Apm19 v Minister for Immigration
[2020] FCCA 2513
•8 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APM19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2513 |
| Catchwords: MIGRATION – Visa – protection visa – whether denial of procedural fairness – whether failure to consider integer of claim – request for impermissible merits review – McKenzie friend – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.44 Migration Act 1958 (Cth), ss.5(1), 5(H)(1), 91V(1), (2) & (3), 476 |
| Cases cited: Nepal v Minister for Immigration & Border Protection [2015] FCA 499 Nepal v Minister for Immigration & Border Protection [2015] FCA 366 |
| Applicant: | APM19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 61 of 2019 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 March 2020 |
| Date of Last Submission: | 1 April 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 8 September 2020 |
REPRESENTATION
| The Applicant: | In person, with a McKenzie friend, Ms Nguyen |
| Counsel for the Respondents: | Ms Grenfell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 61 of 2019
| APM19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 25 January 2019. That decision affirmed an earlier decision of a delegate of the first respondent Minister not to grant the applicant a protection visa pursuant to s 476 of the Migration Act 1958 (Cth) (‘the Act’).
Background
The applicant is a citizen of Iran. He arrived in Australia on 30 April 2013 as an irregular maritime arrival and applied for a protection visa on 1 August 2013. The application was denied on 4 December 2014 and on 15 December 2014 the applicant applied to the Tribunal for review. The decision to deny was affirmed on 12 August 2016. On 7 September 2016 the applicant first applied for judicial review.
On 5 June 2017, I made orders in chambers, by consent of both parties, remitting the matter back to the Tribunal for re-determination. The notation in those orders read as follows:
“The first respondent concedes that the second respondent erred by failing to consider an integer of the applicant’s claim that he feared harm from the Iranian authorities as a failed asylum seeker upon return to Iran, based on the specific objections raised by the applicant …”
On 25 January 2019, the Tribunal affirmed the decision not to grant the applicant a protection visa and on 14 February 2019 the current application for judicial review was filed. The initial hearing, listed 4 September 2019, was vacated at the applicant’s request, notwithstanding the fact that he was being held in immigration detention, to enable him to arrange legal representation. The matter was relisted to 5 March 2020, by which time the applicant had sought legal advice and had been released from detention on a Bridging Visa E.
On 5 March 2020, the applicant appeared before me without legal representation and without the assistance of a Farsi interpreter. The Court had been under the impression that the applicant would appear legally represented, as a Notice of Acting had been filed. By the date of hearing he was no longer represented. He did not seek a further adjournment. The applicant was questioned as to his ability to conduct himself without the assistance of an interpreter and he explained to the Court that he was willing and able to proceed provided that his partner, Ms Nguyen, who was both familiar with the case and fluent in English, was permitted to speak on his behalf.
Extension of the concept of a McKenzie Friend
In considering whether or not a non-lawyer might represent a party in a migration matter in this Court the starting point is s 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCCA Act’) which provides as follows:
“A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless
(a)under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative, or
(c)another law of the Commonwealth authorises the other person to represent the party.”
Paragraph (a) did not apply. In relation to paragraph (b), the Federal Circuit Court & Federal Magistrates Court of Australia Regulations 2012 (Cth) (‘the Regulations) under the Act are silent on the question of representation.
As to paragraph (c), I am not aware of any other statute based law of the Commonwealth which would authorise the request of the applicant.
I have considered the findings of Edelman J in Nepal v Minister for Immigration and Border Protection (‘Nepal’).[1] In that case, his Honour came to the conclusion that the only basis upon which a non-lawyer might represent a litigant was by way of an extension of the concept of the McKenzie Friend.
[1] [2015] FCA 499.
In the ordinary course, a McKenzie Friend is entitled to assist but does not address the court. An earlier decision in the Nepal matter referred to the limitations on the role of the McKenzie Friend.[2] In any event, the FCCA Act does not mention the concept of McKenzie Friend. There can be no doubt that this Court has power to permit a person to have the assistance of one.[3] Edelman J cautiously accepted the inherent discretion of a Court to permit a right of audience to a lay person, doubting that an absolute prohibition against assistance from a McKenzie Friend in making oral submissions existed,[4] but added:
“Nevertheless, where a party cannot obtain representation by a lawyer, great care must still be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good.”[5]
[2] Nepal v Minister for Immigration & Border Protection [2015] FCA 366 [13]-[16].
