BGV19 v Minister for Immigration and Anor
[2020] FCCA 3014
•2 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGV19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3014 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant’s fear found not to be well-founded – whether the Authority erred by proceeding on the basis that the applicant would only return voluntarily to Iran considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 473CB, 473DD |
| Cases cited: AYY17 v Minister for Immigration (2018) 261 FCR 503 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Buchwald v Minister for Immigration (2016) 242 FCR 65 BUD17 v Minister for Home Affairs (2018) 264 FCR 134 Carrascalao v Minister for Immigration (2017) 252 FCR 352 DCP16 v Minister for Immigration [2019] FCAFC 91 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 EJW18 v Minister for Home Affairs [2019] FCCA 2092 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v SZMTA (2019) 264 CLR 421 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NAHI v Minister for Immigration [2004] FCAFC 10 S395/2002 v Minister for Immigration (2003) 216 CLR 473 Singh v Minister for Home Affairs [2019] FCAFC 3 |
| Applicant: | BGV19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 739 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Li |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 19 December 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 739 of 2019
| BGV19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 25 February 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a fast track applicant, and therefore a fast track review applicant, within the meaning of the Migration Act 1958 (Cth) (Migration Act). He arrived in Australia on 31 October 2012 and applied for a Safe Haven Protection Visa (SHEV) on 17 March 2016.[1] The review was referred to the Authority after the delegate refused to grant the visa on 11 September 2016.[2]
[1] Court Book (CB) 26-84
[2] CB 131-150
The applicant claims to be a stateless person with Faili Kurd ethnicity.[3] The Authority found that the applicant’s family were expelled from Iraq in 1980 and were thereafter accepted by Iran as refugees.[4]
[3] CB 183 at [9]
[4] CB 183 at [10]
The impugned part of the Authority decision falls within narrow compass; being those expressed at [51]-[59]. The essential finding being impugned is that at [58] of the decision:
In light of the information before me and taking into account the applicant’s individual circumstances, I am not satisfied that the applicant faces a real chance of harm because he might be identified at the airport as a person travelling on temporary travel document, prolonged residence in Australia, or because he sought asylum, or sought asylum unsuccessfully should he return to Iran.
This finding is said to be infected by jurisdictional error capable of being expressed in three alternative ways:
a)Ground 1 – it rested on a finding that the Memorandum of Understanding on Consular Matters between Iran and Australia (MoU), which applied to Iranian nationals, would apply to a stateless Faili Kurd in the absence of any evidence to support that finding;
b)Ground 2 – it failed to give proper, genuine and realistic consideration to whether the applicant may face harm on return because he will return to Iran as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent Iraqi passport; and
c)Ground 3 – there was a failure to consider a mandatory relevant consideration, being whether the applicant may face a real chance of harm as an involuntary, undocumented stateless Faili Kurd refugee returnee.
All three alternative grounds resolve into a central question: did the Authority fall into jurisdictional error by assuming that the rights and privileges of Iranian nationals returned to Iran on an irregular travel document apply equally to a person who is not an Iranian national (an unregistered stateless Faili Kurd)?
The Authority decision
The Authority found that Iran is the relevant receiving country.[5]
[5] CB 185 at [23]
Part 7AA
The Authority had regard to the review material provided by the Secretary under s.473CB of the Migration Act.[6] On 24 September 2018, the applicant's representative provided a submission which the Authority identified contained one piece of “new information”.
