BNZ18 v MICMSMA
[2020] FCCA 1614
•17 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNZ18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1614 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant found to be a national of Iran – whether the Authority erred in determining the applicant’s receiving country considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 422B, 473CA, 473CB, 473CC, 473DA, 473GB Migration and Maritime Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AEH16 & Anor v Minister for Immigration & Anor [2019] FCCA 34 BMB16 v Minister for Immigration [2017] FCAFC 169 BVD17 v Minister for Immigration (2019) 373 ALR 196 Hossain v Minister for Immigration (2018) 92 ALJR 780 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v Pochi (1980) 4 ALD 139 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v SZMTA (2019) 93 ALJR 252 Plaintiff M174 of 2016 v Minister for Immigration [2018] HCA 16 Re Kirby and Collector of Customs (1989) 20 ALD 369 Re LLSY and Minister for Immigration (2011) 121 ALD 630 SZQZF v Minister for Immigration & Anor [2013] FMCA 23 SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 SZUNZ v Minister for Immigration (2015) 230 FCR 272 Tahiri v Minister for Immigration [2012] HCA 61 WZAQH v Minister for Immigration & Anor [2013] FCCA 182 WZAOV v Minister for Immigration & Anor [2013] FMCA 9 |
| Applicant: | BNZ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 163 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Saul of Estrin Saul Lawyers |
| Solicitors for the Respondents: | Ms A Ladhams of Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 21 March 2018 into this Court for the purpose of quashing it.
The Immigration Assessment Authority shall redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 163 of 2018
| BNZ18 |
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 21 March 2018.[1] The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
[1] Court Book (CB) 214-231
The following statement of background facts is derived from the submissions of the parties.
On or about 1 October 2012 the applicant arrived at Christmas Island, Australia as an unauthorised maritime arrival.[2]
[2] CB 1, 45
In his Irregular Maritime Arrival Entry Interview the applicant stated that he was a citizen of Afghanistan, but was born in Iran.[3]
[3] CB 3
By letter dated 28 April 2016 the Minister’s Department advised the applicant that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow him to lodge an application for either a temporary protection (Subclass 785) visa (TPV) or a Safe Haven Enterprise Visa (SHEV).[4]
[4] CB 19-20
On 15 August 2016 the applicant applied for a SHEV.[5] That application was refused by the delegate on 23 May 2017,[6] and the matter was referred to the Authority.
[5] CB 24-82
[6] CB 162-177
In his SHEV application, the applicant declared that:
a)he was a citizen of Afghanistan;[7]
b)he was not a “current citizen or national of any other country”;[8] and
c)both his mother and father were citizens of Afghanistan.[9]
Applicant’s claims
[7] CB 38, 62
[8] CB 38
[9] CB 38
Identity
The applicant initially claimed to be of Hazara ethnicity and Shia religion,[10] although he subsequently clarified that his father was a Shia Tajik and his mother originated from the Shia Hazara “Haidar” tribe.[11]
[10] CB 40, 62
[11] CB 164, 137
The applicant consistently declared that he was born in a particular location in Iran in 1982 and resided there his entire life until he departed for Australia in mid 2012.[12] He explained that his family moved to Iran following the Soviet-Afghan war in 1979,[13] and declared that his family remained in Iran.[14]
[12] Arrival interview CB 3-4; SHEV application CB 51; statutory declaration dated 5 July 2016 CB 62
[13] CB 62 [4.1]
[14] CB 42
The applicant declared that he transited through Kabul, Afghanistan for around one month in order to get a passport to travel to Australia.[15] At the SHEV interview he explained that he travelled to Afghanistan in 2012 using a temporary Afghan passport which he obtained from the Afghan embassy in Tehran, in order to apply for his Afghan passport.[16] That latter passport was taken by a people smuggler en route to Australia.[17]
[15] CB 4; 50; cf statutory declaration dated 5 July 2016, “I have never been to Afghanistan” at CB 62, and submission dated 13 December 2016, “The Applicant was born in the city of … in Iran and has never lived in Afghanistan” at CB 137
[16] CB 167
[17] CB 13, 15, 45
The applicant also submitted the following identity documents:
a)Afghan Taskera and English translation;[18]
b)Iranian Foreign Nationals Identification Program 2000-2001 and English translation;[19]
c)Iranian Identity Card for Displaced Afghans and English translation;[20]
d)his father’s Afghan Taskera and English translation;[21] and
e)his brother’s Afghan passport issued in Iran.[22]
[18] CB 64-65, higher quality scanned copy at CB 98-99, further copy at CB 147 together with extended English translation at CB 145-146
