CMG18 v Minister for Immigration
[2019] FCCA 3409
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMG18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3409 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well-founded – whether the Authority overlooked a relevant consideration or based its decision on no evidence considered – non disclosure certificate considered. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DA, 473DC, 473DD, 473GB |
| Cases cited: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 CED16 v Minister for Immigration [2018] FCA 1451 Minister for Immigration v SZMTA [2019] HCA 3 MZAFZ v Minister for Immigration (2016) 243 FCR 1 |
| Applicant: | CMG18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1354 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 June 2019 |
| Date of Last Submission: | 17 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 15 May 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1354 of 2018
| CMG18 |
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 16 April 2018. 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 Minister.
The applicant is a citizen of Iraq born in May 1971.[1] He first arrived in Australia, apparently at Christmas Island, in July 2013 as an unauthorised maritime arrival.[2] On 31 October 2016, the applicant applied for the visa.[3]
[1] Court Book (CB) 54
[2] CB 61, 145
[3] CB 40-78
In support of his application for the visa, the applicant raised the following matters:
a)the applicant was born in Baghdad, Iraq. In 1981, the Hussein regime deported the applicant and his family to Iran. They lived in Iran as refugees, and his father eventually opened a shop, where the applicant worked. They were discriminated against in Iran for being Arabs;[4]
b)in 2004, the applicant and his family moved back to Iraq, and discovered that their old house had been confiscated. The applicant’s brother, “A”, met a friend who was a member of the Mehdi Army, and who got their house back;[5]
c)however, afterwards, the man who had been evicted from the house organised for the applicant’s two brothers to be shot. The applicant returned to Iran, but did so illegally as he no longer had a green card. The applicant is unable to obtain Iranian citizenship.[6]
[4] CB 91
[5] CB 91-92
[6] CB 92
On 21 June 2017, the delegate refused to grant the applicant the visa.[7] On 27 June 2017, the delegate’s decision was referred to the Authority for review.[8] On 10 August 2017, the applicant provided a submission to the Authority in support of his case.[9] On 16 April 2018, the Authority affirmed the delegate’s decision.
[7] CB 142-165
[8] CB 168-169
[9] CB 178-184
The Authority’s decision
The Authority had regard to the materials referred to it by the Secretary, as well as the applicant’s submission.[10] The Authority did not accept the applicant’s claim raised in his submission that he had difficulty with the interpreter during his interview with the delegate, or that he was impeded in the presentation of his case.[11] It further was not satisfied of the matters in s.473DD(b)(i) or (ii) of the Migration Act 1958 (Cth) (Migration Act) in relation to two pieces of new information that the applicant had provided, and thus did not consider them.[12]
[10] CB 189 [4]-[5]
[11] CB 189 [6]
[12] CB 189-190 [7]
The Authority found it plausible that the applicant could have retained his green card after 2001, and that when he returned to Iraq in 2004 he was required to hand over his green card to the Iranian authorities.[13] The Authority found it to be far-fetched that the applicant was able to extend his Iranian drivers licence in 2012 for a 10 year period, in circumstances where he claimed to be unlawfully in Iran and without any documentation.[14] It also appeared to the Authority that the applicant and his wife’s marriage had been registered with the Iranian authorities.[15]
[13] CB 197 [34]
[14] CB 197 [35]
[15] CB 197 [35]
The Authority referred to Article 976 of the Iranian Civil Code, concerning those persons who are Iranian nationals, and considered that the applicant would have been able to apply for Iranian citizenship from 1989 onwards.[16] It further referred to country information that women could not generally pass on their Iranian nationality to a foreign-born spouse or to their children, and observed that the applicant’s children would thus not have been able to obtain their Iranian citizenship if the applicant was not an Iranian national.[17] The Authority did not accept that the applicant was without Iranian citizenship.[18] It was also not satisfied that the applicant’s wife and children had sought to renounce their Iranian citizenship, and considered that this claim was made in order to advance their desired migration outcome.[19] The Authority found that the applicant’s children and wife remained Iranian citizens.[20] The Authority was thus satisfied that Iran and Iraq are the receiving countries for the purpose of the review.[21]
[16] CB 198 [38]
[17] CB 198-199 [39]
[18] CB 199 [39]
[19] CB 199 [41]
[20] CB 199 [42]
[21] CB 199 [42]