[6] CB 181 at [2]
The “new information” was a submission that country information relied on by the delegate regarding the renewal of Amayesh cards was incorrect and suggested alternative facts. The Authority was not satisfied that the requirements of either limb of s.473DD(b) of the Migration Act was met in relation to the new information, and accordingly found that there were no exceptional circumstances to justify considering this new information.[7]
[7] Migration Act, s.473DD(a); CB 181 at [4]; cf. AUS17 v Minister for Immigration [2020] HCA 37 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ
Protection claims
The Authority made the following key findings:
a)it accepted that the applicant's sister died in an accident involving a police motorbike and that his family did not receive the redress they desired in making a complaint;[8]
b)it did not accept that the applicant and his parents' registration with Iranian authorities was cancelled;[9]
c)it was satisfied that the applicant was a registered Faili Kurd refugee with the Iranian government, and that he departed using a fraudulent passport;[10]
d)as it was satisfied the applicant was a registered Faili Kurd refugee, it did not accept that he needed to escape from his workplace every time it was raided due to his undocumented status;[11]
e)the Authority accepted most of the applicant's remaining claims regarding his and his family's past experiences of discrimination,[12] including that he was perceived to be an Arab and that Persians took off his father's headscarf;[13]
f)it was satisfied that the applicant was not of interest to authorities for any reason at the time of his departure in 2012;[14]
g)it did not accept that Iranian authorities had arrested the people smuggler who helped the applicant and his cousin come to Australia, nor that this information was conveyed to the cousin's parents when they went to renew their white cards;[15] and
h)it did not accept that the applicant suffered a mental condition that had prevented him from giving evidence or that he would face harm in Iran on account of a mental health condition.[16]
[8] CB 183 at [12]
[9] CB 184 at [14]
[10] CB 185 at [22]
[11] CB 186 at [25]
[12] CB 186 at [26]
[13] CB 186 at [27]
[14] CB 186 at [28]
[15] CB 187 at [32]
[16] CB 187 at [33]
The Authority made findings that unregistered Faili Kurds do not enjoy the equal protection of the laws of Iran enjoyed by Iranian nationals. For example, at [40],[17] the Authority stated that:
I accept that should the applicant return to Iran as an unregistered or undocumented Faili Kurd he is likely to face restrictions such as … accessing medical treatment without payment, educational and formal and/or legal employment opportunities. I also accept the applicant will be unable to buy a house, car, mobile phone or establish a utilities account or enter a legally recognised lease.
[17] CB 189
The Authority accepted that the applicant's registration would have expired while he was in Australia and that, were he to return to Iran, the Iranian authorities would consider him to be an unregistered Faili Kurd or irregular migrant.[18] However, having regard to the applicant's claims and evidence, and having regard to country information,[19] the Authority did not accept that the applicant would face harm as a stateless Faili Kurd.[20] The Authority was not satisfied that there was a real chance the applicant would experience restrictions, limitations or hardships or economic harm or would be denied the capacity to earn a livelihood, or to access basic services, whether separately or in any cumulative sense at a level that would threaten his capacity to subsist or otherwise amount to serious harm.[21]
[18] CB 188 at [35]
[19] CB 189–190 at [40]–[47]
[20] CB 191 at [49]
[21] CB 190 at [44]
The Authority also found that, as a registered Faili Kurd who left Iran, the applicant would not be allowed to re-enter. However, it found that if he did return to Iran it would be on a voluntary basis[22] and that he would not face harm on returning to Iran as a failed asylum seeker who departed illegally.[23]
[22] CB 191 at [53]
[23] CB 192 at [58]
For these reasons, the Authority was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act.[24] The Authority also found that the applicant failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.[25] In this context, the Authority also found that the applicant would not face significant harm on account of being a Faili Kurd,[26] or because he would be perceived to be an Arab.[27]
[24] CB 192 at [60]
[25] CB 193 at [65], [66]
[26] CB 193 at [63]
[27] CB 193 at [64]
The current proceedings
These proceedings began with a show cause application filed on 27 March 2019. The applicant now relies upon an amended application filed on 19 December 2019. There are three particularised grounds in that application:
1. The Second Respondent fell into jurisdictional error by making findings of material fact where there was no evidence to support those findings.
Particulars
a.The Second Respondent's finding that if the Applicant would return to Iran it would be on a voluntary basis on a temporary travel document at [53] of the Second Respondent's reasons;
b.The Second Respondent's finding that the Memorandum of Understanding on Consular Matters between Iran and Australia would apply to a stateless Faili Kurd at [52]-[53] of the Second Respondent's reasons;
c.The Second Respondent's imputed finding that the situation of Iranian nationals seeking asylum applied equally to unregistered stateless Faili Kurds at [54] - [55] of the Second Respondent's reasons.
2. The Second Respondent fell into jurisdictional error by failing to give, proper, genuine and realistic consideration of the Applicant’s claims.
Particulars
a. The Second Respondent failed to consider the circumstances that would attend the involuntary return of an unregistered stateless Faili Kurd to Iran at [54]-[55] of the Second Respondent’s reasons;
b. The Second Respondent failed to consider whether the fact that the Applicant's family background as Faili refugees expelled from Iraq constitutes other credible evidence that the Iranian authorities could be aware that the Iraqi passport the Applicant used to depart Iran was fraudulent at [56] of the Second Respondent's reasons.