[19] See CB 66-67 (bottom image), higher quality scanned copies at CB 100-101, additional copy of translation at CB 109, and extended translation of reverse of card at CB 153-154
[20] See CB 67 (top image), higher quality scanned copy at CB 101 and English translation at CB 108, and extended translation of reverse of card at CB 155-156
[21] See CB 148-152, copies at CB 200-204
[22] See CB 205. The Minister notes, however, that the Authority found that there were no exceptional circumstances for considering the new information: CB 218-219 [14]
Protection claims
In his statutory declaration dated 5 July 2016, the applicant raised claims in respect of Afghanistan and Iran:
a)Afghanistan: the applicant outlined his fear of harm in Afghanistan from the Taliban, who “persecute and kill Hazara because of their ethnicity and their religion”.[23] He also claimed to fear harm on the basis he had sought protection in a western country and had adopted a foreign culture;[24]
b)Iran: the applicant also stated that his family were treated badly and discriminated against and harassed by the Iranian authorities because they were Afghan illegal immigrants. The applicant stated that his family were given a movement card which allowed them to stay in a certain area but they were not permitted to travel to other parts of the country for work or for any other reason and if caught outside the permitted area they could be deported to Afghanistan. The applicant claimed they had no legal rights in Iran and no future there.[25]
[23] CB 62 [5]-[6]
[24] CB 62 [7]
[25] CB 62 [4.2]-[5]
On 6 December 2016, the applicant attended an interview with the delegate to discuss his SHEV application and his claims that he is a person in respect of whom Australia has protection obligations.[26]
[26] CB 112
In the decision record, the delegate recorded the applicant’s “receiving country” as “Claims to be Afghanistan, Believed to be Iran”.[27]
[27] CB 162
In the body of the decision record, the delegate explained how he arrived at the conclusion that the applicant’s “receiving country” was not Afghanistan as claimed:[28]
[28] CB 62
In reaching a conclusion on the applicant's identity I am mindful of the relevant departmental guidance on forming an opinion on identity which states:
‘Although each officer must assess each piece of information collected, the opinion formed is not a ''balance of probabilities". Rather, it is to be satisfaction on the evidence presented, and in the absence of information to the contrary, that the claimed identity is sufficient for the purpose of the next stage of immigration work. Officers should make reference to all aliases or nicknames admitted to by the client.’30
In considering the applicant's claimed nationality as part of his identity, I am also mindful of a reliable UK Home Office Policy document on assessing nationality which states:
‘If asserting that the applicant holds a particular nationality, the Home Office will need to establish this according to the balance of probabilities standard (this is a higher threshold than the lower standard mentioned above). The test is met if it is more likely than not, that the applicant is of the alternative nationality’.31
…
Having carefully considered all the evidence before me, I find it is more likely than not32 that the applicant is an Iranian citizen who left Iran using his own genuine Iranian passport.
30 PAM3: Act - identity, biometrics and immigration status - Undocumented arrivals - Levels of identity assurance, s6.6
31 CIS36DE0BB2668, "Nationality: Doubtful, Disputed and other cases", Uk Home Office, 26 October 2013 p.5
32 CIS36DE0BB2668, "Nationality: Doubtful, Disputed and other cases", Uk Home Office, 26 October 2013 p.5(footnotes in original, emphasis added)
The delegate went on to only assess the applicant’s claims for protection against Iran (and not Afghanistan). The delegate found that there was not a “real chance that the applicant will incur serious harm if he returned to Iran” and was “not satisfied that there is a real risk that the applicant will suffer significant harm if he returned to Iran”.[29]
[29] CB 172-173
Authority decision
The delegate’s decision was referred to the Authority pursuant to s.473CA of the Migration Act.
As noted above, on 21 March 2018, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.[30]
[30] CB 214-231
The Authority stated at the outset of its decision that it was not satisfied the applicant was a credible witness and that it did not accept at [16], as a matter of fact, his claimed identity as an Afghan citizen.
At [36] and [39] of the Authority’s decision record, it records its determination as to the applicant’s “receiving country”.[31]
The applicant’s fluency in Farsi strongly supports his claim to have been born and lived in Iran for an extended period of time and I consider it more likely that he is a national of Iran and that he has claimed to be a Hazara from Afghanistan to strengthen his claims for protection….
On the basis of my factual findings that the applicant is a national of Iran, I am satisfied that Iran is the receiving country.
