fail to consider an integer of claim made by the Applicant – amended application for judicial review dismissed – costs ordered. |
| Legislation: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art 1A Migration Act 1958 (Cth), ss.36(2)(aa), 414 |
| Cases cited: ACE15 v Minister for Immigration and Border Protection[2017] FCA 1054 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | AJK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 299 of 2016 |
| Judgment of: | Judge Jones |
| Hearing date: | 23 November 2017 |
| Date of Last Submission: | 23 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maxwell |
| Solicitors for the Applicant: | AUM Lawyers |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Applicant’s amended application for judicial review filed on
31 October 2017 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 299 of 2016
| AJK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns an amended application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 3 February 2016, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 19 May 2014 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). The Tribunal's decision is at Court Book (“CB”) 262-273.
The material before the Court is the Applicant’s Amended Application for judicial review filed on 31 October 2017, the Affidavit of Monica Gabriela Cosereanu filed on 3 November 2017, the Minister’s Response filed on 24 February 2016, the Applicant’s Outline of Submissions filed on 31 October 2017, the Minister’s Outline of Submissions filed on 13 November 2017 and the Court Book.
The following background is taken from the Applicant’s Outline of Submissions filed on 31 October 2017. In its Outline of Submissions filed on 13 November 2017, the Minister stated that it accepted that the Applicant made the claims set out at [4] and [5] below as well as the matters set out at [6]-[12] below, which form part of the introduction to this judgment.
In or around 1975 (1354 in the Persian calendar), the Applicant’s parents left Iraq for Iran to escape Saddam Hussein’s regime (CB 69-70). When the Applicant’s father arrived in Iran, he obtained a temporary Iranian identity card identifying him as a Faili Kurd originally from Iraq (CB 70, 200). When the Shah fell in 1979, however, the new Islamic regime did not recognise these cards and the Applicant’s father had no other Iranian identity documents after that time (CB 70, 200).
The Applicant was born in 1976 or 1977 (1355 in the Persian calendar) after his parents arrived in Iran (CB 70, 199). The Applicant lived in or around Kermanshah, Iran until his eventual departure for Australia
(CB 67-68). The Applicant’s father died in 1986 or 1987 (1365 in the Persian calendar) and his mother died in 1994 or 1995 (1373 in the Persian calendar) (CB 70). The Applicant claims that he has never had any form of identification and is therefore an undocumented stateless Faili Kurd.
The Applicant left Iran in August 2012 (CB 199) and arrived at Christmas Island by boat on or about 9 August 2012 (CB 36, 72).
On 24 December 2012, the Department of Immigration and Border Protection (“the Department”) received the Applicant’s application for the visa under the Migration Act 1958 (Cth) (“the Act”) (CB 23).
On 19 May 2014, a delegate of the Minister (“the Delegate”) refused the Applicant’s application (CB 112).
The Delegate accepted that the Applicant is a Faili Kurd who has habitually resided in Iran (CB 123). The Delegate also found that “stateless undocumented Faili Kurd[s]” constitute a “particular social group” for the purposes of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (“Refugees Convention”) art 1A (CB 129-130).
However, the Delegate was not satisfied that the Applicant was undocumented or stateless, as the Applicant claimed, finding instead that the Applicant is an Iranian citizen (CB 123, 130). The Delegate was also satisfied that the Applicant was able to subsist in Iran (CB 131). On this basis, and due to the Applicant’s Iranian citizenship, the Delegate was not satisfied that the Applicant would suffer serious harm on account of his race if he were to return to Iran (CB 131). The Delegate therefore found that Australia did not have protection obligations to the Applicant under the Refugees Convention or s.36(2)(aa) of the Act (CB 133, 135).
On 3 February 2016, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the visa (CB 262).
The Tribunal accepted that the Applicant is a Faili Kurd (CB 271 at [38]). However, like the Delegate, the Tribunal was not satisfied that the Applicant was undocumented or stateless, as the Applicant claimed, finding instead that the Applicant is an Iranian citizen (CB 266 at [29]). The Tribunal found that the Applicant was not a member of a “particular social group” constituted by stateless undocumented Faili Kurds and, therefore, did not accept that the Applicant would suffer serious harm on that basis if he were to return to Iran (CB 270 at [33]). The Tribunal therefore found that Australia did not have protection obligations to the Applicant under the Refugees Convention or s.36(2)(aa) of the Act (CB 272 at [46]-[48]).
The Applicant’s amended ground of judicial review is as follows:
1. The Administrative Appeals Tribunal’s (the Tribunal) decision is affected by jurisdictional error because the Tribunal failed to consider, or ignored, important evidence that as a child of Faili Kurd refugees it is unlikely that the applicant could have obtained Iranian citizenship. The Tribunal therefore failed to understand, or deal with, the basis of the applicant’s claim that he had a well-founded fear of persecution in Iran, or would face a real risk of significant harm if returned to Iran, by reason of being a member of the particular social group of undocumented stateless Faili Kurds.
PARTICULARS
(a) In written submissions made on 7 January 2016 and 1 February 2016 the applicant claimed that he had a well-founded fear of persecution in Iran, or would face a real risk of significant harm if returned to Iran, by reason of being a member of the particular social group of undocumented stateless Faili Kurds.
(b) In support of this claim, the applicant:
i. supplied country information that indicated that children of Faili Kurd refugees in Iran were unlikely to be able to obtain Iranian citizenship, and that generally a child born in Iran will have the same status as the child’s father;
ii. stated that his parents had fled Iraq to Iran to escape Saddam Hussein’s regime shortly before his birth;
iii. stated that his father possessed no identification documents recognised by the Iranian regime; and
iv. stated that following the death of his parents he had no documents or other means of proving his identity.
(c) The Tribunal found that the applicant was an Iranian citizen, and so not a member of the particular social group undocumented stateless Faili Kurds at paragraph 29 of its decision. The Tribunal found that the applicant could therefore not have a well-founded fear of persecution or real risk of significant harm on the basis of membership of that group.
(d) Also in paragraph 29 of its reasons, the Tribunal based these findings on country information that indicated few Faili Kurds were likely to remain unregistered in Iran and that Iran had granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin who could prove their Iranian origins.
(e) The Tribunal did not, however:
i. specifically address the country information provided by the applicant;
ii. make any findings concerning the applicant’s statement that his parents had fled Iraq to Iran shortly before the applicant’s birth;
iii. make any findings concerning the applicant’s statement that his father possessed no identification documents recognised by the Iranian regime; or
iv. make any findings concerning the applicant’s statement that following the death of his parents he had no documents or other means of proving his identity.
(f) The Tribunal therefore failed to consider the applicant’s claim that he had a well-founded fear of persecution in Iran, or would face a real risk of significant harm if returned to Iran, by reason of being a member of the particular social group of undocumented stateless Faili Kurds, in the sense that the Tribunal of [sic] failed to understand or deal with the basis of the applicant’s claim.
In the Applicant’s written submissions and at the hearing of this amended application for judicial review, the Applicant addressed only the following matters that the Tribunal was alleged to not have considered or made findings on in making its decision not to grant the Applicant the visa:
a)the Tribunal did not specifically address the country information provided by the Applicant (Ground 1(e)(i) at [13] above); and
b)the Tribunal did not make any findings concerning the Applicant’s statement that, following the death of his parents, the Applicant had no documents or other means of proving his identity (Ground 1(e)(iv) at [13] above).
There is no dispute that the Applicant claims that he is an undocumented stateless Faili Kurd and that, for that reason, if the Applicant returned to Iran he would suffer persecution and/or be at real risk of suffering significant harm.
The written evidence of the Applicant and the submissions made by the Applicant’s representative on his behalf which were before the Tribunal were as follows:
a)
three Statutory Declarations affirmed by the Applicant on
11 December 2012 (CB 69-73), 23 January 2013 (CB 97-99) and 6 January 2016 (CB 199-206);
b)
four submissions made by the Applicant’s representative on his behalf dated 24 January 2014 (CB 90-92), 6 March 2014
(CB 103-110), 7 January 2016 (CB 148-198) and the post-hearing submissions dated 1 February 2016 (CB 246-256).