[3] Ibid; Maygar v Community Accommodation and Respite Inc t/a CARA [2016] FCCA 2151.
[4] Ibid [15].
[5] Ibid.
The first respondent properly submitted that it would be a rare and exceptional case where extension of the McKenzie Friend concept would permit a right of audience to a person who is not a legal practitioner, but did not oppose the application. In my view, the relevant background circumstances in this matter included: the very recent withdrawal of the applicant’s lawyer; the applicant’s lack of financial means to obtain new representation; the fact that this hearing was limited to submissions and did not require the examination of any witnesses; Ms Nguyen being very familiar with the case and holding the necessary English language skills to assist the applicant; and the genuine desire of the applicant that she be permitted to speak on his behalf.
I took the view in this matter that there were good reasons in the circumstances to grant Ms Nguyen a right of audience for the purpose of making oral submissions on behalf of the applicant. Ms Nguyen had obviously given considerable thought to the matters she wished to raise with the Court on behalf of the applicant. It was apparent she and the applicant were aware of the importance of the appearance and the potential consequences should the applicant be unsuccessful. The applicant wanted her to make submissions on his behalf and had no confidence that he would effectively be able to do so himself. It was my strong impression that Ms Nguyen had taken considerable pains to inform herself as best she could about the relevant legislation and authorities. I was not confident that she would be able to communicate that information to the applicant in a useful and effective way if confined to the usual ambit of the McKenzie Friend role. She clearly understood the nature of the proceedings and the matters to be argued better than the applicant himself. I had no reservations about her ability to conduct herself appropriately during the course of the proceeding.
For the above reasons, leave was given to enable the applicant’s partner to address the Court in an extension of the principle of a McKenzie Friend. I regard my having given leave for this purpose to have been exceptional. It should not be taken from any of the above that I have intended to endorse an approach which should now be commonly adopted.
Grounds of review
The matter proceeded on the basis of several grounds, reproduced verbatim below from the application filed 14 February 2019:
“The Tribunal fell into jurisdictional error in so far as:
1.The Tribunal concluded that the Applicant does not face a real chance of serious harm or real risk of significant harm (“the finding”)
2.The finding was based upon the determination of the Tribunal that:
Not having converted to Christianity other than on paper
3.The finding was made upon the assumption, not sustainable in law or in fact that the matters referred to in 2 above necessarily impeached the applicant’s credibility as a witness, factual evidence and witness statements.
4.The finding was made in the absence of the applicant being accorded natural justice.
5.The respondent failed to consider an integer of the applicants claim that the applicant feared harm from the Iranian authorities as a failed asylum seeker upon return to Iran, based on specific objections raised by the applicant at paragraph 2.17 on page 5 of the applicant’s representatives’ submissions to the tribunal dated 22 August 2018.”
The above grounds were helpfully summarised in the first respondent’s Outline of Submissions as follows:
“Ground 1 – Jurisdictional error on basis of findings regarding the Applicant’s conversion to Christianity.
Ground 2 – Jurisdictional error on basis that the finding was made in the absence of the Applicant being accorded natural justice.
Ground 3 – Respondent failed to consider an integer of the Applicant’s claim that the Applicant feared harm from the Iranian authorities as a failed asylum seeker upon his return to Iran.”
The applicant relied on the Application filed 14 February 2019, the materials in the Court Book, and written submissions which, whilst in the name of the applicant, had clearly been prepared by the McKenzie Friend, filed 4 March 2020, one day prior to the 5 March hearing.
The first respondent relied on the materials in the Court Book and its written submissions filed 27 February 2020.
At the conclusion of oral submissions I made orders giving both parties leave to file and serve supplementary written submissions. I did so for the following reasons:
a)The late filing of the applicant’s written submissions;
b)The lack of particulars stated in the grounds provided in the Initiating Application;
c)The variation of the applicant’s grounds during oral argument, and
d)The applicant was not legally represented.