(emphasis added)
[31] CB 225-226
The Authority went on to only assess the applicant’s claims for protection against Iran (and not Afghanistan). The Authority was “not satisfied he has a well-founded fear of persecution” or “a real risk of significant harm if he returns to Iran”.[32]
[32] CB 225-226
The Authority made the following findings of fact:
a)given the inconsistencies in the applicant’s evidence about his family’s ethnicity, the lack of corroborating country information relating to the applicant’s claim about his facial appearance being similar to a Tajik and the Authority’s concerns about the languages spoken by the applicant, the Authority found at [17]-[21] that it was not satisfied that the applicant was of Hazara or Tajik ethnicity;
b)due to major discrepancies in his name and his father’s name between various translations of his Iranian identity cards, the Authority had concerns at [22]-[26] about the authenticity of his identity cards. Together with the fact that the applicant had no documentary evidence to indicate his residence as a refugee in Iran beyond 2001 or that of his family who continued to reside in Iran and his lack of knowledge of the Amayesh registration system for Afghan nationals, the Authority had significant doubts at [27]-[28] about his claims to have resided in Iran as an Afghan refugee;
c)the Authority noted at [32] that the applicant’s claims about the journey he undertook through Afghanistan (through areas which were not safe for Hazaras) to get an identity document were inconsistent with his claims to fear being killed by the Taliban because of his Hazara ethnicity and religion if he were to return to Afghanistan. Given its concerns about the applicant’s alleged travel to Afghanistan, the absence of his Afghan passport, the prevalence of fraud and the discrepancies in his family name on his identity documents, the Authority did not accept, at [34]:
i)that the applicant exited Iran on a temporary Afghan passport and travelled to Afghanistan in 2012;
ii)that the applicant’s Taskera and that of his father were credible evidence of the applicant’s purported Afghan nationality.
The Authority stated that, having considered the applicant’s evidence as a whole and the country information before it, it did not accept that the applicant was of Hazara or Tajik ethnicity and that he resided in Iran as an illegal immigrant from Afghanistan. The Authority considered at [35]-[36] it more likely that the applicant was a national of Iran and that he claimed to be a Hazara from Afghanistan to strengthen his claims for protection.
The Authority stated that, as it had not accepted the applicant’s claims that he resided in Iran as a Hazara illegal immigrant from Afghanistan, it was not satisfied that the applicant had a well-founded fear of persecution in Iran. It therefore found at [40]-[41] that the applicant did not meet the criteria in s.36(2)(a) of the Migration Act.
In relation to the complementary protection criterion, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, there was a real risk that the applicant would suffer significant harm. Therefore the Authority found at [45] that the applicant did not meet the criteria in s.36(2)(aa) of the Migration Act.
The current proceedings
These proceedings began with a show cause application filed on 27 March 2018. The applicant now relies upon an amended application made on 10 December 2018. There is one particularised ground in that application:
The Immigration Assessment Authority (IAA) asked the wrong question or took into account irrelevant considerations when determining the Applicant’s ‘receiving country’, and thus erred in the exercise of its jurisdiction.
Particulars
a. The IAA concluded that the Applicant was not an Afghan national, because ‘it was more likely that he is a national of Iran’.
b. In arriving at this conclusion, the IAA considered:
i. which country the Applicant was ‘more likely’ a national of; and
ii. the Applicant’s ethnicity, language skills, travel history and past immigration status.
c. Section 5(1) of the Migration Act 1958 (Cth) required the IAA to determine the Applicant’s ‘receiving country’ ‘solely by reference to the law of the relevant country’.
d. By failing to make this determination ‘solely by reference to the law of the relevant country’, the IAA asked the wrong question or took into account irrelevant considerations.
I have before me as evidence the court book filed on 26 June 2018. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 17 June 2020.
Consideration
The issue to resolve in this case is whether the Authority fell into error in making a finding on the applicant’s nationality at [36]:[33]
The applicant’s fluency in Farsi strongly supports his claim to have been born and lived in Iran for an extended period of time and I consider it more likely that he is a national of Iran and that he has claimed to be a Hazara from Afghanistan to strengthen his claims for protection.
[33] CB 225
The Authority went on to find at [39][34] that because the applicant is a national of Iran, Iran is the receiving country.
[34] CB 226
The applicant contends that in determining the applicant’s “receiving country” the Authority asked itself the wrong question and took into account irrelevant considerations.
Relevant law
For all protection visa applications lodged on or after 16 December 2014, the relevant country of reference for both the refugee and complementary protection criteria is determined by the s.5(1) definition of “receiving country”.[35]
[35] Prior to 16 December 2014, the s.5(1) definition of “receiving country” only applied to the s.36(2)(aa) complementary protection criteria
Section 5(1) of the Migration Act defines “receiving country” and provides separate definitions for stateless and non-stateless applicants:
“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.