The evidence which the Applicant submits the Tribunal failed to consider, or ignored, is contained in the submissions made by the Applicant’s representative dated 7 January 2016 and in the post-hearing submissions made by the Applicant’s representative dated
1 February 2016. The evidence relied upon by the Applicant is set out below.
In the submissions made by the Applicant’s representative dated
7 January 2016 under the heading “Identity Documents”, the Applicant’s representative responded to the Delegate’s doubts about the Applicant’s claim that he did not have any Iranian identity documents by submitting the following (CB 169):
…Also relevant is the fact that after his mother died he had no family in Iran to assist with these matters – no one to vouch for his identity or ability to provide any documents as to his background…
In the submissions made by the Applicant’s representative dated
7 January 2016 under the heading “Country Information”, the Applicant’s representative responded to the Delegate’s conclusion that the Applicant is a Faili Kurd but an Iranian citizen as follows (CB 170-171):
The Delegate refers to DFAT country information stating that the vast majority of Faili Kurds are documented in Iran and concludes that the applicant is a Faili Kurd but an Iranian citizen.
With respect, the fact that the majority of Faili Kurds are documented does not establish that the applicant is. As submitted above, when considering the context of the applicant’s life and background in Iran it is quite plausible that he has been undocumented.
The Delegate has failed to refer to other relevant country information in the Departmental advice which supports the applicant’s claims.
We refer to the Departmental Operational advice on Faili Kurds from Iran as follows in relation to the applicant’s background, to his undocumented status and to the difficulties Faili Kurd refugees face in gaining citizenship.
…
Access to Iranian citizenship
3.7. According to the law, Iranian citizenship can be acquired through naturalisation and is accessible to those born in Iran to non-citizen parents (5.17-5.19). In practice, however, persons seeking to acquire Iranian citizenship through naturalisation, including those born in Iran, face a range of difficulties (5.20-5.23). DFAT advised that it is unlikely that a child born to Faili Kurd refugees could acquire Iranian citizenship (5.23)…
(Emphasis in original)
In the Applicant’s written submissions, the Applicant notes that in the course of the hearing held on 27 January 2016, the following statement was made by the Tribunal:[1]
The country information I looked at about Faili Kurds in Iran does suggest that there were quite a lot of Faili Kurds that obtained Iranian citizenship. There’s one report that says that prior to 2003 Iran granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin. The information that does tend to suggest that there are unregistered Faili Kurds, but that their numbers are likely to be quite sort of small, a few thousands. So that information why it is not conclusive that you are an Iranian citizen I’m thinking about your claims that may support the finding that you are an Iranian citizen…
[1]Affidavit of Monica Gabriela Cosereanu filed on 3 November 2017, Annexure MC1 at 13 (Transcript of extracts from Tribunal hearing on 27 January 2016).
In the submissions made by the Applicant’s representative dated
1 February 2016, reference was made to the adverse information put to the Applicant at the Tribunal hearing (CB 247). The submissions then stated the following (CB 247-248):
In relation to Faili Kurds being able to obtain Iranian citizenship we refer to the Departmental Operational Advice of February 2015 in relation to assessing claims of Faili Kurds which indicates that there are significant barriers to Faili Kurds obtaining citizenship in Iran. The information includes the following:
3.4 According to the law, Iranian citizenship can be acquired through naturalisation and is accessible to those born in Iran to non-citizen parents (5.17-5.19). In practice, however, persons seeking to acquire Iranian citizenship through naturalisation, including those born in Iran, face a range of difficulties (5.20-5.23). DFAT advised that it is unlikely that a child born to Faili Kurd refugees could acquire Iranian citizenship (5.23).
3.6 A number of Faili Kurd refugees who could present documentary evidence of their Iranian ancestry were able to obtain Iranian citizenship (5.27). In 2014 DFAT advised that only a very small number of Iraqi refugees would be able to establish Iranian ancestry (5.28).
…
5.23 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]lthough 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. In December 2010, DFAT noted that generally, a child born in Iran will have the same status as the child’s father.
(Footnotes omitted)
Tribunal Decision
The Tribunal commenced its decision, under the heading “CONSIDERATION OF CLAIMS AND EVIDENCE”, by identifying the material before it, which included the submissions made by the Applicant’s representative dated 7 January 2015 and 1 February 2016 (CB 265 at [20]). The reference to the date “7 January 2015” is clearly a typographical error as that submission was dated 7 January 2016. The Applicant has not raised any issues regarding this error.
The Tribunal then proceeded to summarise the Applicant’s claims. Relevantly, for the purpose of these proceedings, the Tribunal said as follows (CB 265 at [21]):
21. The applicant’s claims can be summarised as follows. He was born in 1977 in [omitted], Kermanshan, Iran. He is a stateless Faili Kurd. His parents were forced to leave Iraq due to his father’s role as a Kurdish activist. Shortly after his father arrived in Iran, he managed to obtain a temporary Iranian card under the more common Iranian name [omitted] (even though his name was originally [omitted]). It recorded the name change. He had not seen the card but his mother told him about it. When the Shah was no longer in power, the new Khomeini regime disregarded the documents of the former regime.
The Tribunal noted the Applicant’s claim that his mother and father had died, including the Applicant’s claim about the circumstances in which his father died (CB 265 at [22]). The Tribunal also summarised the Applicant’s further claims regarding his arrest and detention for allegedly participating in a protest and after fabricated charges against him by the authorities; that he was beaten and abused during his detention; that he was in detention for a total period of seven months; and that when he was subsequently released from detention he was followed by a guard (CB 265-266 at [23]-[26]). The Tribunal then summarised the circumstances under which the Applicant claimed he left Iran, including that “...[t]he applicant never had an identity document…” and the Applicant’s claim (subsequently retracted) that he had attempted to obtain an identity document but was unsuccessful (CB 266 at [27]).
The Tribunal’s assessment of the Applicant’s claims under the heading “Undocumented Faili Kurd/Detention claims” is as follows (CB 266-269 at [29]):
29. I have considered carefully the applicant’s claims but I do not find that he is a credible witness. I do not accept that he is an undocumented Faili Kurd and I find that he is an Iranian national. I do not accept that he was ever detained and mistreated or ever been of adverse interest to the Iranian authorities. I do so for the following reasons:
· The applicant gave significant and fundamentally inconsistent evidence on an important matter. In his statutory declaration of 11 December 2012, the applicant stated that he went to obtain a Green card but was told that this was finished and he needed to wait until there was an announcement and that he was not successful. However, he told the Tribunal (and also the delegate at interview) that he had never sought to obtain one because he was scared to get in contact with them because he thought they would question him about his past and his father’s background. He said he had not been truthful and had made up something from his head. He said he thought that if he said he never had applied, he would be asked as to why he never tried and that he was scared in detention. The applicant has also referred to him not being interviewed like this before and that his experience in Iran had contributed to his fear of giving information to authorities. I have considered his explanation, however, I note that the applicant was represented by a solicitor/migration agent when lodging his protection visa application and I do consider that his inconsistency on this matter and preparedness to provide false information in support of his claims detracts from his overall credibility.
· Country information before me indicates that the holders of Green and White (issued to Iraqi refugees) gave holders significant benefits including access to health care and education. The applicant said he had not sought to obtain such documentation because he was afraid as Faili Kurd and due to his family background. However, I note the applicant’s father had died a long time ago in 1986 when the applicant was just 9 years of age and he had resided in Iran for many years as an adult after that. I do not consider it plausible or credible that given the significant benefits that could be obtained from registering that he would not have done so. I consider his evidence in this respect to detract from his credibility.
· In his statutory declaration that accompanied his protection visa and in his entry interview (as referred to in the delegate’s decision, a copy of which was submitted to the Tribunal), the applicant completely failed to refer to his later claims of his father being a Kurdish activist and involved in the [omitted] Party. He also completely failed to refer to being detained for seven months and whipped. At the hearing the applicant commented that his first interview occurred 10 days after he arrived in Christmas Island and was held in a room with a camera and a phone. He said he had a fear of talking about his father. He said he was transferred to different detention centres around Australia and this made him panicky and nervous. He said he faced physical problems with his back (which I accept given the hospital records) and that mentally he deteriorated. He said he did not trust the environment and the interviews. He said his mother had told him about his father on her death bed and warned him not to discuss it with anyone. I have considered his explanation and the submissions of his agent including that his account was consistent with country information that Kurdish fighters fled from Iraq in 1975, that the Iranian authorities target Kurdish activists and their family members and that the claimed 2008 detention was in the period leading up to the 2009 elections. I have also taken into account that he was referred for psychological sessions by his caseworker on 7 May 2013 as he was quite depressed and not copying well with his actual circumstances, though I note this is after the period (in January 2013) where he made the claims. I note in particular that the applicant had been in Australia for four months when he lodged his protection visa and he was represented by a solicitor/migration agent and I do not consider it credible or plausible that he would completely fail to mention such critical matters if they had actually happened and I find this significantly detracts from his credibility.