3. The Second Respondent fell into jurisdictional error by failing to consider a mandatory relevant consideration in relation to the Applicant’s claims.
Particulars
a.The Second Respondent failed to consider whether the Applicant could be returned to Iran on an involuntary basis;
b.The Second Respondent failed to consider whether the Applicant faces a real chance of harm as an involuntary, undocumented stateless Faili Kurd refugee returnee.
The only evidence I have before me is the court book filed on 15 May 2019.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 6 November 2020.
Consideration
Applicant’s contentions
Relevant principles to showing that a decision is vitiated for jurisdictional error on a “no evidence” ground
The Authority does not fall into jurisdictional error simply by making a finding of fact against the balance of the evidence.[28]
[28] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156
However, making a finding of fact where there is no evidence to support that finding constitutes an error of law.[29] Where the fact found was material to the reasoning of the Authority, the error of law infecting that finding would be jurisdictional.[30]
The relevant findings included that Iranian nationals could take the benefit of consular assistance pursuant to the MoU
[29] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
[30] see Buchwald v Minister for Immigration (2016) 242 FCR 65 at [33]-[38]
The Authority found that the applicant would not face a real chance of harm if returned to Iran, based on the following findings:
a)on 19 March 2018, Iran and Australia signed the MoU that includes an agreement by Iran to facilitate the return of Iranians who arrived in Australia after 19 March 2018 and who have no legal right to stay in Australia;[31]
b)the applicant would return to Iran on a voluntary basis, on a temporary travel document and after his prolonged residence in Australia his asylum application having been unsuccessful.[32]
The Authority made findings as to the circumstances of the applicant’s return on insufficient evidence
[31] CB 191 at [52]
[32] CB 191 at [53]
The applicant submits that finding that the applicant could return to Iran on a voluntary basis[33] appears to have been made on the assumption that the MoU applied equally to unregistered Faili Kurds as well as Iranian nationals.
[33] CB 191 at [52]-[53]
At [52] of the reasons,[34] the Authority described the effect of the MoU as follows:[35]
Furthermore, according to DFAT, Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
[34] CB 191
[35] counsel’s emphasis retained
The applicant submits that the assumption that the MoU applied to the applicant is then carried into [53][36] without any explanation as to why:[37]
I accept that as a registered Faili Kurd refugee who left Iran, the applicant will not be allowed to re-enter, however in any event, in light of the information regarding involuntary returnees, I consider that if the applicant was to return to Iran it would be on a voluntary basis, on a temporary travel document…
[36] CB 191
[37] counsel’s emphasis retained
There is said to be no evidence to support the finding that:
a)the applicant was willing to return on a voluntary basis; or
b)the applicant could return on a voluntary basis in the manner contemplated by the Authority, that is, by recourse to consular assistance afforded to Iranian nationals pursuant to the MoU.
The Authority’s finding at [52]-[53] is said to have been material to its conclusion in [58]. The applicant submits that, had the Authority not fallen into the error of making a finding on the basis of no evidence, it would have been open to the Authority to find that the applicant (as an unregistered stateless Faili Kurd and not an Iranian national) could not have recourse to consular assistance pursuant to the MoU, which would have led to the finding that the applicant would not have been able to return to Iran on a voluntary basis with the same privileges and amnesties given to the Iranian citizens.
The applicant therefore submits that he was thereby deprived of a realistic possibility that the Authority’s decision could have been different.[38] The error is therefore said to be jurisdictional.
[38] Minister for Immigration v SZMTA (2019) 264 CLR 421 at [48]
Ground 2
Relevant principles concerning the requirement for the Authority to give proper, genuine and realistic consideration
The Authority must give the claims before it “proper, genuine and realistic consideration”; that is, the decision-maker must engage in an “active intellectual process” directed at the matter.[39]
[39] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [45]
The Authority may fall into jurisdictional error if it fails to engage in an active intellectual process or give proper, genuine and realistic consideration to a substantial, clearly articulated argument relying upon established facts; 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; a matter that is an essential integer to an applicant’s claim or that would be dispositive of the review.[40]
The Authority misconstrued the applicant’s claims to protection as an unregistered stateless Faili Kurd by considering them as if he were an Iranian national
[40] See also Singh v Minister for Home Affairs [2019] FCAFC 3 at [34]
The manner in which the Authority allegedly found that the applicant would be able to avail himself of consular assistance available to Iranian nationals or be entitled to the same privileges and amnesties to Iranian nationals on return to Iran are said to indicate that the Authority failed to give proper, genuine and realistic consideration to the applicant’s personal circumstances.