(emphasis added)
When determining a non-stateless applicant’s “receiving country”, decision makers are required to solely consider:
a)the citizenship laws of the relevant country; and
b)the applicant’s circumstances (insofar as they are determinative of whether an applicant falls within the scope of the relevant country’s citizenship laws).
In SZUNZ v Minister for Immigration,[36] Wigney J explained at [115] that the qualifying words in the s.5(1) definition of “receiving country” (i.e. “to be determined solely by reference to the law of the relevant country”) “can readily be seen to apply to para (a) of the definition”.[37] This was because “most, if not all, countries have laws dealing with citizenship and nationality”.
[36] (2015) 230 FCR 272
[37]When determining a stateless applicant’s “receiving country”, the qualifying words “to be determined solely by reference to the law of the relevant country” do not apply to paragraph (b) dealing with stateless persons. This is because “[t]he question of habitual residence plainly calls for a broad factual inquiry, not an inquiry limited to the laws of the relevant country”.[38]
[38] SZUNZ per Wigney J at [118]
The wrong question
The Authority’s conclusion at [39] that the applicant’s “receiving country” was Iran was based on its conclusion at [36] that it was “more likely that he is a national of Iran”.
However, the Authority’s finding in this regard is said to reveal it misdirected itself on the question to be decided. The language used is the language of a decision maker deciding something upon the balance of probabilities, i.e. what citizenship the applicant was “more likely” to hold. In doing so, the Authority appears to adopt the incorrect test endorsed by the delegate (who in turn adopted the test from the United Kingdom’s Home Office’s policy: “The test is met if it is more likely than not, that the applicant is of the alternative nationality.”)
The question the Authority was required to ask was whether, by sole reference to the relevant laws of Afghanistan (if any), the applicant is an Afghan citizen. The Authority’s decision record is bereft of any reference to an Afghan or Iranian citizenship law.
In SZSMQ v Minister for Immigration & Anor,[39] Judge Nicholls dealt with a similar argument regarding a “receiving country” determination by an Independent Protection Assessor (Assessor). His Honour found that the Assessor fell into an error of law by not having “sole regard” to the law of the country in question:
[102] I agree with the applicant that the assessor did not find the receiving country as required by s.5(1) of the Act in this case. In her analysis, the assessor made no reference to any relevant law of Iran to determine, for the purposes of whether Iran was a “receiving country”, whether the applicant was a national of Iran or if he was an “habitual resident” of Iran. Even if there was no such relevant law, there is nothing in the actual assessment to show that the assessor turned her mind to this statutory requirement.
[103] What the assessor referred to in making the relevant determination was the applicant’s own evidence and the matter of his expired identity (“white”) card ([216] at CB 383).
[104] Further, the assessment record does, under the heading of “Country Information” ([112] at CB 363) make reference to “Iranian nationality” ([136] at CB 369). Two things may be said about this. First, there is nothing in the subsequent analysis to show that the assessor made her determination in relation to the law of the “receiving country” with reference to this information, let alone that the determination was made having regard, solely, to it. In relation to “habitual resident”, there does not to appear to be any relevant law cited in the “country information” section…
[39] [2013] FCCA 1768
…
[110] What must immediately be restated is that it is indeed the case that such assessment records are to be read fairly (Wu Shan Liang). But such a reading is not meant to excuse ambiguities or to infer what is simply not there (SZCBT).
[111] The assessor’s reasoning in relation to the Refugee Convention was clear and consistent with relevant legal principles. It stands in contrast to that part of the assessment dealing with complementary protection. In my view that latter part of the analysis cannot relevantly be described as being even ambiguous as to whether the relevant determination was made solely with reference to the law of Iran. It is clear that even on a fair reading the assessor did not have regard to the law of Iran, and further, sole regard, as is required by law.
[112] The assessor fell into an error of law in her failure to properly understand and apply the law in this regard.
(emphasis added)
The applicant contends that the error by the Authority in the present case is the same. Not only did the Authority fail to have any regard to the laws of Afghanistan and Iran, but it also failed to have “sole regard” for these matters, as required by law. In doing so, the Authority fell into an error of law by misdirecting itself on the question to be decided.
Irrelevant considerations
When determining the applicant’s “receiving country”, the Authority considered a number of factors including, among other things:
a)his ethnicity (“I do not accept that the applicant is of Hazara or Tajik ethnicity”);[40]
b)his language skills (“The applicant’s fluency in Farsi strongly supports his claim to have been born and lived in Iran for an extended period of time and I consider it more likely that he is a national of Iran”);[41]
c)his travel history and immigration status in Iran (“I do not accept that the applicant … resided in Iran as an illegal immigrant from Afghanistan”).[42]
[40] CB 225 [35]
[41] CB 225 [36]
[42] CB 225 [35]
There is no explanation or analysis in the Authority’s decision record of how ethnicity, language, travel history or past immigration status could be determinative of Afghan or Iranian citizenship. Without drawing a connection between the applicant’s personal circumstances and a relevant citizenship law of Afghanistan and Iran, these factors are said to remain irrelevant considerations.