· The applicant told the Tribunal that he paid 18 million tomans (or approximately AUS$7500) in total to get to Australia through a smuggler. He told the Tribunal that most Iranians worked illegally and that he was able to do this because he worked 14-15 hours every day for 16-17 years and as undocumented person he did not have major purchases such as a car and house. I have taken into account his comments, however country information (referred to in the delegate’s decision) indicates the national average salary is US$500 with labourers and public servants being examples of employees well below that amount. As a tailor working illegally I have significant concerns that he would have been able to save this amount of money to facilitate his journey and I find this further detracts from his overall credibility.
· The applicant told the Tribunal that he had a hernia operation which was provided free of charge to him in a private clinic by a Christian doctor who helped poor people. However, I note that this is a major operation and I have significant concerns that he would be provided such a service free of charge and without documentation and I find this further detracts from his overall credibility.
· The applicant stated he left Tehran airport on a passport that contained his photo and a similar name to his ([omitted]). He said this passport was given to him in the airport by the smuggler one hour before his flight and that he did not know whether it was a genuine or fake passport and he does not know whether a bribe was paid. He said the smuggler told him to go to the gate and try and be the last person. He said he had no difficulties getting through the airport. It was submitted that he suspects that that the passport was issued within the official passport/foreign office by paying a bribe to an officer and that for all intents and purposes the passport appeared genuine. I have considered the country information referred to by the agent including that Iran has a high level of corruption. However, country information before the Tribunal indicates that to obtain an Iranian passport a person needs to go to police station to be finger printed and have their identity checked which the applicant did not do. Furthermore, the Australian Department of Foreign Affairs and Trade (DFAT) have stated that whilst it might be possible to obtain a genuine identification document with the intention of impersonating another person, sophisticated border control procedures would make it difficult to use in order to leave Iran. Country information further indicates although false Iranian passports can be purchased easily on the black market, the authorities can identify these by checking them against the law enforcement database which tracks the issue of passports. Passports are checked at the airport against a computer system which displays the data of the passport holder and a photograph of the passport holder. While bribery is possible, it would be extremely difficult to leave Iran through the airport using a false passport. Considering the whole of the country information and the applicant’s’ account of how he departed Tehran Airport (that he went through the immigration controls by himself without any problems), I consider his ability to depart Iran on a passport detracts from the credibility of his claims.
· I have considered the country reports referred to by the agents, however country information viewed as a whole indicates that the number of unregistered Faili Kurds in Iran is likely to be small. DFAT in December 2014 stated that beginning in the late 1970s, hundreds of thousands of Faili Kurds were stripped of their Iraqi citizenship and expelled from Iraq, mostly to Iran. Estimates of the numbers reported deported range from 130,000 to 300,000 though exact numbers affected are difficult to verify. I have taken into account the country information referred to by the agents concerning the difficulties that Faili Kurds face in obtaining Iranian citizenship, however DFAT have referred to a credible academic report (Geraldine Chatelard, Migration from Iraq between the Gulf and Iraq wars (1990-2003), University of Oxford, 2009) that estimates that prior to 2003, Iran had granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin, who could prove their Iranian origins though in-country sources were unable to verify this information. DFAT also state that it is likely that the majority of Faili Kurds refugees in Iran are registered as refugees. They state that though reliable estimates of the number of unregistered Faili Kurds in Iran are unavailable, a credible academic estimate in 2004 suggested that up to 8000 Faili Kurds remained stateless in Iran (a figure that likely incorporates both registered and unregistered refugees).[2]DFAT had earlier reported in 2010 that approximately 48,000 Iraqi refugees had been registered and they had been told of a further 4,000 unregistered Iraqi refugees.[3] 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 applicant’s claims.
(Footnotes omitted, save for those identifying the country information relied upon by the Tribunal regarding Faili Kurd refugees in Iran in original)
[2] Department of Foreign Affairs and Trade, DFAT Thematic Report Faili Kurds in Iraq and Iran, 3 December 2014.
[3] Department of Foreign Affairs and Trade, Faili Kurds, 18 March 2010 (CX241170).
In relation to the Applicant’s claim that he is an undocumented stateless Faili Kurd, the Tribunal stated as follows (CB 269 at [30]):
30. Given my highly significant concerns about the applicant’s credibility, I do not accept that he is a stateless and undocumented Faili Kurd. I find that he is in fact an Iranian citizen who left Iran lawfully on his own passport. I find that Iran is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act. I do not accept that he was not allowed to work legally and denied access to services such as medical and education. I do not accept that he could not get a driver’s licence, marry, buy a car or other property or travel out of his home area. I do not accept that he will be unable to subsist and note that was able to work for many years continuously.
The Tribunal then proceeded to reject all of the Applicant’s other claims due to its “highly significant concerns about the applicant’s credibility” (CB 269-270 at [31]-[32]) and stated as follows (CB 270 at [33]):
33. Given my findings, I do not accept that the applicant is a member of particular social groups consisting of “stateless Faili Kurds in Iran”, “undocumented Faili Kurds in Iran” or “undocumented persons in Iran”. Considering the applicant’s individual circumstances, I find that he does not face a real chance of persecution in the reasonably foreseeable future on these bases. Given my findings, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future for reasons of his membership of a particular social group consisting of his family, his race or his actual or imputed political opinion.
The Tribunal then proceeded to consider the circumstances of Faili Kurds in Iran and, relevantly, said as follows (CB 271 at [38]):
38. The applicant spoke to the Tribunal through a Faili Kurd interpreter and I accept that he is a Faili Kurd and have taken into account the country information referred to by his agents including that in relation to Kurds in general. However, in making my findings I have given greater weight to information from DFAT as it is authoritative and recent and it has been specifically charged with the provision of such advice to government decision-makers. DFAT have reported that following discussions with a range of credible non-government sources they were not aware of any cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. They have also said that Faili Kurds in Iran who are also Iranian citizens can access services on the same basis as other Iranian citizens and that they appear to face little to no discrimination in access to services on the basis of their ethnicity or religion. They also stated that Faili Kurds who are Iranian citizens have access to employment on the same basis as other Iranian citizens…
Tribunal’s Statutory Task on Review – Relevant Principles
The Applicant’s principal ground of judicial review articulated in these proceedings is that the Tribunal failed to consider, or ignored, cogent and material evidence in support of the Applicant’s claim that he is an undocumented stateless Faili Kurd and that, for that reason, if the Applicant returned to Iran he would face persecution and/or be at real risk of suffering significant harm. Accordingly, the Applicant submits that the Tribunal misunderstood his claim thereby giving rise to jurisdictional error.
The Applicant further submits that the Tribunal failed to consider an integer of the Applicant’s claim; namely, that after the Applicant’s mother’s death, the Applicant had no one to vouch for his identity or ability to obtain identifying documentation. The Applicant submits that the failure of the Tribunal to consider this integer of his claim amounts to jurisdictional error.
The Tribunal’s review function requires it to consider all of the claims and integers of the claims made by an applicant (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE”) at [55]-[57]). This obligation includes not only claims expressly put by an applicant, but also claims that squarely arise, or are sufficiently raised, on the material before the Tribunal (NABE at [58]). The Full Court of the Federal Court of Australia in NABE said as follows (NABE at [63]):
63. It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances…
However, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [45]-[47], the Full Court of the Federal Court stated as follows:
45. …If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In support of his argument that the Tribunal overlooked, or failed to consider, cogent evidence that substantiated the Applicant’s claim, the Applicant relies upon the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”); the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (“SZRKT”); and the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 (“CZBP”).