The Authority did not accept that the applicant had a well-founded fear of persecution in Iran.[22] In relation to his Arab ethnicity, the Authority observed that there were no laws in Iran discriminating on the basis of ethnicity, and noted that the applicant had been able to work in Iran for himself and for others. It also observed that the applicant’s wife had been able to own property and that his children had access to education. The Authority was thus not satisfied that the applicant or his family had been denied access to education, employment or housing.[23] It further stated that country information indicated that most Arabs did not come to the attention of the Iranian authorities and were subject only to low levels of adverse attention. The Authority was not satisfied that the applicant would be active in asserting any cultural and political rights in Iran, which might have increased his risk of harm.[24]
[22] CB 200 [43]
[23] CB 200 [44]
[24] CB 201 [45]
The Authority found that the applicant had departed Iran on his own genuine passport, but may no longer have that document.[25] It accepted that the applicant would be returning to Iran as a failed asylum seeker. However, the Authority considered that it was not a criminal offence in Iran to have sought asylum in another country and the applicant did not have the same profile as the persons who had been arrested in the past on their return to Iran. The Authority was not satisfied that the applicant would attract the adverse attention of the Iranian authorities on return. While the applicant may be questioned and detained for a brief period as a returnee, the Authority was also not satisfied that this treatment amounted to serious harm.[26]
[25] CB 200-201 [47]
[26] CB 201 [48]
Accordingly, the Authority was not satisfied that the applicant met s.36(2)(a) of the Migration Act.[27] In reliance on the same findings, it was also not satisfied that the applicant met s.36(2)(aa) of the Migration Act.[28]
[27] CB 201 [49]
[28] CB 202 [54]
Further, the Authority found that, as the applicant was a citizen of Iran, he had the right to enter and reside there, but had not taken all possible steps to avail himself of that right.[29] Accordingly, the Authority was also satisfied that s.36(3) applied to the applicant, such that no protection obligations were owed to him in any event, that is, even if it were to accept he had a well-founded fear of persecution in Iraq.[30]
[29] CB 202 [58]
[30] CB 203 [60]
The current proceedings
These proceedings began with a show cause application filed on 15 May 2018. The applicant continues to rely upon that application. The two grounds in that application are:
1 –the authority did not consider relevant consideration.
2 –the authority’s decision is based on no evidence in relation to the determination of citizenship
At the trial of this matter on 19 June 2019, I received as a submission the applicant’s affidavit filed with his application. I received the court book filed on 9 July 2018 as evidence.
The applicant’s oral submissions at the trial focussed on the findings made by the Authority concerning his and his wife’s citizenship. The applicant maintains that his wife’s mother acquired Iranian citizenship which was passed on to his wife. He maintains that documents provided to the Australian Embassy in Iraq prove that Iranian citizenship passed from his children’s maternal grandmother and mother to them (and by implication not via him).
At the conclusion of the hearing on 19 June 2019, I required the Minister to file and serve on the applicant further submissions on the issue of the non disclosure certificate reproduced at CB 166, together with any further evidence concerning that certificate. I provided the applicant with the opportunity to file and serve further submissions or evidence on the issue of citizenship.
I also gave the parties the opportunity to notify the Court following the delivery of the judgment of the High Court in BVD17 v Minster for Immigration[31] in the event that they wished to make further submissions concerning the impact of that judgment on this proceeding.
[31] [2019] HCA 34
On 3 July 2019 the applicant filed a further affidavit, made on 2 July 2019, with annexures, which are mostly Iraqi documents but include a purported translation certificate of Iranian nationality.
The Minister filed a substantial affidavit on 17 July 2019 on the question of the non disclosure certificate. Annexed to that affidavit is a copy of the certificate and the documents said to be covered by it. I received that affidavit.
The Minister filed further submissions concerning the non disclosure certificate on 17 July 2019.
Neither party sought the opportunity of filing further submissions following the decision of the High Court in BVD17.
Consideration
I accept the Minister’s submissions concerning the grounds of review advanced.
Ground 1
This ground alleges that the Authority did not “consider relevant consideration”. No particulars, or other explanation, of the ground is given, including as to the “relevant consideration” allegedly not considered. In the absence of any such development of the ground, it is, with respect, meaningless, and cannot succeed. Further, it is not apparent, on the face of the applicant’s claims and the Authority’s reasons, that any “relevant consideration” has, in fact, been overlooked.