The applicant contends that, by taking into account irrelevant considerations, the Authority fell into jurisdictional error.
The Minister seeks to avoid a conclusion of jurisdictional error on the following basis.
Balance of probabilities
As a general rule, facts relevant to a Tribunal proceeding[43] are to be established on the balance of probabilities.[44]
[43] The same principles apply equally to the Authority, given it is engaged in a de novo consideration of the merits of the decision that has been referred to it: Plaintiff M174 of 2016 v Minister for Immigration [2018] HCA 16 at [17]; see also BMB16 v Minister for Immigration [2017] FCAFC 169
[44] Minister for Immigration v Pochi (1980) 4 ALD 139; Re Kirby and Collector of Customs (1989) 20 ALD 369; Re LLSY and Minister for Immigration (2011) 121 ALD 630
The applicant’s nationality was a preliminary question which was to be treated like any other factual matter. In circumstances where the applicant’s account of the claimed country of reference is unreliable, the decision maker is entitled to proceed to assess the risk in the state which it believes is most likely to be the applicant’s true country of citizenship.[45]
[45] James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed) Cambridge University Press, 2014. In particular, Chapter 1.3 “Determining the state of reference” pages 49-54
The Authority therefore understood that it was entitled to make a finding of fact about the applicant’s nationality.[46]
[46] VSAB v Minister for Immigration [2006] FCA 239 at [57], Weinberg J opined at [48] of VSAB that nationality is “… a term somewhat lacking in precision. It is generally used to signify the legal connection between an individual and a State. The primary relevance of nationality under international law is to provide a basis upon which a State can exercise jurisdiction over persons. However, the term is employed in different ways in international law, and domestic law.”
It is said to be clear that the factual finding about nationality was correctly determined on the balance of probabilities. The Minister submits that the Authority did not ask itself the wrong question.
Findings about Afghanistan
The Minister submits that it is abundantly clear that the Authority rejected the entirety of the applicant’s claims relating to Afghanistan, including:
a)his mixed Tajik/Hazara ethnicity;
b)that the applicant or his family resided in Iran as illegal Afghan immigrants, having fled to Iran in 1979;
c)that the applicant travelled to Afghanistan in mid 2012;
d)that the applicant and his father’s Taskeras, or the Iranian identity cards, were evidence of his Afghan nationality or his family’s status as refugees in Iran.
The Minister submits that in making that finding of fact, the Authority was entitled to consider the applicant’s credibility, authenticity of documents, the absence of an Afghan passport, his language skills, ethnicity and implausible account of return to Afghanistan.[47] Those matters were not irrelevant considerations in the context of determining such a question of fact.[48]
[47] see [16]-[36] of the decision
[48] the decision maker will only commit a jurisdictional error by taking into account irrelevant considerations if it was bound, by the Migration Act, to ignore those matters: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40
Further, it is said to have been unnecessary for the Authority to consider the nationality laws of Afghanistan.[49] Given that the Authority had rejected all of his claims relating to his background and ties to Afghanistan, it was not required to address the nationality laws of Afghanistan at all. There was no question that the applicant had “lost” Afghan nationality, it simply never arose once his background and claims were rejected.
[49] Cf applicant’s submissions at [25]
This is said to be plainly correct as a matter of statutory construction. In rejecting a claimed nationality or country of origin, the decision maker can determine that the factual premises claimed do not exist and therefore need not have resort to the nationality laws of that country. The language of s.5(1) does not require reference to the laws of a country in finding that the person is not a national of the country, rather the positive obligation to refer to the laws of the country concerned is when determining that the applicant is a national of a country.
The Minister submits that the Authority was not required to refer to Afghan nationality laws, because it had rejected all of his claims relating to Afghanistan. The Authority had concluded that the applicant was not a national of Afghanistan, has no current right to enter and reside there, and therefore there is no risk of harm in relation to that country. The Authority did not accept that Afghanistan was the country of nationality, and the breadth of its findings[50] also encompass that it rejected Afghanistan was his country of former habitual residence. It follows there are no claims that give a well-founded fear of persecution or “substantial grounds for believing” that harm will occur with respect to Afghanistan.