This claimed failure is said to be highlighted by the “disconnect” between the background findings made by the Authority up to [50] and those findings made from [51] onwards. Noting that [51] commences the Authority’s reasoning on the topic of “whether the applicant may face harm on return because he will return as a failed asylum seeker from a western country”.
The background findings made by the Authority include the fact that the applicant:
a)was a registered Faili Kurd at the time of leaving Iran but no longer has a current registration;[41]
b)departed Iran using a fraudulent Iraqi passport;[42]
c)would, if returned to Iran, be considered by the authorities to be an irregular migrant or an unregistered Faili Kurd.[43]
[41] CB 185 at [22], CB 188 at [35]
[42] CB 185 at [22]
[43] CB 188 at [35]
The applicant contends that it should have been plain to the Authority that the applicant’s claims to fear harm if returned are unique to his personal circumstances as an unregistered stateless Faili Kurd. However, the Authority is said to have dealt with the applicant’s claims at [52]-[58][44] on the basis that he would be given equivalent treatment as an Iranian national.
The Authority failed to give proper, genuine and realistic consideration in arriving at its finding that Iranian authorities would not become aware that the Iraqi passport that the applicant has used was fraudulent and that he departed Iran illegally
[44] CB 191-192
The Authority expressed at [56]:[45]
I have rejected the applicant’s claims that the Iranian authorities have arrested the people smuggler who had assisted him and his cousin and that they are aware they are in Australia. There is no other credible evidence before me to suggest that the Iranian authorities are aware that the Iraqi passport he used was fraudulent and he subsequently departed Iran illegally and I consider this to be pure speculation on the applicant’s part and I do not accept that this to be the case. I am not satisfied that there is a real chance of him suffering any harm on this basis.
[45] counsel’s emphasis retained
It is said not to be clear how the Authority came to the finding that once it rejected the applicant’s claim that the Iranian authorities have arrested the people smugger who had assisted him, there was left no other credible evidence that the Iranian authorities are aware that the Iraqi passport that the applicant used was fraudulent and that he departed Iran illegally.
This is said to be despite the Authority having found that the applicant:
a)was a registered Faili Kurd at the time of leaving Iran but no longer has a current registration;[46]
b)did not at the time of his departure regain his Iraqi citizenship;[47]
c)did not any time subsequently obtain Iranian citizenship;[48]
d)departed Iran using a fraudulent Iraqi passport;[49]
e)would, if returned to Iran, be considered by the authorities to be an irregular migrant or an unregistered Faili Kurd.[50]
[46] CB 185 at [22], CB 188 at [35]
[47] CB 185 at [17]
[48] CB 185 at [20]
[49] CB 185 at [22]
[50] CB 188 at [35]
It is not clear why the above does not constitute “other credible evidence” that the Iranian authorities did know or would know, if the applicant applied for consular assistance to return to Iran, that:
a)the applicant did not at the time of his departure possess either a valid Iraqi or Iranian passport;
b)the applicant’s departure from Iran was therefore irregular.
The applicant contends that the Authority thereby failed to consider whether or not those findings constituted “other credible evidence” that contradicted or qualified (or was capable of contradicting or qualifying) the Authority’s finding at [56].[51] Instead it is said to have simply recited a conclusion at [56] without fully articulating the reasons for that conclusion.
The failure to give proper, genuine and realistic consideration to the applicant’s personal circumstances constituted a jurisdictional error
[51] see BUD17 v Minister for Home Affairs (2018) 264 FCR 134 at [67]
The applicant submits that there was therefore a failure to give proper, genuine and realistic consideration to the applicant’s personal circumstances. That failure is said to have deprived the applicant of a realistic possibility that the Authority’s decision could have been different within the meaning of SZMTA at [48]. The error is said, therefore, to be jurisdictional.
Ground 3
Relevant principles to failure to consider a mandatory relevant consideration
The Authority falls into jurisdictional error if it fails consider a mandatory relevant consideration within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend Ltd[52] at [39]-[40].