Supplementary submissions were filed by both parties within the time frames provided.
Ground one
Submissions of the applicant
Ground one alleges jurisdictional error on the basis of findings regarding the applicant’s conversion to Christianity. As pleaded, it has all the hallmarks of a request for a merits review.
In his Written Submissions, the applicant referred to evidence provided to the Tribunal through which he attempted to demonstrate that his conversion to Christianity was genuine. This included witness statements and paperwork to show he had been baptised and participates in Christian rites and liturgy.[6] It was submitted that the Tribunal’s finding that the conversion was contrived was baseless as well as illogical, irrational and unreasonable.
[6] Court Book (‘CB’), 435 [117].
Specifically, the applicant submitted that the Tribunal erred in failing to take into consideration his statements that if he were forcibly returned to Iran he would not “deny his God” and that he would not voluntarily return to Iran due to fear of harm.
The applicant further submitted that the Tribunal failed to apply s 91V(3) of the Act. This provision relates to credibility findings on the basis of an applicant’s sworn or affirmed responses to further verify the information provided.
In oral submissions, the applicant contended that the Tribunal had wrongly dismissed his claims that he was a genuine convert to Christianity and went on to say that the Tribunal did not provide facts or evidence to support its conclusion. I took that submission not to be a reversal by the applicant of the onus on him to prove that he came within the relevant criteria but as an empathetic way of asserting that the conclusion of the Tribunal lacked an evident and intelligible basis or was otherwise unreasonable, irrational or illogical.
Submissions of the first respondent
The first respondent submitted that the applicant was merely inviting the Court to engage in an impermissible merits review. On the question of whether or not the applicant’s conversion to Christianity was genuine, the respondent submitted that the Tribunal was acting within its power to engage in fact finding, applied weight appropriately to the evidence before it, and made a finding which was open to it.[7]
[7] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 [27].
Citing S20/2002,[8] the first respondent submitted that it is not necessarily irrational or illogical for a fact finder to reject corroborating evidence to a claim if there is reason to disbelieve the claim itself:
“It is not necessarily irrational or illogical for a finder of fact, who is convinced that a principle witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons for disbelieving the principle witness.”[9]
[8] Re Minister for Immigration & Multicultural Affairs Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 30 (‘S106/2002’).
[9] Ibid, [12] (Gleeson CJ).
The first respondent submitted that the Tribunal was not convinced that the applicant’s conversion was genuine notwithstanding the paperwork demonstrating he had been baptised and participated in Christian services.[10] It could not be said to have ignored that evidence.
[10] CB, 435, 117.
The documentation corroborating the claim of Christian conversion was considered by the Tribunal as merely one aspect of evidence to be balanced against other findings. Those other findings went to the honesty and reliability of his claims at large and caused the Tribunal to refer to his “serious lack of credibility” and “willingness to amend his evidence to suit a preferred visa outcome”.[11]
[11] Respondent’s Outline of Submissions, filed 27 February 2020, 9 [30].
The credibility findings were based on inconsistencies between various accounts provided by the applicant. On the first respondent’s case, the Tribunal’s engagement with the evidence was well documented in the decision record.[12] It was submitted that the determination rejecting the conversion to Christianity was made on a probative basis, with regard to an assessment of the applicant’s credibility.
[12] CB, 435 [112], [115].
On the first respondent’s case, the Tribunal was not required to consider the risk to the applicant if he conducted life in Iran as a Christian because it had rejected that he was a genuine Christian convert.
Ground two
Submissions of the applicant
The applicant’s original Written Submissions made mention of a denial of procedural fairness but did not particularise this ground.
During the course of oral submissions, the only reference to a denial of procedural fairness was made with respect to a submission that the applicant was not provided “enough time” to respond to adverse country information that was put to him by the Tribunal. The applicant claimed that the country information presented to him by the Tribunal had been outdated and had he been provided sufficient opportunity he would have been able to respond with up to date country information which supported his positon.