[50] The Authority found at [36] that the applicant was born and lived in Iran for an extended period. It also rejected that he had travelled to Afghanistan in 2012 at [34]
Findings about Iran
The Authority further found that the applicant was born and lived in Iran for an extended period. Based on its complete rejection of the applicant’s claimed background, together with its findings about being born in Iran and having resided there, it concluded at [35]-[36] that he was an Iranian national.
It was not in dispute that the applicant was born in Iran. The Minister submits that in the context of the Authority having accepted that the applicant was born in Iran and had resided there his whole life, he was an Iranian national by birth. The question of whether an Afghan refugee could acquire Iranian nationality did not arise, because of the Authority’s wholesale rejection of the Afghan claims. In other words, the Authority found that the applicant was, and always had been, an Iranian national by birth. In that context, it was unnecessary for it to cite specific laws of Iran concerning acquisition of nationality.
The Minister acknowledges however that other Federal Circuit Court judges have held that in some circumstances, failure to have regard to the municipal laws of a country when making a finding as to nationality may amount to error:[51]
a)in SZQZF v Minister for Immigration & Anor[52] where the Reviewer made a similar nationality finding based on the personal circumstances of the applicant as well as country information relating to the operation of Iranian nationality laws, no error was found;[53]
b)in WZAOV v Minister for Immigration & Anor[54] the decision maker had rejected the applicant’s claim that he was a stateless Faili Kurd who had been born in Ilam province in Iran, and who had no identity documents, finding instead that he was an Iranian citizen. The Court held at [48]-[49] that there was country information that supported factual findings made by the reviewer about the categories into which Faili Kurds from Ilam may fall, including the category of Iranian citizen, and as to citizenship generally, which when considered together with the applicant’s own history, was sufficient to justify the reviewer’s conclusion;
c)in WZAQH v Minister for Immigration & Anor[55] at [29] the Court held that while the personal circumstances of the particular applicant, a Faili Kurd who claimed to be stateless, were indicative of Iranian nationality, these were not factors which precluded the necessity to have regard to the municipal law or any applicable legislative or quasi-legislative process for the purpose of determining whether under the applicable Iranian law the applicant might be or be eligible to be an Iranian citizen;
d)in SZSMQ, Judge Nicholls concluded that the Reviewer erred by failing to have regard to the laws of Iran in making a finding that the applicant was neither a national nor a habitual resident of that country.[56]
[51] Noting that the cases below relate to decisions of Independent Merits Reviewers, and therefore the law under consideration was Article 1A(2) of the Convention rather than the current definition of receiving country (as introduced in 2011 and then amended by the Migration and Maritime Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) in its current form).
[52] [2013] FMCA 23
[53] see [87], [104]-[105]
[54] [2013] FMCA 9
[55] [2013] FCCA 182
[56] see [102]-[104] and [110]-[112]
The present matter is said to be distinguishable from WZAQH and SZSMQ, given the Authority’s finding that the applicant was born in Iran and had always resided there, and the question of obtaining Iranian nationality never arose.
For the above reasons, the Minister submits that the Authority was not required to refer to Iranian nationality laws.
Materiality
In the alternative, the Minister submits that any error in respect of the Authority’s lack of reference to Iranian nationality laws, could have made no difference to the outcome. This is because the Authority would have assessed the applicant against Iran as his country of former habitual residence in any event. Accordingly, even if the Minister’s submissions were not accepted, there is said to be no jurisdictional error in the Authority’s decision.
The question of habitual residence calls for a broad factual inquiry, which will include relevant factors such as the actual and intended length of stay in a state, the purpose of the stay, strength of ties to the state and to any other state (both past and current), and the degree of assimilation into the state.[57]
[57] Tahiri v Minister for Immigration [2012] HCA 61 (French CJ, Bell and Gageler JJ, 13 December 2012) at [16]. Whilst the High Court was considering, in that matter, the definition of “usual residence”, these considerations have been applied to the determination of “habitual residence” as it appears in the pre 16 December 2014 definition of “receiving country”: per Buchanan J at [30]-[31], Flick J at [53], and Wigney J at [118]
As noted above, the Authority found that the applicant was born in Iran, he had lived there for an extended period, and that he had not travelled to Afghanistan in 2012.[58] Given these factual findings, the only possible country of former habitual residence was Iran.
[58] The Authority found at [36] that the applicant was born and lived in Iran for an extended period. It also rejected that he had travelled to Afghanistan in 2012 at [34]
The Authority in fact considered the applicant’s claims against Iran, and rejected them. The applicant’s claims in respect of Iran were that:
a)his family were treated badly and discriminated against and harassed by the Iranian authorities because they were Afghan illegal immigrants. They were given a movement card which allowed them to stay in a certain area but they are not permitted to travel to other parts of the country for work or for any other reason;
b)because of his family’s lack of legal rights in Iran, they could be deported to Afghanistan at any time, and they had no future there.[59]
[59] CB 62 [4.2]-[5]
The Authority considered these claims at [40] and [44] but found that because it had rejected his claims relating to having resided in Iran as an illegal Hazara immigrant from Afghanistan, it was not satisfied that he had a well-founded fear of persecution, or that he faced a real risk of significant harm.
