CPQ19 v Minister for Immigration

[2020] FCCA 657

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPQ19 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 657

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied the relevant law – whether the Authority failed to have regard to material to which it was required to have regard and/or relied on material on which it was not permitted to rely – whether the Authority misapprehended information before it – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 476

First Applicant: CPQ19

Second Applicant: CPS19

Third Applicant: CPW19

Fourth Applicant: CPX19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1655 of 2019

Judgment of: Judge Street

Hearing date: 23 March 2020

Date of Last Submission: 23 March 2020

Delivered at: Sydney

Delivered on: 23 March 2020

REPRESENTATION

Counsel for the Applicant: Mr B Zipser via video link

Solicitors for the Applicant: Stamford Law Firm

Counsel for the Respondents: Mr T Reilly via video link

Solicitors for the Respondents: Mills Oakley

ORDERS

1. This hearing is to be recorded by Auscript together with the Microsoft Teams recording software.

2. There is to be no other recording of the hearing other than by Auscript and the Microsoft Teams recording software.

3. Leave is granted to the applicant to rely upon the further amended application in the form annexed to the affidavit of the solicitor for the applicant filed on 19 March 2020 and directs that an electronic copy of the further amended application be filed and served on or before 27 March 2020.

4. The further amended application is dismissed.

5. The first, second, third and fourth applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 23 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1655 of 2019

CPQ19

First Applicant

CPS19

Second Applicant

CPW19

Third Applicant

CPX19

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act on 29 May 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Safe Haven Enterprise visas (“Protection visas”).

2. The first applicant is the father of the remaining children applicants, being one son and two daughters. The Authority found the applicants to be citizens of Iraq.

3. The applicants claimed to be stateless Faili Kurds and to fear harm on that basis.

4. On 11 April 2019, the Delegate found that the applicants failed to meet the criteria for the grant of Protection visas.

5. On 17 April 2019, the applicants were sent a letter by the Authority informing the applicants that their applications for the Protection visas had been referred to the Authority for review and giving the applicants an opportunity to put on new information and submissions. The applicants put on submissions that are expressly referred to in the Authority’s reasons.

6. The Authority in its reasons identified the background to the Protection visa application.

7. The Authority had regard to the information provided by the Secretary under s 473CB of the Act.

8. The Authority referred to the new information and the submissions provided on behalf of the applicants. The Authority had regard to the submissions insofar as they engaged the Delegate’s reasons. The Authority also noted that it considered whether or not to get further information in relation to the third applicant and gave logical and rational reasons for not exercising the power under s 473DC of the Act.

9. The Authority summarised the applicants’ claims.

10. The Authority found the first applicant’s claim that he had changed his name to that of an Iranian national who sponsored his release from a refugee camp to be implausible and did not accept it.

11. The Authority identified the difficulty with the second and fourth applicant’s claims in relation to information on amayesh cards and that provided by their mother. The Authority referred to the dates of birth of the applicants being inconsistent and the Authority was not satisfied that their accounts were reliable.

12. The Authority accepted that the applicants are ethnic Faili Kurds. The Authority also accepted that the applicants are Shia and that the third and fourth applicants no longer are practising Muslims.

13. The Authority referred to the issue of statelessness. The Authority expressly referred to having considered the applicants’ testimony regarding the background and experience of the applicants and their amayesh cards, their account of attempts to obtain citizenship and their departure from Iran, the circumstances of their extended family in Iraq and country information.

14. The Authority referred to country information in relation to the process for acquiring citizenship.

15. The Authority referred to the first applicant returning to Iraq before 2003 and being able to resume living in family property that had previously been confiscated and being able to travel to Iran on two occasions to visit the other applicants.

16. The Authority referred to difficulty in accepting the applicants’ assertions in relation to attempts to re-avail themselves of Iraqi citizenship. The Authority  was concerned as to the absence of attempts to obtain Iraqi citizenship, noting the large number of Faili Kurds who did so and that the Iraqi Government welcomed them doing so.

17. The Authority referred to the extended family of the applicants in Iraq, some of whom are Iraqi citizens. The Authority referred to a substantial number of extended family living in Iraq.

18. The Authority found that the father, being the first applicant, was an Iraqi citizen either through re-availment or that he remained an Iraqi citizen while living in Iran. The Authority referred to country information in relation to reclaiming citizenship and found that the father, being the first applicant, was an Iraqi citizen and was not satisfied that the applicants were refused citizenship by the Iraqi authorities.

19. It was in that context that the Authority referred to the claims of the applicants concerning their departure from Iran and the assertion of having obtained fraudulently issued Iranian passports.

20. The Authority referred to the applicants’ evidence in relation to being made to sign a paper to agree to pay a fine if they ever return to Iran. The Authority referred to country information in relation to fraudulently issued passports and did not accept that the applicants were stopped at the airport at Tehran and made to sign an undertaking or paper as claimed.

21. The Authority referred to country information in relation to the applicants’ departure from Iran and the difficulty of using a fraudulent passport and the rigor of the border control in Iran. The Authority was not satisfied the applicants could have obtained falsely issued passports in their own names and used these to pass the stringent tests at the airport in Iran.