Submissions of the first respondent
The first respondent relied on the contents of the Court Book to demonstrate the Tribunal’s compliance with natural justice and procedural fairness requirements, as summarised below:
a)The applicant appeared before the Tribunal represented by a registered migration agent on three separate occasions: 30 August 2018, 13 September 2018 and 22 January 2019.[13]
b)Prior to each of these hearings the applicant provided additional documentation in support of his case.[14]
c)The applicant’s metal health and PTSD symptoms were considered by the Tribunal.[15]
d)The Tribunal had ensured adverse information and inconsistencies were put to the applicant.[16]
e)The decision record demonstrated that the Tribunal had inquired with the applicant and his representative as to whether he had had a full opportunity to express himself, and whether he had a fair hearing. The applicant confirmed his belief that he had.[17]
[13] CB, 345-347 and 397-399.
[14] CB, 338-340, 348-360, 364-382 and 384-396.
[15] CB, 421-422 [24]-[32].
[16] CB, 423 [40], 426 [59], 427 [69]-[71], 429 [78]-[79], 431 [92]-[96], 434 [106], [110], 444 [112].
[17] CB, 422, [29].
In supplementary Written Submissions, the first respondent further identified specific occasions when the applicant was given an opportunity to make submissions with respect to country information both before and after the hearing.[18]
[18] CB, 443-444, [159]-165].
Ground three
Submissions of the applicant
Ground three read as follows in the applicant’s original Outline of Submissions:
“The respondent failed to consider an integer of the applicant’s claim that the applicant feared harm from the Iranian authorities as a failed seeker upon his return to Iran, based on specific objections raised by the applicant at paragraph 2.17 on page 5 of the applicant’s representatives’ submissions to the tribunal dated 22 August 2018.”
The specified paragraph 2.17 stated:
“It was not accepted that the applicant would come to harm returning to Iran from the West/as a failed asylum seeker, due to the large Iranian diaspora, and frequent travel rates of Iranians.”[19]
[19] CB, 275
I note that paragraph 6.6.5 of the representative’s submissions states that any potential return would be as a “forced returnee”.[20]
[20] CB, 281.
This ground was further particularised during the course of both supplementary Written Submissions and oral submissions. For this reason I have broken down the various aspects of this ground.
Failure to give proper consideration to possibility of involuntary returnee
The applicant referred the Court to paragraphs 149 to 156 of the decision record which considered the March 2018 Memorandum of Understanding (‘MOU’) signed between Australia and Iran.[21] This MOU included an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal rights to stay in Australia. From this, the Tribunal concluded that the Iranian government would not accept involuntary refugees and stated:
“… I find that into the reasonable foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. As such when turning my mind to considering the applicant’s risks I do so upon the basis that was he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. As such I will consider whether as a voluntary returnee he would face a real chance of serious harm or a real risk of significant harm.”
[21] CB, 441.
On the applicant’s case, the Tribunal looked only to country information that considered the possibility of a voluntary return and dismissed contrary country information.
The applicant claimed his intention not to return voluntarily was made clear to the Tribunal as it was inherent in his explicit claims that he feared adverse attention from authorities due to returning as a failed asylum seeker. Referring to various case law,[22] the applicant submitted that the Tribunal was, by virtue of the fact that he had raised the issue, required to consider how his return as an involuntary returnee would impact on the risk posed. It was further submitted that this fact made his claims dissimilar to one of the authorities cited by the first respondent[23] in its supplementary Written Submissions.[24]
[22] CQX18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs & Anor (No. 2) [2020] FCCA2; DEL18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs & Anor [2019] FCCA 2792; DFA18 v Minister for Home Affairs & Anor [2019] FCCA 258.
[23] EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 (‘EYJ17’).
[24] Respondent’s supplementary Written Submissions, filed 17 March 2020, 3.
On the applicant’s case, there is no prospect he will return voluntarily and he contends that the finding in DUP16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs & Anor,[25] that the prospect of return must be considered, is inconsistent with legislative framework under ss 5(1) and 5H(1) of the Act. These provisions define ‘receiving county’ and outline protection criterion.[26]
[25] [2019] FCCA 2710.