The Minister accepts that a critical claim of the Applicant was that he was an undocumented stateless Faili Kurd, but argues that the Tribunal properly directed itself to and considered this claim before it rejected the claim based on the view the Tribunal took of the Applicant’s credibility. The Minister submits that the country information addressed by the Tribunal was, in reality, background information considered in the context of the Tribunal making a number of adverse credibility findings for reasons that led the Tribunal to reject the Applicant’s claim.
The Minister submits that MZYTS is to be understood as a case in which the Tribunal’s failure to consider evidence reflected a failure to consider the claim itself (MZYTS at [65]). The Minister notes that the Full Court of the Federal Court in MZYTS described the relevant evidence as an “essential integer” of the visa applicant’s claim (MZYTS at [52]).
In oral submissions before this Court, Counsel for the Minister distinguished the circumstances before the Full Courts of the Federal Court in MZYTS and CZBP and relied on the decision of Bromberg J in ACE15 v Minister for Immigration and Border Protection[2017] FCA 1054 (“ACE15”) for the proposition that the error in MZYTS was not simply a matter of overlooking, or failing to consider, important, or even potentially dispositive, pieces of evidence in coming to a decision, but, rather, a failure on the part of the Tribunal to form a “correct understanding of the basis” of the claim (see ACE15 at [34]).
The Authorities
In MZYTS, the visa applicant claimed to fear persecution because he was a member and supporter of the Movement for Democratic Change (“MDC”), the leading opposition political party in Zimbabwe. The circumstances in MZYTS were as follows (MZYTS at [3]):
3. …The first respondent had identified cyclical and, in 2011, increasing risks to actual or perceived members and supporters (as he claimed to be) of the Movement for Democratic Change (MDC), the leading opposition political party in Zimbabwe. Those risks were said to have increased because of speculation about, and preparations for, possible elections in 2011 and the conduct of constitutional reform meetings, as well as an accompanying generalised increase in political violence, said to be a feature of election cycles in Zimbabwe…
The jurisdictional error asserted by the visa applicant in MZYTS was the failure of the Tribunal to consider post-hearing submissions containing country information regarding the escalating volatility in violence towards MDC supporters in the context of the forthcoming elections in Zimbabwe.
The Full Court of the Federal Court in MZYTS commenced its consideration of the grounds of appeal by observing the following (MZYTS at [32], [34]):
32 . The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
…
34 . Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
The Full Court in MZYTS said that given the visa applicant’s claim to fear persecution, the Tribunal was required to assess and determine what might happen to the visa applicant if he were compelled to return to Zimbabwe in 2011 or in the near future (MZYTS at [37]). The Full Court went on to state that the Tribunal could not discharge its statutory review task “…without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground…” (MZYTS at [38]). The Full Court held that “[t]he Tribunal’s reasons [did] not disclose that it understood and undertook this task…” (MZYTS at [39]). The Full Court noted that the Tribunal’s reasons in its decision record reflected precisely what was put to the visa applicant during the hearing, which suggested no re-evaluation by the Tribunal of what was put to it by the visa applicant in the post-hearing submissions referring to country information (MZYTS at [41]). The Full Court said as follows (MZYTS at [41]):
41. …the reasons suggest no consciousness of the contents of these post-hearing materials (as opposed to their existence), although the effect of that material was to support a proposition that circumstances in Zimbabwe had become increasingly dangerous for actual or perceived MDC supporters, and incidents of human rights abuses and serious political violence in Zimbabwe were growing during 2011. We are not suggesting the Tribunal was bound to accept the effect of that material, we are emphasising the absence of any consideration of it.
Relevantly, the Full Court then said as follows (MZYTS at [46]):
46. Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a)…
At the hearing before this Court, the Minister relied on the following extracts from MZYTS in support of its submissions (MZYTS at [52], [65]):
52 . In the present case, the issue is squarely whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant’s claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
…
65 . Here, the visa applicant’s contention has never been that the Tribunal failed to take into account a piece of evidence. Rather, it is that the Tribunal did not perform its statutory task, because it failed to determine the visa applicant’s claim that the risk to him on return to Zimbabwe from early 2011 onwards had increased because of the election cycle and consequent political violence in that country, together with his status as an actual or perceived MDC supporter.
(Emphasis in original)
However, the Full Court in MZYTS went on to approve the decision of Robertson J in SZRKT by stating the following (MZYTS at [68]):
68. In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”…
(Emphasis in original)
The Full Court then said (MZYTS at [70]):
70 . With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.
In SZRKT, the Tribunal rejected a visa applicant’s claims because it found the visa applicant not to be a credible witness. The adverse credibility finding was mainly based on the Tribunal’s conclusion that the visa applicant’s claim to have studied Persian was implausible. The primary judge found that the Tribunal ignored an academic transcript that tended to corroborate the visa applicant’s claim and held that this amounted to jurisdictional error. Justice Robertson upheld this finding in SZRKT and stated the following (SZRKT at [111]-[112]):
111. In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112. As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims…
In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (“SZSRS”), the Full Court of the Federal Court said the following (SZSRS at [55]):
55. The circumstances of this case are relevantly indistinguishable from the circumstances in SZRKT. Central to the Tribunal’s reasons for rejecting SZSRS’s claims, as articulated by her father, was supposedly conflicting evidence about whether she had been baptised. Like the ignored academic transcript in SZRKT, the Reverend Lee’s letter was capable of corroborating the father’s evidence that she had been baptised. It was also direct evidence in support of the claim that SZSRS and her family were Christians…
In ACE15, a decision relied upon by the Minister in these proceedings, Bromberg J, referring to the decision in MZYTS, said as follows (ACE15 at [31]-[34]):
31. In that case, the Full Court found that the Tribunal, having accepted that the visa applicant was a former member of the MDC opposition political party in Zimbabwe, committed jurisdictional error through its reliance on outdated information to find that the visa applicant’s fears of politically-motivated violence were not well-founded, without reference to the more current information put to it by the applicant’s representatives which indicated increasing political violence in Zimbabwe in the lead up to an election.
32. The appellant relied upon the Full Court’s reasoning in MZYTS to contend for the existence of a general proposition that where the Tribunal fails to consider evidence that, had it been considered and dealt with, may have been dispositive of a critical issue, then the Tribunal will have committed jurisdictional error. The facts of MZYTS were said to be especially pertinent to the present appeal given that the failure in that case was a failure to take account of a fundamental change in circumstances, as was said to be the case here.
33. I do not accept that MZYTS stands for the broad proposition contended for by the appellant. Critical to the Full Court’s reasoning was that the failure of the Tribunal in that case was such that it betrayed a misapprehension of the nature of the claim which it had been invited to determine and a miscarriage of the task it was required to perform…
34 . This was not simply a matter of overlooking or failing to consider important, or even potentially dispositive, pieces of evidence in coming to a decision. The failures pointed to by the Full Court revealed that the Tribunal in that case had failed to form a “correct understanding of the basis” of the claim. In particular, it had not appreciated that the risk to the visa applicant was said to arise, or at least to be exacerbated, by the changed circumstances brought about by the prospect of elections. The Tribunal thereby failed to perform its statutory task.
In CZBP, the visa applicant claimed to fear persecution if she returned to Iran because the court in Iran had convicted her and sentenced her to 20 years’ imprisonment and 150 lashes (CZBP at [5]). The evidence that the visa applicant claimed the Tribunal had not considered was an email sent by her lawyer in Iran confirming her conviction, and stating that the verdict was binding and would be executed if the visa applicant returned to Iran (CZBP at [31]). The visa applicant had earlier provided to the Tribunal the document which she claimed to contain the verdict sentencing her to imprisonment and 150 lashes (CZBP at [8]) (“the verdict document”). The email sent by the visa applicant’s lawyer was provided to the Tribunal after the Tribunal hearing and in response, it appears, to the Tribunal’s request (CZBP at [30]). The Tribunal held that the verdict document was not a genuine document. Accordingly, the Tribunal rejected the visa applicant’s claim that she was convicted of an offence and sentenced to imprisonment and lashes (CZBP at [44]).