22. The Authority also referred to the military service issue in relation to the second applicant and that there was no evidence to indicate that the second applicant had provided evidence of acquittal from the compulsory military obligations at the time of departing Iran despite the assertion that he did so in the guise of an Iranian citizen.

23. In these circumstances, the Authority did not accept that the applicants obtained fraudulently issued passports and used them to depart Iran.

24. The Authority referred to country information in relation to stateless Farsi Kurds being able to reclaim citizenship and to the first applicant being able to travel freely and legally between Iraq and Iran. The Authority was satisfied that the first applicant was an Iraqi citizen.

25. The Authority found the applicants’ evidence about attempts to obtain citizenship to be implausible. The Authority also took into account that the wife of the first applicant has travelled back to Iraq on two occasions since her departure in 2011.

26. The Authority found the applicants’ account of their departure from Iran using fraudulent passports to be implausible. The Authority found that the applicants travelled to Australia on “legally issued passports”. The Authority referred to the applicants’ claim that they are stateless Farsi Kurds and did not accept this claim.

27. The reference to “legally issued passports”, on a fair reading of the Authority’s reasons, is plainly a reference to Iraqi legally issued passports. If there was any doubt in that regard, it is made crystal clear, first, by the earlier reference to the first applicant being a citizen of Iraq and, second, by the further references in the Authority’s reasons in paragraphs 48 and 49.

28. The Authority found that the second, third and fourth applicants were born in Iran and that they left Iran using their own legally issued passports and are Iraqi citizens.  The Authority referred to other evidence and country information and was satisfied that the second, third and fourth applicants’ amayesh identity records were destroyed in 2003 and not replaced because they had obtained Iraqi citizenship.

29. The Authority referred to country information in relation to Farsi Kurds and Shias.

30. The Authority referred to the first applicant having re-availed himself of his Iraqi citizenship and accepted that he would return to Iraq as a failed asylum seeker. The Authority also accepted that the second applicant had health issues, the third applicant had been harassed by a religious group and was no longer a practising Muslim and that the fourth applicant was harassed by a religious group and that the fifth applicant, who was removed as a party to these proceedings by order on 16 August 2019, is an infant dependent on the third applicant.

31. The Authority found that the applicants did not have a well-founded fear of prosecution by reason of being Farsi Kurds or by reason of their Shia ethnicity. The Authority found that no longer practicing as a Shia or Muslim would not give rise to a real chance of harm for the applicants upon return to Iraq.

32. The Authority was not satisfied that the applicants would engage in activities in Iraq that would attract the adverse attention of the authorities and was not satisfied that they would be perceived as having a political opinion of concern or one that would attract adverse attention.

33. The Authority referred to the stated violence and was not satisfied that any difficulty the applicants may experience in this regard would be for the reason of gender, or as a result of systemic or discriminatory conduct, or for reasons of race, religion, nationality or membership of a particular social group or political opinion.

34. The Authority referred to the circumstance of the third applicant and was not satisfied that she would be subject to an honour killing from her family or similar harm from others and was not satisfied there is a real chance the third applicant would experience harm on this basis.

35. The Authority was not satisfied that there was a real chance the applicants would suffer harm because they are failed asylum seekers and returnees from a Western country.

36. The Authority was not satisfied that there was a real chance of the applicants suffering persecution in the reasonably foreseeable future. The Authority found that the applicants did not meet the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicants did not meet the criteria in s 36(2)(a) of the Act.

37. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Iraq from Australia, there is a real risk that the applicants will suffer significant harm. The Authority found that the applicants did not meet the criteria in s 36(2)(aa) of the Act.

38. Accordingly, the Authority affirmed the decision under review.

Grounds in the Further Amended Application

1. The grounds in the further amended application are as follows:

   1. The Immigration Assessment Authority (“the IAA”) found at [47] and [48] and [72] that the receiving country for each applicant was Iraq. The definition of “receiving country” in s 5(1) of the Migration Act requires that, where a decision-maker decides that a non-citizen is a national of a country for the purpose of determining the applicant’s receiving country, the matter is “to be determined solely by reference to the law of the relevant country”. The IAA did not determine this matter solely by reference to the law of Iraq. To the contrary, first, the IAA determined the “receiving country” of the applicants without reference to the law of Iraq at the relevant time. Second, the IAA determined the “receiving country” of the applicants in reliance on additional material or matters. The IAA’s finding involved jurisdictional error.

   IA. The IAA at [48]-[49] found that by 2003 Applicants 2, 3 and 4 became Iraqi citizens. The IAA, in arriving at this conclusion, relied on a provision of the 2005 Iraqi Constitution to find that Applicants 2, 3 and 4 had an “ability to obtain Iraqi citizenship through their father”. This was a critical finding. The 2005 Iraqi Constitution is inapplicable in determining how Applicants 2, 3 and 4 became Iraqi citizens in or by 2003. The IAA failed to have regard to Iraqi law in force at the time it found Applicants 2, 3 and 4 became Iraqi citizens. The IAA instead relied on an inapplicable law. The IAA thereby failed to have regard to material to which it was required to have regard, and relied on material on which it was not permitted to rely. This is a jurisdictional error.