Ground 2
This ground alleges that the Authority’s decision is based on “no evidence in relation to the determination of citizenship”. However, no such error is shown and this ground appears, ultimately, to be no more than a registration of the applicant’s disagreement with the Authority’s factual finding as to his citizenship.
First, this ground is expressed as a “no evidence” ground. For the applicant to succeed, he must demonstrate that there was no evidence, or material, at all to justify, or support, the Authority’s finding about his citizenship. If there was even a “skerrick” of material available which did justify or support the finding(s) (or inferences) made, the ground is not available.[32]
[32] see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] per Weinberg J; Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227 at [31] per Tracey J; MZZUG v Minister for Immigration [2015] FCA 1151 at [59] per Murphy J; BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33] per Moshinsky J
In the present case, there plainly was a substantial volume of “evidence”, or “material” (which includes inferences drawn from the material before the Authority), that supported the Authority’s non-acceptance at [39][33] of the applicant’s claim that he was without Iranian citizenship. For example:
a)the applicant provided his Iranian driver’s licence, issued in December 2002 and valid until December 2012. The applicant also indicated that he had renewed his Iranian licence in 2012 for a further 10 years. The Authority found this to be “of concern”, given the applicant’s claim to be in Iran illegally and without documentation;[34]
b)the applicant and his wife’s marriage had been registered by the Iranian authorities;[35]
c)Article 976 of the Iranian Civil Code (concerning nationality) suggested that the applicant would have been able to apply for Iranian citizenship from 1989 onwards;[36]
d)country information, which suggested that under Iranian law, women cannot pass on their Iranian citizenship to a foreign-born spouse or to their children, and that children receive the citizenship of their father regardless of birthplace.[37] Given this country information, the Authority considered that the applicant’s children would not have been able to obtain their Iranian citizenship unless the applicant was himself an Iranian national;[38] and
e)the applicant, when presented with copies of the Iranian passports and birth certificates of his wife and daughters, did not deny that the documents belonged to them.[39]
[33] CB 199
[34] CB 192-193 [16]; 197 [34]-[35]
[35] CB 197 [35]
[36] CB 198 [38]
[37] CB 198 [39]
[38] CB 199 [39]
[39] CB 199 [39]
The applicant’s “no evidence” ground is thus not made out. Further, while the ground is not expressed in this way, there was also nothing illogical or irrational about the Authority’s non-acceptance of the applicant’s claim that he was without Iranian citizenship. The Authority’s conclusion in this respect was rational and logical, because a rational and logical decision-maker could have reached the same conclusion on the available material.[40] Nor was there any illogical or irrational step in the reasoning process adopted by the Authority in reaching that conclusion.[41]
[40] cf. Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ
[41] cf. MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] per Besanko, Farrell and Thawley JJ
The non disclosure certificate
On 21 June 2017, a delegate of the Minister issued a certificate purportedly under s.473GB of the Migration Act (Certificate). The Certificate stated that it applied to a document or information in documents titled, “Re: GEI059 – Transaction Report – 25/05/2017 - ADD2017/1359475” and “Third party information –FW:BCC2015/2459392” “contained in PDF Portfolio …”. The Certificate also indicated that information in the document should not be disclosed to the applicant or their representative because “the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it contains information relating to an internal working document and business affairs”.[42]
[42] CB 166
The Authority did not disclose to the applicant the notification and existence of the Certificate or the document it purportedly covered. Nor did the Authority otherwise refer to the Certificate or explain the exercise of its discretion under s.473GB(3) in its decision record.
The Minister contends that no jurisdictional error is disclosed by the Authority’s failure to notify the applicant of the existence of the Certificate and the documents it purportedly covered. The Minister contends that no procedural fairness obligations on the part of the Authority were enlivened, given the operation of Part 7AA and s.473DA of the Migration Act. Further, the Minister contends that the applicant has not shown that non disclosure of the existence of the Certificate deprived him of the possibility of a successful outcome. That non disclosure was not material to the outcome of the Authority’s review.[43]
[43] Minister for Immigration v SZMTA [2019] HCA 3
The applicant made no submissions on the issue of the certificate.
