CHT19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1090
•28 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHT19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1090
File number: SYG 1447 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 28 October 2024 Catchwords: MIGRATION - Temporary Protection (class XD) (subclass 785) visa - whether there was evidence before the Tribunal to support their findings – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a),(aa). Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
BKU16 v Minister for Immigration [2017] FCCA 1195
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214
MZZYE v Minister for Immigration [2015] FCA 1378
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227; [2012] FCA 480
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 23 October 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Knuckey (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1447 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHT19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
28 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application filed on 13 June 2019 is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Immigration Assessment Authority (“the Authority”) on 13 May 2019. The Authority affirmed an earlier decision, by a delegate, of the then Minister for Immigration and Border Protection (“delegate”), on 22 March 2019 to refuse to grant the applicant a Temporary Protection (class XD) (subclass 785) visa (“the visa”). For the reasons set out below the application must be dismissed.
BACKGROUND
The applicant is a male Iranian citizen who entered Australia on 24 April 2013 (CB 137) as an unauthorised maritime arrival.
In a letter dated 1 June 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.
On 22 November 2016, the applicant lodged an application for a Temporary Protection (subclass 785) visa. A statutory declaration made by the applicant, dated 11 November 2016, was included in the application. The salient claims, inter alia, were as follows:
· The applicant is a Faili Kurd who was born in Iraq in 1977.
· During the Saddam Hussein regime in 1980, his family was deported to Iran due to accusations of being of Iranian origin.
· Whilst living in Iran, the applicant and his family were subjected to societal discrimination due to their Faili Kurd origins.
· Around ten years after their arrival, the applicant’s father obtained Iranian citizenship. The applicant was unable to obtain Iranian citizenship due to the legal complexities at that time.
· In 1997, the applicant was granted Iranian citizenship based on his father’s Iranian citizenship. However, the applicant’s Iranian citizenship certificate states that all of the applicant’s “past form dealings” in Iran are void. The applicant claims this means that he cannot use any paperwork that was issued before 1997 which includes his studies. The applicant claims that he could not pursue his studies further at university for this reason, having “no legal existence” in Iran before 1997.
· The applicant claims he was also unable to obtain employment as he was not entitled to use his past history in Iran to support his application for employment. The applicant could only work as a clothing seller with an Iranian person, which he held for ten years, albeit on a low income without getting paid superannuation to the government, as his employer knew that he could not get any other job and therefore would not complain.
· As a Faili Kurd, the applicant claims he was not allowed to practice, use, learn, or study their language.
· The applicant claims his Iranian citizenship will be revoked if he returns because he applied for protection in Australia.
· It is for these reasons the applicant fears returning to Iran. He claims his wife is suffering from cancer however, he cannot do anything in Iran due to his background, ethnicity and the limits on his citizenships rights which limit his ability to gain employment to provide for his family.
· The applicant does not have any problems with the Basij or police in Iran, but the daily discrimination he suffered amounts to persecution, and that is why he seeks Australia’s protection.
IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
On 13 May 2019, the applicant was informed that the Authority decided to affirm the delegate’s decision to refuse to grant him a protection visa.
The Authority summarised the applicant’s claims as follows:
•He was born in Iraq on 23 September 1977 and is of Faili Kurdish ethnicity. His family did not have Iraqi nationality and were deported to Iran in 1980 and were discriminated against in Iran on the basis of their ethnicity.
•He held a Green Card in Iran but then acquired Iranian nationality in 1997.
•His identity details on his Iranian Citizenship Card do not correspond with the details in his Green Card and the Iranian authorities do not recognise his study qualifications when he held the Green Card because he had no legal existence before then. For these reasons he could not attend university or obtain government employment and was not paid his entitlements by his private employer.
•He could not learn Faili Kurdish in school and could not use it in dealings with the authorities.
•In 2017 his relative informed the Iranian intelligence that the applicant was a refugee in Australia and the applicant’s wife was subsequently questioned by the intelligence authorities about the applicant.
•He fears his citizenship will be revoked on return to Iran because he sought asylum in Australia.
In its decision and reasons, the Authority accepted the following claims:
(a)The applicant was born in Iraq in 1977 and is of Faili Kurdish ethnicity.