The Authority constructively failed to consider whether stateless and unregistered Faili Kurds could return to Iran, whether voluntarily or involuntarily, and whether or not on the same terms as Iranian nationals
[52] (1986) 162 CLR 24
Although the Authority purported to consider from [51]-[59] “whether the applicant may face harm on return because he will return as a failed asylum seeker from a western country”, the applicant submits that there was a constructive failure to ask itself the following relevant mandatory considerations:
a)is the position of unregistered stateless Faili Kurds relevantly different to that of an Iranian national should an unregistered stateless Faili Kurd be returned to Iran?
i)do the privileges given to Iranian nationals pursuant to the MoU apply with equal force to unregistered stateless Faili Kurds?
ii)do the amnesties given to Iranian nationals on return as a failed asylum seeker from a western country apply with equal force to unregistered stateless Faili Kurds?
Although the Authority did ask itself generally whether the applicant may face harm on return because he will return as a failed asylum seeker from a western country, it is said to have failed to ask the correct question, being whether the applicant, as an unregistered stateless Faili Kurd who departed Iran on a fraudulent Iraqi passport might face harm on return to Iran.
The applicant contends that the failure by the Authority to ask the correct question was a constructive failure by it to ask a mandatory relevant question.
This failure to ask the correct question is said to have deprived the applicant of a realistic possibility that the Authority’s decision could have been different within the meaning of SZMTA at [48]. The error is therefore said to be jurisdictional.
Minister’s contentions
Ground 1
The Minister submits that this ground is underpinned by a misunderstanding or misconstruction of the both applicant's claims and Authority's findings. In particular, as the Authority identified,[53] the applicant did not advance any claim to fear harm because he would return as a failed asylum seeker from a western country. Further, the Minister submits that this claim did not clearly arise on the material before the Authority.[54]
[53] CB 191 at [51]
[54] cf. Dranichnikov v Minister for Immigration (2003) 197 ALR 389; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [55] and [58] per Black CJ, French and Selway JJ; see the principles summarised in AYY17 v Minister for Immigration (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ
Moreover, even if it is found that the claim did clearly arise on the material before the Authority, the Minister submits that, contrary to the applicant's contention, the Authority did not find that the applicant could return to Iran, nor did it make any positive finding that the applicant would return voluntarily.
The Authority's decision at [52]–[53][55] is as follows:[56]
I have found that the applicant departed Iran using a fraudulent Iraqi passport, and I accept he no longer has this passport. In 2016, DFAT reported that the Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means. There is no more recent information before me to indicate that this position has changed. Furthermore, according to DFAT, Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
I accept that as a registered Faili Kurd refugee who left Iran, the applicant will not be allowed to re-enter, however in any event, in light of the information regarding involuntary returnees, I consider that if the applicant was to return to Iran it would be on a voluntary basis, on a temporary travel document and his prolonged residence in Australia and after his asylum application has been unsuccessful.
[55] CB 191
[56] counsel’s emphasis retained
The Minister notes that, as set out in the Authority's decision, the applicant arrived in Australia in October 2012.[57] Further, it was satisfied that the applicant's registration had not been cancelled and that the applicant would have departed Iran as a registered Faili Kurd refugee.[58] Accordingly, having regard to the country information, and in particular the 2016 DFAT Report referred to at [52],[59] which states that Iran does not allow re-entry to registered refugees if they visit a third country, the Authority found that the applicant “will not be allowed to re-enter” Iran.[60] The Minister submits that this finding was the only dispositive finding made by the Authority in relation to whether the applicant would in fact return to Iran, and it is consistent with both the country information referred to in the second and third sentences of [52] as well as the definition of “receiving country” in s.5 of the Migration Act, which provides:
[57] CB 181 at [1]
[58] CB 184 at [14], CB 186 at [25]
[59] CB 191
[60] CB 191 at [53]
"receiving country", in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
Accordingly, the Minister submits that the Authority plainly understood that the MoU did not apply to the applicant, that it had regard to the country information from the 2016 DFAT Report that was relevant to the applicant and that this was the relevant evidence which supported its dispositive finding that the applicant will not be allowed to re-enter Iran.