The Full Court in CZBP said the following (CZBP at [100]):
100. …While it is true to say that the Tribunal was aware of the email, and indeed set out the translation of it at [74] and referred to it in [91], it did not assess its genuineness or take into account its contents in arriving at the important finding that it was unable to be satisfied that the two subpoenas and the verdict originated in Iran. This finding was closely related to the critical finding that the verdict document was not a genuine document. This finding in turn informed the Tribunal’s conclusion that the visa applicant was not the subject of court proceedings and that she was therefore not a person to whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
The Full Court in CZBP described the jurisdictional error arising from the Tribunal’s failure to consider the email from the visa applicant’s lawyer regarding the verdict and sentence imposed on the visa applicant by an Iranian court as follows (CZBP at [102]):
102. …The Tribunal could not permissibly reach the conclusion it did without taking into account the email which had been put forward by the visa applicant as corroborative of her claim as evidenced by the verdict document. The Tribunal either had to reach a conclusion that the email was not genuine or, if it found the email genuine, consider why it did not support the visa applicant’s claim. Not only was the email important corroborative material from the visa applicant’s perspective but also its genuineness, or otherwise, or its contents were on the critical path to the conclusion reached by the Tribunal. In our opinion, this demonstrates serious error amounting to a failure on the part of the Tribunal to perform its statutory task. Again this is a matter of the process by which the Tribunal arrived at its conclusion. Our conclusion does not involve any disagreement with the factual findings or merits of the decision: compare SZJSS at [36]. This is because the Tribunal has not made the relevant choice or choices and that fact-finding remains to be done by that body. This is not a case of illogicality or irrationality as considered in SZMDS at [129]–[130]. We accept, as explained in Durairajasingham at [65], that s 430 of the Act does not require a line-by-line refutation of all the evidence but, as McHugh J there explained, whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. In addition, in our opinion, in light of its reasoning, it could not be said that the Tribunal was of the opinion that the genuineness and contents of the email were not material to its decision: compare Yusuf at [89].
Judicial Review
The submissions of both the Applicant and the Minister have already been summarised (see above at [29]-[30], [34]-[36] respectively).
The Applicant submits that the Tribunal failed to consider, or ignored, important evidence that, as a child of Faili Kurd refugees, it is unlikely that the Applicant could have obtained Iranian citizenship. The Applicant submits that the Tribunal therefore failed to understand, or deal with, the basis of the Applicant’s claim that he is an undocumented stateless Faili Kurd and that, for that reason, if the Applicant returned to Iran he would face persecution and/or be at real risk of suffering significant harm.
The Applicant submits that in making its decision to refuse to grant the Applicant the visa, the Tribunal failed to consider country information contained in the written submissions made by the Applicant’s representative dated 7 January 2016 and 1 February 2016, which Counsel for the Applicant submits contained the most recent Department of Foreign Affairs and Trade (“DFAT”) country information. The relevant country information is as follows (CB 170-171, 247-248):
a)first, it is unlikely that a child born to Faili Kurd refugees could acquire Iranian citizenship;
b)second, a number of Faili Kurd refugees who could present documentary evidence of their Iranian ancestry were able to obtain Iranian citizenship. However, only a very small number of Iraqi refugees would be able to establish their Iranian ancestry; and
c)third, although officially it would be possible to apply for citizenship, in practice Iraqi refugees and their children, including those born in Iran, are extremely unlikely to be granted Iranian citizenship. Generally, a child born in Iran will have the same status as the child’s father.
With respect to the Minister’s characterisation of the decisions in MZYTS and ACE15, Counsel for the Applicant submits that these formulations should not distract from the fact that the fundamental question must be the importance of the material to the exercise of the Tribunal’s function and, thus, the seriousness of any error (see SZRKT at [112]).
Counsel for the Applicant submits that the Minister’s submission that the circumstances in this case can be distinguished from those in MZYTS should not be accepted by the Court. Counsel for the Applicant submits that the issue in the present case is the Applicant’s claim to be an undocumented stateless Faili Kurd and that evidence was led by the Applicant at the Tribunal hearing to contradict country information raised by the Tribunal, that a very small number of Faili Kurds were unregistered, and to support the Applicant’s claim that it was unlikely, as a Faili Kurd refugee, that he would be documented.
Counsel for the Applicant submits that the circumstances in MZYTS and in the present case are analogous. Counsel for the Applicant submits that in MZYTS, the issue was whether, as a supporter or member of the MDC, the visa applicant would be exposed to persecution if he were to return to Zimbabwe. The evidence that was led in support of this claim in MZYTS was that supporters of the MDC would be at greater risk of violence because of the forthcoming election and other political developments. Counsel for the Applicant submits that in the present case, the Tribunal accepted that the Applicant was a Faili Kurd living in Iran and the evidence ignored was provided to the Tribunal to support the Applicant’s claim that persons in his position were more likely to be undocumented or stateless.
Counsel for the Applicant submits that there can be no doubt from the Tribunal’s consideration of the Applicant’s claim to be undocumented that the Tribunal relied on country information to make its central finding that the Applicant was an Iranian citizen.
Relying on the Full Court of the Federal Court decision in CZBP (see [102] extracted in full at [50] above), Counsel for the Applicant submits that the Tribunal was required to assess the corroborative evidence before it in support of the Applicant’s claims because the evidence was important corroborative material and its contents were critical to the conclusion reached by the Tribunal.
Counsel for the Applicant submits that the Tribunal was, therefore, obliged to specifically consider the country information provided to it by the Applicant (see [52]-[53] above). Counsel for the Applicant submits that the Tribunal’s general statement that “I have considered the country reports referred to by the agents…” (CB 269 at [29]) could not satisfy the Court that the Tribunal actually considered the cogent and material evidence provided by the Applicant.
Counsel for the Applicant submits that if the formulation in ACE15 is accepted by the Court, then when regard is had to the Tribunal’s assessment of the Applicant’s claim, it can be said that the Tribunal failed to understand the basis of the Applicant’s claim.
Counsel for the Applicant concedes that the Tribunal found the Applicant not to be credible and that he was an Iranian national and then set out its reasons under seven detailed bullet points (CB 266-269 at [29]). However, Counsel for the Applicant submits that in the last of the reasons given, the Tribunal said as follows (CB 269 at [29]) :
29. …
…I have taken into account the country information referred to by the agents concerning the difficulties that Faili Kurds face in obtaining Iranian citizenship, however DFAT have referred to a credible academic report (Geraldine Chatelard, Migration from Iraq between the Gulf and Iraq wars (1990-2003), University of Oxford, 2009) that estimates that prior to 2003, Iran had granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin, who could prove their Iranian origins though in-country sources were unable to verify this information…
Counsel for the Applicant submits that the Tribunal’s reasoning was misconceived because the country information relied upon by the Tribunal concerned Faili Kurds who could prove their Iranian origins. However, the claim and country information that the Applicant alleges the Tribunal ignored was that the Applicant could not prove his Iranian origins. Counsel for the Applicant argues that this misconception demonstrates that the Tribunal failed to understand the very basis of the Applicant’s claim.
Counsel for the Applicant also submits that it can be inferred from the following matters that the Tribunal failed to consider the Applicant’s corroborative evidence provided in the post-hearing submissions dated 1 February 2016, including the information that few Iraqi refugees could provide the necessary proof of Iranian ancestry and that generally a child born in Iran will have the same status as the child’s father.
First, the Tribunal’s reasoning regarding the relatively small number of Faili Kurds remaining undocumented in Iran (CB 269 at [29]) is put in terms that are materially the same as those used by the Tribunal to raise those concerns in the course of the Tribunal hearing (see extract at [20] above). In this sense, Counsel for the Applicant argues that the circumstances are similar to those which existed in MZYTS, where the Full Court of the Federal Court said the following (MZYTS at [41]):
41. As the Tribunal’s reasons disclose (at [58]), this is the statement which was put, verbatim, to the visa applicant at the hearing on 31 January 2011. This is also the statement, verbatim, which appears in the single finding of the Tribunal at [87] of its reasons, to which we have already referred. Chronologically, in between these two events is the post-hearing submission and the considerable material to which it refers. Nothing in the Tribunal’s reasons suggests any re-evaluation by the Tribunal of what it put to the visa applicant at the hearing on this point, in the light of the post-hearing submission and the additional country information. Rather, the reasons suggest no consciousness of the contents of these post-hearing materials (as opposed to their existence), although the effect of that material was to support a proposition that circumstances in Zimbabwe had become increasingly dangerous for actual or perceived MDC supporters, and incidents of human rights abuses and serious political violence in Zimbabwe were growing during 2011. We are not suggesting the Tribunal was bound to accept the effect of that material, we are emphasising the absence of any consideration of it.