   IB. The IAA at [48]-[49] found that by 2003 Applicants 2, 3 and 4 became Iraqi citizens. The IAA, in arriving at this finding, failed to consider whether Iraq recognised Applicants 2, 3 and 4 as its nationals. Taking into account the approach adopted in AZK15 v Minister [2015] FCA 1444 at [39], this is a jurisdictional error.

   2. The IAA proceeded on the basis that the applicant adult children could “re-avail” themselves of Iraqi citizenship or “reclaim their” Iraqi citizenship, when in fact they could not. The IAA formed adverse credibility views about the adult children, such as at [36]-[39], on the basis of a (mistaken) view that the adult children could re-avail themselves of Iraqi citizenship. Where a decision-maker misapprehends information before it and makes adverse findings against an applicant based on the misapprehension, this may involve jurisdictional error.

   3. The IAA had before it amayesh cards in the name of the Adult Applicants issued in 2011. The IAA found at [31] that the evidence before it “leads me to doubt that these are genuinely issued amayesh cards”. The IAA’s finding at [31] that it doubted that the documents were “genuinely issued amayesh cards” indicates that the IAA had doubts about this matter. In the circumstances, the IAA ought to have considered the possibility that its finding on this point was wrong, and that the cards were genuine: see Minister v Rajalingam (1999) 93 FCR 220. Its failure to do so involved jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Zipser of counsel on behalf of the applicants submitted that the Authority had not made clear by whom legally issued passports had been issued, that the Authority had effectively left open that the applicants might citizens of Iraq or might be citizens of Iran and that the Authority had not determined the issue of citizenship by reference to the law of the relevant country as identified in the definition of receiving country.

2. A fair reading of the Authority’s reasons as a whole makes clear that the Authority rejected the assertion of the issue of fraudulent passports in Iran and made findings that the applicants are citizens of Iraq and that the applicants had legally issued passports. The reference to legally issued reflects a determination of the receiving country solely by reference to law within the meaning of s 5(1) of the Act. There was no need for the Authority, in the circumstances of the present case given the credibility findings which were made and which were open to the Authority, to make further reference to the law of Iraq.

3. No jurisdictional error as alleged in ground 1 is made out.

Ground 1(a)

1. In relation to ground 1(a), Mr Zipser argues that the Authority in its footnotes made reference to the applicants becoming citizens in 2003 and that the country information referred to by the Authority makes reference to a subsequent constitution in 2005.

2. The Authority’s reasons are not to be read with a keen eye for error. It was open for the Authority to draw inferences from country information before it. The proposition that the Authority was not entitled, from the country information, to draw inferences relating to the events in or after 2003 is unsound. It was a matter for the Authority what findings to make based on that country information.

3. There is no basis to find that the Authority did not have regard to the whole of the material before it. There was no reason, in the circumstances of the present case, for the Authority to make further reference to the 2005 constitution or the circumstances in 2003 in circumstances where it is clear that the Authority made adverse credibility findings that the applicants had used Iraqi passports to travel in and out of Iran.

4. No jurisdictional error as alleged in ground 1(a) is made out.

Ground 1(b)

1. In relation to ground 1(b), Mr Zipser submits that the Authority needed to proceed to determine whether Iraq would recognise the applicants as nationals. No such requirement arose in the circumstances of the present case where the Authority did determine whether the applicants were a national of Iraq by reference to the law of Iraq, having referred to the legally issued passports.

2. No jurisdictional error as alleged in ground 1(b) is made out.

Ground 2

1. In relation to ground 2, Mr Zipser submitted that there was an adverse finding which reflected a mistaken understanding of the ability of the applicants to re-avail themselves of Iraqi citizenship and relied, in particular, on what was said in paragraphs 36 to 39 of the Authority’s reasons. The Authority’s reasons must be read as a whole. The Authority’s reasons at paragraph 48 do not suggest that the remaining applicants had previously been Iraqi citizens who were deprived of and then regained Iraqi citizenship like their father. The reference in paragraph 47 to being stripped of Iraqi citizenship referred to the first applicant in or around 1979 but the Authority was not satisfied this remains the case. There is no misapprehension of the information before the Authority.

2. The Authority’s reasons in paragraphs 36, 38 and 39 refer to Farsi Kurds generally re-acquiring Iraqi citizenship and cannot be sensibly read as creating any inconsistency or contradiction to the findings made in paragraph 48.

3. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser submitted that the Authority in paragraph 31 of its reasons had made a finding that was equivocal, which required the Authority to consider the “What if I’m wrong?” proposition in respect of the amayesh cards.

2. It is again apparent, from reading the Authority’s reasons as a whole, in paragraph 49 of the Authority’s reasons that the Authority found that the amayesh cards were not replaced after 2003 and that the 2011 cards could not be genuine. The Court accepts the first respondent’s submission that that is the fair reading of the Authority’s reasons in so concluding and that there was not some doubt that required the Authority to consider what if it was wrong in relation to the amayesh cards.

1. No jurisdiction error as alleged in ground 3 is made out.

2. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 23 March 2020.

Associate:

Date: 23 April 2020