Further, the Minister notes that the remainder of the contentious passage, “if the applicant was to return to Iran, it would be on a voluntary basis…”, was made in the second conditional tense. The Minister submits that the Authority's use of that structure indicates that the Authority's consideration of the applicant's return to Iran on a voluntary basis was hypothetical, and, moreover, contingent on the applicant being willing to return. In other words, the Authority was “in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail”.[61]
[61] DCP16 v Minister for Immigration [2019] FCAFC 91 at [98] per Beach, O'Callaghan and Anastassiou JJ
In the Minister’s submission, it follows that the Authority's subsequent consideration of whether the applicant would face harm if he returned voluntarily[62] is likewise hypothetical or speculative and based on an imaginary set of events, and, accordingly, there is no material error as contended by the applicant.
[62] CB 192 at [54]–[58]
Ground 2
The Minister reiterates that the applicant did not in fact claim to fear harm as a failed asylum seeker from a western country and the Minister submits that this claim did not clearly arise.
Further, with respect to the first particular of the amended application (and as set out in relation to Ground 1), the Minister submits that the difficulty for the applicant is that the Authority made an express finding that he “will not be allowed to re-enter”. Further, the Authority expressly noted at [52] that Iran does not accept involuntary returnees who arrived prior to 19 March 2018. The applicant arrived in 2012. As a result, on the material before the Authority, the applicant could not become an involuntary returnee to Iran because Iran does not accept involuntary returnees.[63] It follows that the Authority had no occasion to consider whether the applicant would be harmed if returned involuntarily as a stateless Faili Kurd to Iran.
[63] EJW18 v Minister for Home Affairs [2019] FCCA 2092 at [12] per Reithmuller J
With respect to the first particular as developed in the applicant’s submissions, the Minister submits that the Authority was plainly cognisant of the applicant's claim to be an unregistered stateless Faili Kurd. So much is apparent from its express acceptance of that claim,[64] its subsequent consideration of whether the applicant would face harm on this basis,[65] and its express regard to country information regarding the return of unregistered refugees to Iran.[66]
[64] CB 188 at [35]
[65] CB 188–191 at [36]–[49]
[66] CB 191 at [52]
While the Authority did consider country information that appears to relate to Iranian citizens,[67] the Minister submits that it is well established that the choice and assessment of country information is a matter for the Authority.[68] The Minister submits that it was open to the Authority to consider contextual material about what can happen when failed asylum seekers return to Iran and the Authority permissibly used the country information available to it. In any event, the observations that related to this country information (for example, in the second part of [53]) are in contingent hypothetical terms.[69] In those circumstances, the Minister submits that the consideration was neither dispositive nor necessary, and that the rest of the Authority's reasons demonstrate that it was acutely aware of the applicant's profile.[70]
[67] CB 191 at [52]–[54]
[68] NAHI v Minister for Immigration [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ
[69] DCP16 at [98]
[70] in particular CB 192 at [57]; see also for example CB 189–191 at [40]–[49]
With respect to the second particular of the amended application, the Minister submits that it is likewise misconceived and is underpinned by a misunderstanding of the nature of the claim made.
At the SHEV interview, the applicant claimed (for the first time) that he would be harmed on re-entry to Iran because the Iranian authorities have arrested the people smuggler who arranged his travel and thus knew that he left Iran illegally and had sought asylum in Australia.[71] The applicant claimed that his cousin's mother had been told by the authorities that they were aware that the applicant and his cousin had gone to Australia as they had arrested the people smugger who confessed to assisting them.[72] The delegate rejected the claim as implausible.[73]
[71] CB 137, 139
[72] CB 139
[73] CB 187 at [30]
In relation to this claim, the Authority found that:[74]
The applicant's evidence regarding what happened to his cousin's mother was vague and unconvincing. His evidence lacked detail and was supplemented by the representative's own submissions at the conclusion of the protection visa interview when he referred to evidence provided by the applicant's cousin. Furthermore, in contrast to the delegate's finding, the applicant himself did not give any indication of when this event occurred; rather it was the representative who indicated that this event occurred in 2016 when his cousin's parent's random act of applying for their white cards brought them in contact with the Iranian authorities. Even if I was to accept that this event occurred after he had prepared his protection visa application and statement, he made no mention of it when asked at the commencement of the protection visa interview when he was asked whether he would like to add or change anything in his protection visa application. He has also been assisted by the same representative throughout the protection visa process yet at no time prior to the protection visa interview was the delegate advised of these claims. A post-interview submission was not provided. Furthermore, I agree with the delegate's concerns that the lack of any contact by the Iranian authorities with the applicant's own family including his siblings, who on the evidence before me would have needed to renew their cards in 2016, further undermines the credibility of these claims.