The Applicant further submits that the very short time between the Tribunal receiving the Applicant’s post-hearing submissions, at 5.39pm on 1 February 2016 (CB 245), and the time at which the Tribunal’s decision record was certified by the Tribunal member, at 11.24am on
3 February 2016 (CB 262), supports the Applicant’s submission that the Tribunal failed to consider the evidence provided to it that corroborated the Applicant’s claim to be undocumented.
The Applicant further submits that the components of his claim that he is an undocumented stateless Faili Kurd were his claims that:[4]
a)his parents left Iraq for Iran to escape Saddam Hussein’s regime;
b)he was born in Iran shortly thereafter;
c)after the Shah was deposed, the Islamic regime in Iran no longer recognised the temporary identity documents his father obtained on arrival in Iran;
d)his father did not have any other identity documents from that time on; and
e)after his mother died, he had no family in Iran to vouch for his identity or ability to provide documents as to his background.
[4] Outline of Submissions filed by the Applicant on 31 October 2017 at 9, 11.
The Applicant characterises the component claim identified at [66](e) above as an integer of his claim. The Applicant submits that this “integer of claim” arises from the submissions made by the Applicant’s representative dated 7 January 2016 (CB 169).
The Applicant submits that if the components of his claims to be undocumented were accepted by the Tribunal, then, according to the country information upon which he relied, the Applicant would be unlikely to be able to become an Iranian citizen as he would be a child of Faili Kurd refugees and would have the same undocumented refugee status as his father. The Applicant submits that, in the context of these claims, the Tribunal failed to consider the evidence before it and make findings in relation to these matters. Counsel for the Applicant submits that the components of the Applicant’s claim, particularly the integer of claim at [66](e) above, if resolved in one way or another, would or could be dispositive of the review. Accordingly, the Applicant submits that the failure of the Tribunal to consider and make relevant findings on the integers of claim gave rise to jurisdictional error.
Counsel for the Minister articulated two aspects of the Minister’s submissions:
a)first, that there is a distinction between circumstances in which the Tribunal misunderstands the very character of the Applicant’s claim, or fails to take into account information that is at the very heart of the Applicant’s claim, and those circumstances in which the Tribunal fails to deal with evidence which involves matters of a background relevance; and
b)second, in contrast to the decisions in MZYTS, SZRKT and CZBP, the Tribunal in these proceedings properly considered the material most relevant to the issues it was required to determine and made findings of fact that it was required to make in order to deal with the claims that were largely particular to the Applicant.
Counsel for the Minister submits that both the country information relied upon by the Applicant in support of his claim and the component elements of the claim as identified by the Applicant (see [66] above) fall within the category of background information. Counsel for the Minister submits that the statement made by the Applicant’s representative in the submissions dated 7 January 2016 (CB 169), that after the Applicant’s mother died there was no one to vouch for the Applicant’s identity or ability to obtain identification documents, was considered when the Tribunal referred to the Applicant’s “family background” in the second bullet point of its reasons (CB 267 at [29], extracted in full at [25] above).
Counsel for the Minister emphasises that the Tribunal considered the country information provided by the Applicant as background information but ultimately made its decision, rejecting the Applicant’s claim to be undocumented and stateless, having particular regard to the Applicant himself and the credibility of the Applicant’s claims as assessed in the bullet points of the Tribunal’s reasoning (CB 266-269 at [29]).
Counsel for the Minister developed the Minister’s argument that the circumstances of this case are to be distinguished with those in MZYTS and CZBP as follows.
Counsel for the Minister commenced by noting that in MZYTS, the Tribunal had accepted that the Applicant was a member of a particular political group and the question the Tribunal needed to decide was how a member of such a group would be treated when returning to a country in the midst of an election. Counsel for the Minister submits that in MZYTS, the Tribunal fell into jurisdictional error because it failed to consider the most up-to-date and most relevant country information to the Applicant’s claim. Counsel for the Minister argues that this is evident from the Full Court of the Federal Court’s decision (MZYTS at [37]-[38], [44]).
Counsel for the Minister submits that it is evident that the contested area for the Tribunal in MZYTS was a matter not specifically about the Applicant and, in that context, the country information was the most important information for the purpose of the Tribunal completing its statutory task.
Counsel for the Minister noted the circumstances in CZBP (summarised at [48] above) and submitted that the relevant email in that case provided an explanation about the verdict and was therefore at the very heart of the visa applicant’s claim. The Full Court of the Federal Court found that the Tribunal’s failure to consider the email amounted to jurisdictional error.
Counsel for the Minister submits that in the present case, the Tribunal clearly understood the character of the Applicant’s claim, which was that the Applicant was undocumented and stateless. Counsel for the Minister further submits that the Tribunal understood the material that had been put to it by the Applicant and referred to that material in making its decision.
Counsel for the Minister submits that what is significant in this case and what distinguishes it from those decisions relied upon by the Applicant, is that the Tribunal set out a number of reasons in its decision record for its finding that the Applicant was an Iranian citizen and that the Applicant was not credible. Counsel for the Minister submits that when regard is had to the reasoning in the bullet points of the Tribunal’s assessment of the Applicant’s claims (CB 266-269 at [29]), it is clear that the Tribunal had considered matters that were all specifically related to the Applicant’s evidence and which led to the Tribunal making an adverse finding about the credibility of the Applicant’s claim to be undocumented. Counsel for the Minister submits that these reasons did not depend upon background or country information that the Applicant had provided to the Tribunal.
Counsel for the Minister expanded on this point in oral submissions by noting that in the first bullet point of the Tribunal’s assessment (CB 266-267 at [29]), the Tribunal deals with the Applicant’s evidence which goes to the very heart of whether or not the Applicant is a person who could have obtained the relevant identification documents. Counsel for the Minister then noted that it was revealed to the Tribunal that the Applicant had not been truthful in his earlier evidence and that the Tribunal did not accept the Applicant’s explanation for his initial untruthfulness. Counsel for the Minister noted that in the second bullet point of its assessment, the Tribunal considered the Applicant’s evidence that he had not sought to obtain identity documents because he was afraid to do so as a Faili Kurd and due to his family background (CB 267 at [29]). However, the Tribunal did not accept, given the importance of such documentation, that the Applicant would not have made any attempt to obtain it. Counsel for the Minister argued that it can be inferred from the Tribunal’s findings that the Tribunal did, as it stated, have regard to the Applicant’s family background, including the fact that the Applicant’s mother had passed away and that the Applicant did not have family to assist him.
Counsel for the Minister submits that the last bullet point of the Tribunal’s assessment must be understood in the context of the Tribunal’s concluding statement in that bullet point that “…[t]hough 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 applicant’s claims” (CB 269 at [29]).
Counsel for the Minister submits that this concluding statement demonstrates that the Tribunal did not place significant weight on the country information but understood it on the basis that it indicated that the material might make matters of fact more or less likely.
With respect to the Applicant’s submission that the Applicant had provided to the Tribunal in the post-hearing submissions the most recent DFAT information, Counsel for the Minister argues that although the information is described by the Applicant’s representative as “Departmental Operational Advice of February 2015” (CB 247), it is evident from the content of that country information provided by DFAT, which the Applicant relies upon as cogent and important information to the substantiation of his claim, is in fact derived from a December 2014 DFAT report (see CB 247-248 at sub-paras.[3.6], [5.23]). Counsel for the Minister submits that it is evident from the statement in the last bullet point of the Tribunal’s assessment, that “…DFAT in December 2014 stated that beginning in the late 1970s…” (CB 269 at [29]), that the DFAT country information referred to by the Tribunal was the same as that provided by the Applicant’s representative. Counsel for the Minister submits that the Applicant’s representative referred in the post-hearing submissions to different aspects of the same source of country information, but that, ultimately, the Tribunal relied upon different aspects of that country information, which it was entitled to do.
Counsel for the Minister submits that the matters relied upon by the Applicant for the proposition that the Tribunal failed to deal with evidence material to the Applicant’s claim or integer of claim were, in the context of the Tribunal’s decision, only matters of background and, in any event, were subsumed in the larger findings of the Tribunal about the Applicant’s credibility and that the Applicant was in fact a person who could obtain identification documents.