[26] Applicant’s Outline of Submissions, filed 4 March 2020, 4 [21].
Failure to locate or take into account the most recent country information
During oral submissions it was submitted that the Tribunal erred in failing to take into account or locate the most recent country information before making its finding. This submission was in effect a new ground. For reasons outlined below, I have included this ‘new ground’, within the context of ground three, being the Tribunal’s alleged failure to consider the applicant’s fear of harm upon return as a failed asylum seeker.
This new ground was not expanded upon in the applicant’s supplementary Written Submissions other than in alleging that the Tribunal’s failure to source more up to date country information resulted in a false assumption in the mind of the Tribunal member that it should only consider the possibility of the applicant as a voluntary, as opposed to involuntary, returnee. On the applicant’s case, this baseless assumption led to an inappropriate assessment of risk.
Submissions of the first respondent
Failure to give proper consideration to possibility of involuntary returnee
The first respondent provided written, oral and supplementary submissions in relation to the ground alleging failure to consider an integer of the applicant’s claim, specifically, that he feared harm from the Iranian authorities as a failed asylum seeker upon return to Iran.
Counsel for the first respondent submitted that a fair reading of the decision record demonstrates the Tribunal’s consideration of potential harm suffered by the applicant upon returning to Iran.[27]
[27] CB, 441-442, [149]-[156].
Whilst the Tribunal conducted its consideration of risk on the basis of the applicant’s return to Iran as a voluntary returnee, it also considered risk of harm should the applicant return as a failed asylum seeker. It concluded that the applicant’s return to Iran as an involuntary returnee was not possible and hence did not undertake its risk assessment with its mind turned to that possibility.
In response to the applicant’s assertion that the Tribunal was under a legal obligation to consider his involuntary return after he raised this, the first respondent submitted that it had not been established that the applicant would only return involuntarily. Relying on EYJ17, it submitted that the Tribunal’s factual finding as to the circumstances of return were relevant to the appellant’s claims in this respect.
In reference to the Australian and Iranian MOU,[28] it was noted that Iran would not accept involuntary returnees and as such the member’s mind did not turn to that possibility. The respondent submitted that the findings at paragraphs 151-156 of the decision record addressed the possibility of return as a failed asylum seeker.
[28] CB 441, [149]-[150].
Failure to locate or take into account the most recent country information
In supplementary Written Submissions, the first respondent referred to paragraphs in the decision record which identified a range of country information which was relied upon, including information provided by the applicant’s representative.[29] The Tribunal had clearly identified its reasons for applying different weight to information considered.[30] It provided a rationale for according less weight to the information referred to by the applicant’s representative.[31]
[29] CB, 441-442, [159]-[164].
[30] Ibid.
[31] CB, 444, [163]-[164].
Consideration
Ground one
I accept the submissions of the first respondent that the finding was based on a close consideration of the evidence, as demonstrated in the decision record. The question of weight was a matter for the Tribunal, being an inherent part of its discretion as the finder of fact.[32] The Tribunal was not required to accept uncritically everything the applicant said.[33] The Tribunal explained at considerable length its’ reasons for rejecting his claim to having converted to Christianity. Those reasons included significant findings as to credit both with respect to his conversion and other aspects of his evidence. I do not accept the applicant’s submission that the Tribunal acted illogically, irrationally or unreasonably. I am satisfied that the Tribunal’s finding that the applicant’s conversion to Christianity was contrived, was open to it.
[32] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[33] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
Within the confines of ground one, the applicant further alleged that the Tribunal failed to apply s 91V(3) of the Act. The relevant section is entitled ‘Verification of information’ and provides at s 91V(1) that the Minister may “request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.” This is subject to subsection (2), which provides that, if the applicant refuses or fails to comply and was given warning that the Minister may draw an unfavourable inference as to the applicant’s credibility, then the Minister may draw such reasonable inference as to credibility. Subsection (3), upon which the applicant relies, provides as follows:
“(3) If:
(a)the applicant has been given a request under subsection (1); and
(b)the applicant complies with the request; and
(c)the Minister has reason to believe that, because of:
(i) the manner in which the applicant complied with the request; or
(ii) the applicant's demeanour in relation to compliance with the request;the applicant was not sincere;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant's credibility.”