(b)His family did not have Iraqi nationality and were deported to Iran in 1980. They were discriminated against in Iran on the basis of their ethnicity.
(c)The applicant’s family applied for Iranian citizenship on the basis of his father’s citizenship which was subsequently granted in 1997.
(d)Iran is the receiving country for the purposes of the assessment.
No evidence was before the Authority that the applicant had Iraqi citizenship or was a national of any other country. The Authority was not satisfied the applicant had a right to enter and reside in any other country and was satisfied that Iran was the receiving country for the purpose of the assessment.
The Authority did not accept his claim that the stamp on his Citizenship Card implies or states that he cannot use any paperwork issued to him in Iran or that he had no legal existence in Iran prior to obtaining Iranian citizenship in 1997. The Authority was not satisfied the applicant’s Iranian Citizenship Card states that he could not use his past history in Iran to support his employment application nor that there is any “citizenship rule” that prevented him from gaining government or other employment.
The Authority did not accept that the applicant was prevented from being admitted to university or from obtaining government, or other, employment because of his previous stateless status in Iran and/or the change in his identity details in his Citizenship Card from his previous Green Card and/or because his Citizenship Card did not mention his Green Card and/or because he was born in Iraq.
The Authority did not accept the claim that the applicant’s employer paid him a lower income and did not pay him his entitlements because he knew he could not get any other job.
The Authority was not satisfied the applicant will face a real chance of harm from the Iranian authorities or any other group or person in Iran due to the individual or combined factors of his previous stateless status, because his Citizenship Card details do not correspond/include the details on his Green Card or because he was born in Iraq.
The Authority accepted that the applicant was prevented from using Faili Kurdish language his dealings with the Iranian government and from learning it whilst at school as this is corroborated by country information before them, but they did not consider this to, individually or cumulatively, amount to serious harm.
Having considered the country information before them and the applicant’s circumstances, the Authority was not satisfied the applicant will face a real chance of discrimination or other harm, so serious as to amount to serious harm on the basis of his Faili Kurdish ethnicity.
The Authority made reference to the protection visa interview including the applicant’s claim that he gave blood for a test for a relative’s Iranian citizenship application and that his relative was questioned by intelligence authorities about his background in 2017. As a consequence, the intelligence authorities requested to see the applicant’s wife and questioned her about why the applicant had applied for protection in Australia and said he will tarnish the reputation of Iran. The authorities asked if he belonged to Ahwazi political groups. The applicant stated he fears intelligence authorities in Iran and fears they will interrogate and torture him as to why he went to Australia and tarnished the reputation of Iran.
The Authority was not satisfied, on the information before it, that Iranian authorities impute failed asylum seekers from western countries with a political opinion against the Iranian government. The Authority rejected the applicant’s claim that he participated in a DNA test for his relative, that his relative told Iranian authorities that the applicant was a refugee, and that the applicant’s wife was subsequently interviewed by Iranian authorities.
The Authority was not satisfied the applicant will face a real chance of having his citizenship revoked or face any other harm from the Iranian authorities or any other group or person due to being a failed asylum seeker from a Western country, who will be returning without his passport and who obtained Iranian nationality, individually or cumulatively.
The Authority was not satisfied the applicant will face a real chance of serious harm due to the combination of his previous stateless status, the change in his identity details in his Citizenship Card, his ethnicity and birth in Iraq and because he will return to Iran as a failed asylum seeker from a Western country who no longer has his passport and who obtained Iranian nationality.
The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1), that the applicant did not meet ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth).
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in the Originating Application filed on 16 August 2019. The grounds submitted are (reproduced as set out in the initiating application):
THE AUTHORITY AT [16] STATED THAT THE CONDITION ON MY CERTIFICATE OF CITIZENSHIP DOES NOT EFFECT OR DOES NOT AMOUNT TO REAL CHANCE OF PERSECUTION WHILE IN FACT I WILL BE PREVENTED FROM SUBSITSING IN IRAN , THE PARAGRAPH STATED "I do not accept his claim that the stamp on his Citizenship Card implies or states that he cannot use any paperwork issued to him in Iran or he had no legal
existence in Iran prior to obtaining Iranian citizenship in 1997" THE AUTHORITY'S CONCLUSION WAS NOT BASED ON ANY EVIDENCE.THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that Iran was not a democratic society. Unless you had lived there, you cannot appreciate the problems that exist. He stated he had not seen his family for 12 years. His wife was ill with cancer, and he was suffering from depression. If he was not afraid, he would go back to Iran voluntarily.