In reply to the Minister’s submissions regarding the circumstances in MZYTS and CZBP, Counsel for the Applicant submits that in this case, the Tribunal accepted the Applicant’s claim that he was a Faili Kurd and that the country information contained in the submissions made by the Applicant’s representative to the Tribunal, both before and after the Tribunal hearing, was only in relation to Faili Kurds in Iran.
In reply to the Minister’s submission that the Tribunal’s reference to “family background” included consideration of the Applicant’s claims that his mother had passed away and that the Applicant did not have family to assist him obtain documentation, Counsel for the Applicant submitted that it was evident from the context within which that phrase was used that the reference by the Tribunal to the Applicant’s family background was only in relation to the Applicant’s claim that his father was a Kurdish activist and was killed in battle.
Consideration
There are two limbs to the Applicant’s amended ground of judicial review. The first limb is that the Tribunal overlooked, or failed to consider, evidence that was cogent and material to the basis upon which the Tribunal rejected the Applicant’s claim that he was an undocumented stateless Faili Kurd. The Applicant submits that the Tribunal, therefore, misunderstood, or failed to deal with, this claim. Accordingly, the Applicant submits that this failure of the Tribunal amounted to jurisdictional error.
The second limb of the Applicant’s amended ground of judicial review is that the Tribunal overlooked, or failed to consider, an integer of claim made by the Applicant; namely, that the Applicant had no means available, after his mother’s death, to obtain documents to prove his identity to the Iranian authorities. This integer of claim is identified by the Applicant in the written submissions filed for the purpose of these proceedings, where the Applicant asserts that the Tribunal failed to make findings regarding the component elements of his claim (see [66] above).
I shall first consider the Applicant’s submission that the Tribunal overlooked, or failed to consider, cogent evidence which was material to the Tribunal’s exercise of its statutory function on review.
There is a dispute between the Applicant and the Minister regarding the characterisation of the evidence, which, if a tribunal in the exercise of its statutory function overlooks or fails to consider, gives rise to jurisdictional error.
In MZYTS, the Full Court of the Federal Court emphasised that the jurisdictional error arose not out of the failure by the Tribunal to take into account a piece of evidence but, rather, out of the failure by the Tribunal to perform its statutory task on the basis that it failed to determine the visa applicant’s claim to fear persecution if returned to Zimbabwe (MZYTS at [65]). The failure of the Tribunal to determine the visa applicant’s claim arose in the circumstances of MZYTS because the Tribunal failed to consider evidence led by the visa applicant which directly corroborated the visa applicant’s claim and contradicted information raised by the Tribunal at the hearing.
I do not accept the Minister’s proposition that the Full Court in MZYTS described the relevant evidence as an “essential integer” of the visa applicant’s claim (MZYTS at [52]). In my opinion, the statement that “…[t]he issue here was, as we have explained above, an essential integer of the visa applicant’s claim…” (MZYTS at [52]) refers to the visa applicant’s claim of increasing risks to MDC supporters arising from potential elections and a general increase in violence in Zimbabwe. This was the essential integer of claim made by the visa applicant in MZYTS. The evidence led in MZYTS was evidence, being country information, which both directly corroborated this integer of claim and contradicted information raised by the Tribunal at the hearing. In my opinion, this is the context in which his Honour Bromberg J held in ACE15 that the evidence relied upon by a visa applicant must reveal that the Tribunal had failed to understand the basis of the visa applicant’s claim or integer of claim (ACE15 at [34]).
The evidence in question must be cogent and material to or directed to corroborating a visa applicant’s claim or integer of claim. However, this is not to be considered in a vacuum as the question must be the importance of the material to the exercise of the Tribunal’s statutory function or its assessment of a visa applicant’s claims (see SZRKT at [111]-[112]).
It therefore follows in this case that the significance and cogency of the material to the Tribunal’s rejections of the Applicant’s claim to be an undocumented and stateless Faili Kurd refugee must have regard to the reasons given by the Tribunal for rejecting that claim. These reasons are set out in the Tribunal’s decision record (CB 266-269 at [29], extracted in full at [25] above) and each reason is set out in a separate bullet point within the relevant paragraph.
At the commencement of the Tribunal’s assessment of the Applicant’s claims (CB 266 at [29]), the Tribunal stated that it considered the Applicant’s claims but did not find that the Applicant was a credible witness for reasons which are set out in the seven bullet points that follow. When regard is had to each of the Tribunal’s reasons for rejecting the Applicant’s claims, it is apparent that the Tribunal did so predominantly because it did not find the Applicant’s evidence to be credible.
The findings set out by the Tribunal in the seven bullet points can be summarised as follows:
a)firstly, the Tribunal found that the Applicant’s concession that he was not truthful in his initial claim that he had attempted to obtain identity documents, which he subsequently recanted, detracted from the Applicant’s overall credibility;
b)second, the Tribunal found that the Applicant’s claim that he did not seek to obtain documentation because he was afraid to do so as a Faili Kurd and due to his family background was not credible or plausible. The Tribunal again found that this evidence detracted from the Applicant’s credibility;
c)third, the Tribunal found the Applicant’s failure in his initial claims for protection to claim that his father was a Kurdish activist and that the Applicant himself was detained and tortured for period of seven months implausible and lacking in credibility and, again, found that this “significantly detract[ed] from [the Applicant’s] credibility” (CB 267 at [29]);
d)fourth, the Tribunal made it plain that it had significant concerns with the Applicant’s evidence that, as a tailor working illegally, he could save the money required for his journey to Australia and found that “this further detract[ed] from [the Applicant’s] overall credibility” (CB 268 at [29]);
e)fifth, the Tribunal disbelieved the Applicant’s evidence that he would undergo a hernia operation without documentation and found that “this further detract[ed] from his overall credibility” (CB 268 at [29]);
f)sixth, the Tribunal disbelieved the Applicant’s evidence that he obtained a fake passport which he used to depart Tehran airport and said that “[the Applicant’s] ability to depart Iran on a passport detracts from the credibility of his claims” (CB 269 at [29]); and
g)finally, the Tribunal stated that it had considered the country reports referred to by the Applicant’s agents and had referred to country information as a whole. The Tribunal stated in conclusion that “…[t]hough 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 applicant’s claims” (CB 269 at [29]).
This was not a case where there was one single finding of adverse credibility which formed a critical path to the Tribunal’s rejection of the Applicant’s claim. Rather, in this case, in rejecting the Applicant’s claim that he was an undocumented and stateless Faili Kurd, the Tribunal, in my opinion, adopted a nuanced approach to the question of credibility identifying numerous bases, having considered the Applicant’s evidence, for its adverse findings of credibility.
Furthermore, I am not satisfied that the Tribunal’s consideration of country information was material to its rejection of the Applicant’s claim to be an undocumented stateless Faili Kurd. The reliance by the Tribunal on the country information was qualified. The Tribunal stated that the country information was not conclusive of itself but held that its view of the country information, that there was likely a small number of unregistered Faili Kurds, was a further reason for doubting the Applicant’s credibility (CB 269 at [29]).
In my opinion, having regard to the Tribunal’s reasons articulated in its decision record, it cannot be said that the country information regarding Faili Kurds in Iran was critical to the Tribunal’s reasoning, which formed the basis for its rejection of the Applicant’s claim that he was an undocumented stateless Faili Kurd.
The Applicant puts his case in relation to the country information on a further basis, which is that it was the most recent country information and was cogent evidence which the Tribunal ought to have taken into account in making its decision.
I reject the Applicant’s claim that the country information contained in the submissions made by the Applicant’s representative was the most recent country information. It is to be noted that both the Applicant and the Tribunal referred to country information contained in a DFAT report. Although the Applicant’s representative, in the submissions dated 1 February 2016, referred to the “Departmental Operational Advice of February 2015” (CB 247), I am not satisfied that the country information relied upon was actually dated February 2015. First, the reference to the “Departmental Operational Advice of February 2015” is not sourced by way of a footnote. Secondly, the extracts said to come from that 2015 report refer twice to DFAT information dated 2014 – firstly, where it is stated that “…[i]n 2014 DFAT advised that only a very small number of Iraqi refugees would be able to establish Iranian ancestry…” (CB 247 at sub-para.[3.6]); and secondly, where it is stated that “[t]he 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…” (CB 248 at sub-para[5.23]).