The Minister submits that any Authority error in relation to a positive finding of nationality in relation to Iran is immaterial, on that basis since the claims against that country were nonetheless assessed and an error would not have affected the Authority’s finding in relation protection claims against Iran. Because the Authority had entirely rejected his claims in respect of Afghanistan, and accepted that he was born and lived in Iran for an extended period, it follows that Iran would have been his receiving country. The Authority assessed his claims against Iran, and found that Australia did not owe protection obligations in respect of Iran.
The Minister contends that, in accordance with the High Court’s analysis in Hossain v Minister for Immigration,[60] because the applicant’s claims in relation to Iran were assessed (and rejected), any error in relation to a finding about Iranian nationality would have made no difference to the outcome. The Authority decision is therefore not affected by jurisdictional error.
[60] (2018) 92 ALJR 780
Resolution
In my opinion, the Authority did fall into error. First, the Authority’s conclusion at [35][61] rejecting the applicant’s claim to be of Hazara or Tajik ethnicity residing in Iran as an illegal immigrant from Afghanistan did not of itself resolve the question of the applicant’s nationality. The applicant’s birth in Iran was a relevant fact but his use of Farsi was merely indicative of a long period of residence rather than of nationality. The Authority purported to resolve the question of nationality without any consideration of Iranian law and without any discussion of the circumstances of the applicant’s parents. In AEH16 & Anor v Minister for Immigration & Anor[62] at [80] in admittedly different factual circumstances, this Court found that an affirmative finding of Iranian citizenship necessarily required consideration as to how the applicants in that case acquired that citizenship. I take the same view on the facts of this case. The Authority needed to explore whether the fact of the applicant’s birth in Iran was sufficient to make a finding of Iranian nationality or whether something else was required. There was no such analysis.
[61] CB 225
[62] [2019] FCCA 34
Moreover, the Authority’s finding at [36] was that it was more likely than not that the applicant is a national of Iran. That necessarily involved, in my view, an element of doubt. What were the alternatives? These were logically either that the applicant was a citizen of Afghanistan, notwithstanding that the Authority had rejected as fabrications the plethora of evidence submitted by the applicant to prove he was an Afghan national, or that the applicant was stateless. The Minister’s contention that the possibility of statelessness renders any error immaterial, because the outcome would be the same in terms of a receiving country, should be rejected in the absence of any discussion of that issue by the Authority or any opportunity for the applicant to provide submissions or evidence in relation to that possibility.
In addition, the uncertainty in the Authority’s finding meant, in my view, that the Authority needed to consider what the position would be if it was wrong, given that it had not expressed itself in unequivocal terms.[63] That uncertainty called for a discussion of the outcome in the event that the applicant was a stateless person whose habitual residence was Iran, or an Afghan national as he claimed.
[63] Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [64]-[67]
I find that the Authority did fall into error in making its determination of nationality and the applicant should receive the relief he seeks. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
The certificate issue
The Minister, as a model litigant, also provided written submissions on the issue of a non disclosure certificate. The applicant did not raise that as an issue. I accept the Minister’s submissions.
High Court’s decision in BVD17 v Minister for Immigration[64]
[64] (2019) 373 ALR 196
Section 473GB of the Migration Act provides that the Minister may issue a written certificate in relation to a document or information certifying that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reasons specified in the certificate, or that the document, the matter contained in the document, or the information, was given to the Minister, or to an officer of the Minister’s Department, in confidence. Subsection 473GB(3) provides that if the Authority is given information or a document and is notified that s.473GB applies, the Authority may:
a)have regard to the information for the purposes of the review: s.473GB(3)(a); and
b)if it considers it appropriate to do so having regard to the advice given by the Secretary, disclose the information to the applicant: s.473CB(3)(b).
In BVD17, the question that fell for consideration by the High Court was whether the giving of a notification (of a certificate) under s.473GB(2) of the Migration Act enlivened an obligation of procedural fairness on behalf of the Authority to disclose the fact of notification to a referred applicant in a review conducted under Part 7AA of the Migration Act.
The High Court held at [2] and [35] that procedural fairness does not oblige the Authority to disclose the fact of notification under s.473GB(2) to a referred applicant in a review because s.473DA operated to prevent such an obligation from arising.