The applicant was asked to focus on the sole ground of judicial review and to address the Court as to what jurisdictional error was contained within the Authority’s decision. He was unable to articulate any further matters.
At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered that the only thing that remains the same in relation to personal details when you get citizenship as compared to his previous green card was his first name. Everything else changed.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submits that the application for judicial review fails to demonstrate any jurisdictional error in the Authority’s decision and that the application ought to be dismissed with costs.
Insofar as ground one contends that the Authority erred in finding that the stamp or condition on the applicant’s citizenship form did not amount to a real chance of persecution at [16] of its decision, this misconceives the Authority’s finding.
The Authority’s findings in relation to the stamp or condition were not made upon an analysis of the term “real chance”. Rather, the Authority rejected the applicant’s claim on a factual level; that is, it did not accept that the certificate said what the applicant claimed it did. Accordingly, there was nothing upon which the Authority could be satisfied, on any understanding of the meaning of the term "real chance", that the applicant might be at risk of harm: BKU16 v Minister for Immigration [2017] FCCA 1195 per Judge Smith at [17]-[18].
Insofar as this ground alleges jurisdictional error on the basis that there was “no evidence” for the Authority's finding that the stamp on his Citizenship Card does not state that he cannot use any paperwork issued to him in Iran, or that he had no legal existence in Iran prior to obtaining Iranian citizenship in 1997, the applicant must establish that there was absolutely no evidence capable of supporting the finding or inference. The ground “cuts out when even a skerrick of evidence appears”: Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227; [2012] FCA 480 at [31] per Tracey J; MZZYE v Minister for Immigration [2015] FCA 1378 at [54] per Murphy J.
The first respondent claims that the Authority clearly relied on evidence that was capable of supporting it’s finding, including:
(e)Two separate translations of the applicant's citizenship card, which indicated that the stamp said that the applicant's prior nationality or citizenship was either "void" or "considered as if it did not exist" (CB 171, [12]-[13]);
(f)The text of Article 989 of the Iranian Civil Code which indicates Iran does not recognise dual nationality (CB 171, [14]); and
(g)An academic journal article which explains that the operation of Article 989 of the Civil Code simply means a foreign nationality cannot be invoked before the Iranian authorities (CB 171, [15]).
Properly understood, ground one goes no further than expressing disagreement with the Tribunal’s decision and inviting the Court to undertake impermissible merits review.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal or Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
It is for the applicant to satisfy the Tribunal or Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Authority to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76].
The sole ground relied upon by the applicant asserts there was no evidence before the Authority to support the finding that he could not use any paperwork issued to him in Iran, as he had no legal existence prior to the issue of that paperwork.
As set out in the respondent’s submissions, the Authority found there were translations of the applicant’s citizenship card which showed his previous citizenship was void or considered as if it did not exist.
The Authority also relied upon the Iranian civil code which indicated that Iran does not recognise dual nationality and an academic journal article which indicated that foreign nationality could not be invoked before the Iranian civil authorities. The Authority was not convinced that this issue raised a real chance of harm if the applicant were to return to Iran.
The Court is satisfied that this material is capable of supporting the Authority’s findings that there was not a real chance that he would face harm in Iran if returned. The finding is logical and based upon the evidence set out in the Authority’s decision record. The assertion there was no evidence to support the finding cannot succeed.
In the Court’s view, the sole ground relied upon, rises no further than emphatic disagreement with the Authority’s ultimate factual findings and seeks to engage the Court in impermissible merits review. Ground one has no merit.
DETERMINATION
As the applicant is unrepresented, the Court has carefully perused the Authority’s decision and the supporting paperwork to it but is unable to detect any un-articulated jurisdictional error. In these circumstances, the Court has no option other than to dismiss the application.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 28 October 2024
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