I am not satisfied the applicant has been [a] truthful witness regarding these aspect of his claims. I do not accept when the applicant's cousin's parents went to renew their white cards the Iranian authorities questioned them about his cousin whereabouts and told his mother that they were aware that the applicant and his cousin had gone to Australia. I do not accept that the Iranian authorities have arrested the people smuggler who had assisted the applicant and his cousin and that this person has confessed to the Iranian authorities he has assisted them to depart Iran and travel to Australia. Nor do I accept that the applicant's cousin's parents were verbally assaulted by the Iranian authorities including accusing the applicant and his cousin of being traitors.
[74] CB 187 at [31]–[32]
The Minister submits that it was open to the Authority to reject this claim. Further, the Minister submits that it was open to the Authority to find that there was no other credible evidence to suggest that the Iranian authorities were aware that he departed Iran illegally on a fraudulent passport.[75] He did not provide any evidence such as a statement from his cousin's mother as to what allegedly occurred, or any country information to suggest that authorities would be aware that he had departed illegally because he was stateless and did not hold a travel document.
[75] CB 192 at [56]
Moreover, the applicant's claim was a clearly articulated fear of harm on account of the purported arrest and confession of the people smuggler. He did not claim that the authorities would become aware of his illegal departure through any other means, and the Minister submits that the applicant is impermissibly attempting to recast his claims on a basis that was not actually made.[76]
[76] S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [1] per Gleeson CJ
Ground 3
The Minister submits that this ground must fail for two reasons.
First, it is said to overlook the Authority's consideration of country information that “unregistered refugees who leave Iran are not allowed to return through regular means”.[77] The Minister submits that this reference discloses actual consideration of whether unregistered Faili Kurds could return to Iran, and acknowledgment that they could not do so on the same terms as Iranian nationals.
[77] CB 191 at [52]
Secondly, the Authority found that the applicant's registration was not cancelled, and that he departed Iran as a registered Faili Kurd. Accordingly, having regard to country information, the Authority found that the applicant “will not be able to return to Iran”.[78] The Minister submits that this finding renders any additional consideration of the applicant's voluntary return as an unregistered Faili Kurd unnecessary.
[78] CB 191 at [53]
Resolution
By Ground 1, the applicant contends that the Authority made “findings of material fact where there was “no evidence to support these findings”. The particulars to this ground take issue with the Authority's finding[79] that if the applicant returned it would be on a voluntary basis, contend that the Authority misunderstood or misapplied the MoU[80] and erred in making an imputed finding that “the situation of Iranian nationals seeking asylum applied equally to unregistered stateless Faili Kurds”.
[79] CB 191 at [53]
[80] CB 191 at [52]–[53]
By Ground 2, the applicant contends that the Authority failed to give proper, genuine and realistic consideration of the applicant's claims. The particulars to this ground (in the amended application) contend that the Authority failed to consider the circumstances that would attend the applicant's involuntary return as an unregistered stateless Faili Kurd, and that it failed to consider whether the applicant's family background and other specified facts constituted “other credible evidence” that the passport the applicant used to depart Iran was fraudulent and that he had departed illegally. The particulars as advanced in the applicant’s submissions contend that the Authority “misconstrued the applicant's claims to protection as an unregistered stateless Faili Kurd by considering them as if he were an Iranian national”.
By Ground 3, the applicant contends that the Authority failed to consider “a mandatory relevant consideration”, which is contended in the applicant’s submissions at [33] to be “a constructive failure to consider whether stateless and unregistered Faili Kurds could return to Iran, whether voluntarily or involuntarily, and whether or not on the same terms as Iranian nationals”.
The applicant focuses in particular upon the conclusions reached by the Authority in its decision at [51]-[59][81] where the Authority stated:
[81] CB 191-192
51.The applicant claimed he would face harm on return because he departed Iran illegally and other matters which I have not found to be credible. The delegate also considered whether the applicant may face harm on return because he will return as a failed asylum seeker from a western country. The applicant advanced no such claim however I accept he would return after his prolonged residence in Australia and his application for asylum has failed.
52.I have found that the applicant departed Iran using a fraudulent Iraqi passport, and I accept he no longer has this passport. In 2016, DFAT reported that the Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means. There is no more recent information before me to indicate that this position has changed. Furthermore, according to DFAT, Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
53.I accept that as a registered Faili Kurd refugee who left Iran, the applicant will not be allowed to re-enter, however in any event, in light of the information regarding involuntary returnees, I consider that if the applicant was to return to Iran it would be on a voluntary basis, on a temporary travel document and his prolonged residence in Australia and after his asylum application has been unsuccessful.