The Tribunal, likewise, referred to the contents of a report by “DFAT in December 2014” as well as an earlier DFAT report dated 2010 (CB 269 at [29]). Furthermore, the Tribunal said “…I have taken into account the country information referred to by the agents concerning the difficulties that Faili Kurds face in obtaining Iranian citizenship…” (CB 269 at [29]). These difficulties were the very issues raised by the country information extracted by the Applicant’s representative in the post-hearing submissions dated 1 February 2016.
In my opinion, it is more probable than not that the country information provided by the Applicant’s representative came from a DFAT report dated 2014. The Tribunal clearly considered information from a DFAT report dated 2014. Accordingly, in my view, it is reasonable to assume that the country information relied upon by the Applicant came from the same source or report referred to by the Tribunal in its reasoning (CB 269 at [29]). It is, therefore, evident that the Tribunal had regard to relevant country information in DFAT reports and decided what weight it should give to different aspects of that information, preferring the information it relied upon as set out in its decision record. The Tribunal was entitled to do this.
In these circumstances, I accept the Tribunal’s statement at the commencement of its consideration of country information that “I have considered the country reports referred to by the agents…” (CB 269 at [29]).
Accordingly, I reject the Applicant’s submission that the Tribunal failed to consider, or ignored, important evidence and, thereby, failed to understand, or deal with, the basis of the Applicant’s claim to fear persecution or significant harm if returned to Iran on the basis that he was an undocumented stateless Faili Kurd.
I turn now to consider the Applicant’s submission that the Tribunal failed to consider the components of the Applicant’s claim to be an undocumented stateless Faili Kurd and, in particular, the Applicant’s submission that the Tribunal failed to consider an integer of his claim; namely, that the Applicant had no means available, after his mother’s death, to obtain documents to prove his identity to the Iranian authorities.
I am satisfied that the components of the Applicant’s claim identified at [66](a)-(d) above were included in the Tribunal’s summary of the Applicant’s claims (CB 265 at [21]-[22]). Although no specific findings were made by the Tribunal regarding these claims, I am satisfied, reading the Tribunal’s reasoning as a whole, that the Tribunal accepted these claims. The Tribunal accepted that the Applicant was a Faili Kurd (CB 271 at [38]). The Tribunal referred to the benefits to Iraqi refugees of holding certain documentation and accepted that the Applicant lived in Iran until his adulthood (CB 267 at [29]). Significantly, the Tribunal also made it clear the claims that it rejected (CB 266-270 at [29], [31]). In my opinion, given the Tribunal made specific findings as to each of the Applicant’s claims that it rejected, it can be assumed the Tribunal did not reject and, therefore, accepted the components of the claims as identified by the Applicant at [66](a)-(d) above.
The Applicant also submits that that the Tribunal failed to make findings on an integer of claim; namely, that the Applicant had no one available, after his mother’s death, to vouch for his identity or his ability to prove his identity to the Iranian authorities.
In ATU16 v Minister for Immigration and Border Protection [2018] FCCA 686 (“ATU16”), Judge A Kelly provided a detailed and helpful exposition of the Tribunal’s statutory task on review under s.414 of the Act. Relevantly, his Honour referred to the following authorities (ATU16 at [61], [63]):
61. The ambit of the Tribunal’s obligation to consider a clearly articulated argument was considered in detail by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, [35]-[42]. Her Honour distilled the principles as follows at [40]:
The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument. (Emphasis added)
As Mortimer J explained at [42], “assessments by a reviewing court of whether the identified argument was “substantial and clearly articulated”, and what the Tribunal did or did not do in its reasons in terms of considering it, will be highly fact dependant and will need to be considered against the background of each individual case”.
…
63. In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, Robertson J examined the scope of the requirement to deal with claims that had been expressly articulated or squarely or sufficiently raised by the material: [44]-[52]. His Honour endorsed views that: (1) the Tribunal was not required to deal with claims which were not articulated and which did not clearly arise from the material before it; (2) the court insists that on judicial review, a decision of the tribunal must always be considered in light of the basis on which the application was made, not on an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process; (3) if the claim was not expressly made, it must emerge clearly from the materials before it; (4) a conclusion that the tribunal has failed to consider a claim which is not expressly advanced is not to be made lightly: (citations omitted).
(Emphasis in original)
The integer of claim said to have been raised in the Applicant’s representative’s submissions dated 7 January 2016 occurred in the following context. First, reference is made to the Applicant’s statutory declaration also dated 7 January 2016 in support of the review as follows (CB 168-169):
…the applicant has explained that he did not apply for a card out of fear of what would follow if he approached the Iranian authorities after not having had an identity document for a long period. His knowledge of his father’s background also induced fear and his mother’s warnings were no doubt high on his mind…
Reference is also made in the submissions to country information regarding abuse towards Kurdish political opponents and their family members and it is then stated that “…it is submitted as quite plausible, in fact more plausible, that the applicant would not approach the authorities in Kermanshah and draw attention to himself…” (CB 169).
The submissions then go on to state as follows (CB 169):
…Also relevant is the fact that after his mother died he had no family in Iran to assist with these matters – no one to vouch for his identity or ability to provide any documents as to his background. The applicant no doubt considered it best to keep a low profile, and avoid trouble amongst the Kurdish population…
In my opinion, read fairly, the submissions focus on the Applicant’s fears because of his claim (rejected by the Tribunal) that his father was a Kurdish activist killed in battle. The statement in the submissions relied upon by the Applicant stands in contrast to the focus of the submissions and, it seems to me, is put as merely another fact.
I am satisfied that the integer of claim alleged by the Applicant was not expressly made by the Applicant in the submissions dated
7 January 2016.
The only basis, therefore, for arguing that the claim is an integer of claim is that it squarely arose, or was sufficiently raised, on the material before the Tribunal. In my opinion, the statement made in the Applicant’s representative’s submissions in the context in which it appears could not be said to be a substantial or clearly articulated argument (see CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [40], cited in ATU16 and extracted at [107] above).
If I am wrong on this point, then I am satisfied that the Tribunal considered the integer of claim. I take into account the principle that a conclusion that the Tribunal has failed to consider a claim not expressly advanced is not to be made lightly (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, cited in ATU16 and extracted at [107] above).
In the second bullet point of the Tribunal’s reasoning in its assessment of the Applicant’s claims, the Tribunal says that “…[t]he applicant said he had not sought to obtain such documentation because he was afraid as [a] Faili Kurd and due to his family background…” (CB 267 at [29]) (my emphasis).
Counsel for the Applicant submits that the reference to the Applicant’s “family background” in the context of that second bullet point, which then proceeds to note that the Applicant’s father had died a long time ago, must be read as a reference to the Applicant’s family background so far as his claim that his father was a Kurdish activist is concerned.
I disagree with this submission. It is true that the Tribunal did note that there was a significant period of time between the Applicant’s father’s death and when the Applicant left Iran. However, the Tribunal simply did not accept, given the significant benefits that could be obtained from being registered, that the Applicant would not have taken steps to obtain appropriate documentation. In other words, in my opinion, the Tribunal is focusing on the Applicant’s failure to take steps to obtain registration. It is to be recalled that the Applicant’s integer of claim relied upon concerns the difficulties that would confront the Applicant if he took steps to obtain documentation, not why he did not take any steps. In my opinion, when the Tribunal refers to the Applicant’s “family background”, it is referring to all of the Applicant’s individual circumstances arising from his family background and not merely the Applicant’s claim arising from his father’s profile. This would include difficulties the Applicant claims would confront him, after his mother died, in obtaining identifying documentation. In my opinion, the Tribunal is not convinced that the considerations relevant to the Applicant’s family background would outweigh the considerable benefits from obtaining documentation for the purpose of registration, hence the Tribunal’s findings that the Applicant’s explanation for not obtaining registration detracted from his overall credibility.
Accordingly, I reject the Applicant’s amended ground of judicial review that the Tribunal failed to consider an integer of the Applicant’s claim to be an undocumented stateless Faili Kurd giving rise to jurisdictional error.
Conclusion
For the reasons set out in this judgment, an order will be made dismissing the Applicant’s amended application for judicial review filed on 31 October 2017. A further order shall be made that the Applicant pay the costs of the First Respondent in a fixed amount.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 8 May 2018
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