It is uncontroversial that the Certificate purportedly issued under s.473GB of the Migration Act is invalid.[44]
[44] see MZAFZ v Minister for Immigration (2016) 243 FCR 1 at [37]
However, as the Full Federal Court explained in Minister for Immigration v BBS16[45] at [85]–[100],[46] neither limb of Beach J’s judgment in MZAFZ is applicable to Part 7AA of the Migration Act and the provision of an invalid s.473GB certificate to the Authority does not, of itself, lead to jurisdictional error by the Authority.[47] This aspect of BBS16 was said to have been correctly decided by another Full Federal Court in AYF16 v Minister for Immigration[48] at [40]. The applicant has not identified any way in which the invalidity of the Certificate in this case would lead to jurisdictional error. None is apparent.
[45] (2017) 257 FCR 111
[46] Which also involved an invalid certificate: see at [87]
[47] See also eg. CMH16 v Minister for Immigration & Anor [2017] FCCA 2433 at [80]-[97] per Judge Driver; FJE17 v Minister for Immigration & Anor [2018] FCCA 3410 at [22] per Judge Young
[48] [2018] FCAFC 129
Also, no error of the type identified by Derrington J in CED16 v Minister for Immigration[49] has occurred in the present case. The Minister formally submits that his Honour’s decision is wrongly decided. In any event, it is distinguishable on its facts. CED16 dealt with how the Authority, in that case, should have dealt with a Certificate, and information covered by it, in circumstances where the Certificate was invalid. Derrington J found that the Certificate, and the information covered by it, were (in that case) “new information”, but that Authority had failed to deal with that “new information” as required under s.473DE of the Migration Act. However, in this case, the documents covered by the Certificate were before the delegate.[50] Accordingly, they could not be “new information”.[51] CED16 is thus distinguishable.[52] Further, while the Certificate itself was not before the delegate, nothing actually stated in the Certificate itself could have affected the decision on the review. Thus, the Certificate in this case was not “new information”.[53]
[49] [2018] FCA 1451
[50] see the affidavit of Vandana D’Souza affirmed on 17 July 2019
[51] cf. s.473DC(1)(a). See generally the judgments of Judge Smith in AKQ16 v Minister for Immigration & Anor [2019] FCCA 90 at [14]-[45] and CYE17 v Minister for Immigration & Anor [2019] FCCA 102 at [33]-[50]
[52] eg. AKQ16 at [42]; CYE17 at [45]-[46]
[53] see eg AKQ16 at [43]-[44]; CYE17 at [47]-[48]
Finally, none of the documents covered by the Certificate would have been material to the Authority’s decision. These documents contain numerous AUSTRAC[54] Transaction records, in relation to money transfers to the applicant’s wife, in Tehran. These documents are not referred to by the Authority and they have no apparent relevance to any issue determined by it.
[54] Australian Transaction Reports and Analysis Centre
Insofar as the AUSTRAC records might suggest that the applicant’s wife continued to live in Iran, that was a matter stated to the delegate (and recorded in the delegate’s reasons) by the applicant himself.[55] The documents also include reference to the applicant’s wife and daughter having Iranian passports and having applied for a tourist visa to Australia in 2015. However, the reference in those documents to the applicant’s wife and daughter having an Iranian passport was of no significance, because the delegate in any event had a photocopy of their Iranian passports. These passports were put by the delegate to the applicant for comment[56] and were part of the review material provided to the Authority.[57]
[55] eg. CB 150
[56] CB 152
[57] see CB 127-128
Nothing in the High Court’s decision in BVD17 affects the above analysis.
Applicant’s further material
As noted above, the applicant has filed and served an affidavit sworn on 2 July 2019. It annexes a number of documents as well as a letter addressed to the Court. In relation to the documents (other than the letter), it appears that none of these were provided to, or otherwise before, the delegate or the Authority.[58] The applicant’s letter (dated 30 June 2019) makes submissions in relation to these documents and how they affect an assessment of his nationality. However, the applicant is effectively asking the Court to redetermine that question for itself (including on the basis of the further documents provided). That the applicant is an Iranian national was a matter determined by the Authority. The Authority gave rational and logical reasons for reaching that conclusion, as explained above.[59] The additional materials provided by the applicant do not establish jurisdictional error by the Authority.
[58] Annexure H appears to be very similar in nature to the document appearing at CB 129, although Annexure H cannot have been before the Authority, given it bears a translation date of June 2019
[59] see at [34]-[42] of its reasons, in particular (CB 197-199)
Conclusion
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 forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 December 2019
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