54.The information before me indicates that failed asylum seekers are very unlikely to be targeted by the Iranian authorities for reason of having applied for asylum overseas. Hossein Abdy, the Head of the Passport and Visa Department at Iran's Ministry of Foreign Affairs, advised the Danish Refugee Council, Landinfo and the Danish Immigration Service during a November 2012 fact-finding mission that it was not a criminal offence in Iran for any Iranian to ask for asylum in another country. An unnamed Western diplomat and expert on Iran advised the Danish Refugee Council and Danish Immigration Service in 2013 that as long as a returnee has not been a member of an opposition political party or involved in political activities in other way, she or he would not face problems upon return to Iran.
55.DFAT reported in 2018 that according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran, with the authorities accepting that many will seek to live and work overseas for economic reasons. It was also commented that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims and it was those with an existing high profile who may face a higher risk of coming to official attention on return to Iran, particularly political activists. DFAT also noted that it not aware of any legislative or social barriers for returnees finding work or accommodation in Iran or any specific barriers to prevent return to a returnee's home region.
56.I have rejected the applicant's claims that the Iranian authorities have arrested the people smuggler who had assisted him and his cousin and that they are aware they are in Australia. There is no other credible evidence before me to suggest that the Iranian authorities are aware that the Iraqi passport he used was fraudulent and he subsequently departed Iran illegally and I consider this to be pure speculation on the applicant's part and I do not accept that this to be the case. I am not satisfied that there is a real chance of him suffering any harm on this basis.
57.I have found that the applicant was not of interest to the Iranian authorities when he departed Iran. There is also no evidence before me to indicate that the applicant has been involved in any activities since arriving in Australia that would have brought him to the adverse attention of the Iranian authorities. There is also no independent information before me to suggest that absent any other concerns, individuals who return to Iran after spending a prolonged period of time in a western country such as Australia and sought asylum unsuccessfully are imputed with an adverse opinion or profile and harmed. I am not satisfied that he will face a real risk of attracting the specific attention of the authorities and questioned should he return to Iran.
58.In light of the information before me and taking into account the applicant's individual circumstances, I am not satisfied that the applicant faces a real chance of harm because he might be identified at the airport as a person travelling on temporary travel document, prolonged residence in Australia, or because he sought asylum, or sought asylum unsuccessfully should he return to Iran.
59.I am not satisfied that the applicant has a well-founded fear of persecution.
I agree generally with the Minister’s submissions. The applicant’s contentions concerning the use made by the Authority of the MoU are misplaced. The Authority correctly found that the MoU had no application to the applicant, noting that he arrived in Australia about six years before the MoU was made and it has no retrospective application. The MoU probably does not apply to non citizens of Iran either but the failure of the Authority to note that is not an error going to jurisdiction. The Authority only needed one reason to reject the application of the MoU to the applicant.
Further, it was correct of the Authority to proceed on the assumption that because he could not be returned to Iran involuntarily, if he was to return there, it would be on a voluntary basis.
The difficulty in this case, as I pointed out to the representatives in oral argument, is that, in order to hypothetically place the applicant in Iran, the Authority needed to make two assumptions. The first, made by the Authority, was that the applicant’s return would be voluntary. Secondly, the Authority’s finding that the applicant would be refused entry into Iran (even on voluntary return) gave rise to the need of a second assumption that the applicant would enter Iran irregularly (or in a similar way to which he left it). There was no consideration by the Authority of that hypothetical.
That was, in my view, an error but I find that it does not go to jurisdiction. There was nothing before the Authority that could lead to any conclusion that the outcome before the Tribunal, had it made the second assumption, might have been different. First, it is not known whether illegal entry into Iran would be treated as a criminal matter and, if so, what the penalty might be. Neither is it known whether the applicable Iranian law is a law of general application applied on a non-discriminatory basis.
Secondly, it is not known whether the applicant would simply be deported from Iran and, if so, where? The applicant himself addressed none of this in his evidence and submissions to the Authority and there is no simple, obvious and potentially determinative enquiry that could have been made by the Authority to resolve these imponderable questions.
Conclusion
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 December 2020
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