In reaching this conclusion, the plurality made the following relevant statements as to the operation of s.473DA:
a)unlike ss.422B(1) and (2), s.473DA(1) “is not framed to confine the exhaustiveness of its operation…to the discrete subject matters of the provisions to which it refers”; rather, it “extends the exhaustiveness of its operation…to the entirety of the performance of the overriding duty imposed on the Authority by s.473CC(1) to [conduct a] review;[65]
b)the reasoning in Minister for Immigration v SZMTA,[66] that “an incident of the obligation of procedural fairness which conditions performance of the overriding duty of the [Administrative Appeals] Tribunal to conduct a review under Pt 7 can arise outside the scope of the discrete subject matters of the provisions to which s.422B(1) and (2) refer”, has no application to the Authority;[67]
c)the provisions to which s.473DA(1) refers “codif[y]…the incidents of the Authority’s acknowledged obligation of procedural fairness”.[68] While it does not preclude all implications (for example, that a provision to which s.473DA(1) refers is to be exercised within the bounds of reasonableness), it does preclude an incident of the Authority’s obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, “regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition”;[69]
d)section 473DA(1) operates so that the entirety of the content of the Authority’s obligation of procedural fairness in the context of a notification under s.473GB(2)(a) is to be found “in the outworking of the discretions conferred on the Authority by s 473GB(3)”.[70]
[65] [31]
[66] (2019) 93 ALJR 252 at 261-262 [27]-[37]
[67] at [31]
[68] at [33]
[69] at [33]
[70] at [35]-[36]
In short, the plurality’s judgment establishes that the content of the requirements of the natural justice hearing rule is stated exhaustively in, or codified by, the provisions to which s.473DA(1) refers.
The High Court also rejected the appellant’s argument that the Full Federal Court was wrong to conclude that there was insufficient evidence from which to infer that the Authority failed to consider exercising the discretion conferred by s.473GB(3)(b), based solely on an inference sought to be drawn from the fact that the Authority’s statement of reasons at [37]-[40] contained no reference to the discretion.
Section 473GB certificate and Authority’s decision
A s.473GB certificate was issued in this matter on 23 May 2017 by a delegate of the Minister pursuant to s.473GB.[71] The s.473GB certificate notifies the Authority that s.473GB applies to a document titled ‘D-1-PRID 1295590879- [applicant’s name] – CID 33204272794: TON110-DEU REPORT’.
[71] a copy of which appears at CB 178
The s.473GB certificate states that disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because the documents refer to sensitive internal departmental procedures for assessing identity, and because the document or the matter in the document was given to the Minister or an officer of the Minister’s Department in confidence.
The s.473GB certificate and underlying materials were included in the PDF Portfolio of documents provided to the Authority in accordance with s.473CB of the Migration Act. As was the case in BVD17, the Authority in the present matter indicated that it had regard to the material provided to it under s.473CB, but did not expressly refer to the certificate.
Findings on the certificate
Nothing said by the High Court in BVD17 gives rise to jurisdictional error in the present case.
I accept that the Authority did not advise the applicant of the s.473GB certificate, and therefore did not give the applicant an opportunity to make submissions about the certificate. The fact that the applicant was not notified that a s.473GB certificate was issued was not a denial of procedural fairness.[72]
[72] BVD17 at [2]
I also accept, based on the Authority’s statement at [2] that it had regard to the material provided by the Secretary under s.473CB, that the Authority exercised the discretion under s.473GB(3)(a) to have regard to the information the subject of the s.473GB certificate. There was, therefore, a duty on the Authority to consider whether to exercise the discretion conferred by s.473GB(3)(b).[73]
[73] BVD17 at [10]
There is no express indication that the Authority had considered exercising the discretion, but there does not need to be.[74] There is insufficient evidence from which it can be inferred that the Authority failed to consider exercising the discretion conferred by s.473GB(3)(b).[75]
[74] BVD17 at [40]
[75] BVD17 at [37]-[40]
The applicant bears the onus of establishing that the Authority failed to consider exercising the discretion conferred by s.473GB(3)(b).[76] The applicant has not advanced any submissions that the Authority failed to consider exercising its discretion under s.473GB(3)(b).
[76] BVD17 at [38]
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders accordingly.
I will hear the parties as to costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 July 2020
While SNUNZ dealt with the pre-16 December 2014 s.5(1) definition of “receiving country”, this is of no consequence to the definition of “receiving country” for non-stateless applicants, such as the applicant in the present matter. For completeness, the pre-16 December 2014 definition of “receiving country” was as follows:
receiving country in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national; or
(b) if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident;
to be determined solely by reference to the law of the relevant country
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16
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