In the case of BGM16, the Court had this to say on the provision:
“In relation to protection visa applicants, ‘reasonable’ inferences can be drawn that are unfavourable about a person’s credibility if she or he refuses to comply with the request, or complies with it in a way that gives the Minister reason to believe the person was not ‘sincere’.”[34]
[34] BGM16 v Minister for Immigration and Border protection [2017] FCAFC 72 [34].
The applicant’s submission in this regard is misconceived. There is no evidence that the applicant was requested by the Minister or an officer to make a statement on oath or affirmation under s 91V of the Act as to the truth of information provided by him.
There can be no failure to apply the provision as there was no positive obligation on the Tribunal to apply it.[35] The question simply does not arise.
[35] SZEYJ v Minister for Immigration,& Multicultural & Indigenous Affairs [2005] FMCA 1718 [35].
I dismiss ground one.
Ground two
I am satisfied that a consideration of the decision record, as well as the matters identified above at paragraph 33(a) to (e), demonstrate that the applicant was afforded the necessary procedural fairness and natural justice requirements. The Tribunal did not constructively fail to exercise its jurisdiction to conduct a review which provided the applicant with a reasonable opportunity to be heard and present argument. Further, as to the complaint about reliance on outdated country information, it was a matter for the Tribunal which country information it relied on and to determine the weight, if any, to be given to it.[36] The Tribunal clearly had regard to country information promoted by the applicant in his pre and post hearing submissions and considered it in light of other information it had obtained.[37] It preferred other country information over that submitted by the applicant. It was open to it to do so.
[36] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [11].
[37] CB 443-444, [160]-[164].
I dismiss ground two.
Ground three
The situation of involuntary as opposed to voluntary return to Iran has been dealt with in a number of decisions of the Federal Court. In CLS15 v Federal Circuit Court of Australia,[38] (‘CLS15’) Charlesworth J made the following observation, which was noted by the Tribunal:
“It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.”[39]
[38] [2017] FCA 577.
[39] Ibid [64].
With that in mind, and having noted the existence of the MOU between Iran and Australia, which includes an agreement that Iran will facilitate the return of Iranians after the date of the MOU but not before it, the Tribunal made the following finding:
“Based upon the long history of the Iranian government not accepting involuntary returnees and only in recent times a diplomatic breakthrough led to a change of position I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. As such when turning my mind to considering the applicants risks I do so upon the basis that was he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. As such I will consider whether as a voluntary returnee he would face a real chance of serious harm or a real risk of significant harm.”[40]
[40] [150].
It proceeded to do so. On one view this might be seen to be an approach which was inconsistent with CLS15. In that matter, her Honour found that the Tribunal had only considered the question of voluntary return and in doing so had erroneously assessed a claim which had not been made.[41] Her Honour found that the claim as to risk of an involuntary return had not been considered. In my view, the Tribunal did not fall into the error identified by her Honour in CLS15. Here, the Tribunal considered the ‘failed asylum seeker’ claim in light of the possibility of an involuntary return. It concluded on country information, namely the MOU and a recent press interview with the Iranian Foreign Minister, that involuntary return for persons who have no legal right to remain in Australia and who arrived before the date of the MOU would not occur in the reasonably foreseeable future. In doing so, it found that the underlying factual basis of that claim did not exist. It then went on to consider the risk to the applicant in the event of voluntary return and on the basis of country information found that he had no political profile and would not be paid any attention by the authorities. The Tribunal appears to have proceeded on the basis that if there was any return it would only be on a voluntary basis. If it is the case that the Tribunal assessed a claim which was not made, of risk as a failed asylum seeker returning on a voluntary basis to Iran, it did not in my view create an unfairness to the applicant. The mischief identified in CLS15 does not arise in this case because the Tribunal made an express finding as to the underlying factual basis on which the claim of involuntary return was made. I am not satisfied that jurisdictional error has been established and I dismiss this ground.
[41] Op cit [60].
I make the orders to be found at the beginning of these reasons.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 8 September 2020
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