CQX18 v Minister For Immigration and Anor (No.2)
[2020] FCCA 2
•5 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQX18 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in its consideration of the real chance test or took into account an irrelevant consideration considered – jurisdictional error established in relation to the real chance test. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 13, 14, 36, 197C, 198, 473DD |
| Cases cited: Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 |
| Applicant: | CQX18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1435 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 November 2019 |
| Date of Last Submission: | 4 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Kline |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue removing the record of the decision of the Immigration Assessment Authority made on 18 April 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1435 of 2018
| CQX18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter returns to the Court for rehearing on remittal from the Federal Court.[1] The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
[1] CQX18 v Minister for Home Affairs & Anor [2018] FCCA 2015
The following statement of background facts is derived from the submissions of the Minister filed on 19 November 2019.
The applicant is a citizen of Iran and an Ahwazi Arab. He arrived in Australia on 16 July 2013 and on 21 September 2017 he made an application for a SHEV[2] in which he claimed to fear harm because of his ethnicity, because he had converted to Sunni Islam and because he had been critical of the Iranian regime. He also claimed to fear harm as someone returning to Iran as a failed asylum seeker from a western country.
[2] Safe Haven Enterprise Visa
On 1 March 2018 the delegate refused to grant the applicant a visa. The applicant’s matter was referred to the Authority for review.
On 18 April 2018 the Authority affirmed the decision under review.[3]
[3] CB 304
The Authority accepted that the applicant had experienced discrimination in Iran for reason of being an Arab, but did not accept that the applicant would, if returned to Iran, experience discrimination amounting to serious harm under the Migration Act 1958 (Cth) (Migration Act).[4]
[4] [13]; CB 308 and [14]-[16]; CB 309
The Authority accepted that the applicant attracted some adverse attention from the authorities for breaches of the Islamic moral code, for instance for being in public with his girlfriend and for drinking alcohol, but it did not accept that he was mistreated more seriously than being questioned and found the chance of him being seriously harmed for this conduct in the future was remote.
In relation to political opinion, the Authority accepted the applicant’s claims relating to his parents and in particular the experience of his mother, a teacher, having been detained, questioned and beaten because of her encouragement of the Arab students.[5] It did not however accept that she was an activist as claimed. The Authority found it was mere speculation by the applicant that his mother’s death was in any way connected to her mistreatment as a teacher.
[5] [17]; CB 310
The applicant claimed to hate the Iranian authorities and to have been active with an Ahwazi group in Australia, and to have expressed his political views on Facebook. The applicant claimed the authorities knew of his views from social media.[6] The Authority found that on the information before it the applicant’s claim that he had been active on Facebook was not supported. The Authority also had significant concerns about the veracity of the applicant’s claim that his father was visited by the authorities in Iran who claimed to have seen the applicant’s Facebook messages.
[6] [18]; CB 310
The Authority did not accept that the applicant was posting anti-regime material on his Facebook page or that the Iranian authorities visited the applicant’s father for that reason.[7] It found these claims to have been fabricated. The Authority gave the applicant the benefit of the doubt concerning his participation in events with the “Parliament of Ahwaz” group in Australia, including attending meetings and one protest in Canberra.[8] It did not accept however that he spoke at the protest and was not otherwise satisfied that the applicant would be identifiable to the Iranian authorities from attending meetings of the organisation.[9] The Authority was not satisfied the applicant held strong political views in opposition to the Iranian regime, and that he had exaggerated the level of his involvement.[10] The Authority was not satisfied the applicant had a well-founded fear of persecution in Iran on the basis of his political opinion.[11]
[7] [22]; CB 311
[8] [23]; CB 311
[9] [24]; CB 311
[10] [26]; CB 311
[11] [29]; CB 313
In relation to his claims concerning religious conversion the Authority noted the applicant claimed to have converted to Sunni Islam since being in Australia.[12] However the Authority was not satisfied, in the absence of corroborative evidence and on account of its other credibility concerns of the applicant, that he had truly converted. The Authority also did not accept that the applicant would face harm for reason of having no religion.[13]
[12] [30]; CB 313
[13] [31]; CB 313
Lastly, the Authority considered whether the applicant would face harm as an asylum seeker returning from the west. It was not satisfied that he would face harm for this reason.[14] In this respect the Authority took into account that the applicant no longer had his passport, and that Iran did not issue travel documents to involuntary returnees. The Authority found that if the applicant were returned to Iran it would be on a voluntary basis, and that as a voluntary returnee the applicant would not face a risk of harm.[15]
[14] [33]; CB 314
[15] [34]; CB 314
The Authority concluded that the applicant did not have the benefit of protection obligations arising under either s.36(2)(a) or s.36(2)(aa) of the Migration Act.
The current proceedings
These proceedings began with a show cause application filed on 23 May 2018. The applicant now relies upon an amended application filed on 11 October 2019. There are three grounds in that application:
1. The Second Respondent (the IAA) asked itself the wrong question or addressed the wrong issue in relation to the real chance test, and thus fell into jurisdictional error.
Particulars
(i)At paragraph [33] of the IAA decision record, the IAA accepts that Iranian authorities deal with returned asylum seekers in an arbitrary and unpredictable manner, and that asylum seekers with no political profile have been detained and harmed. If that is so, then there is a real chance it would happen to the Applicant.
(ii) However, the IAA says, in effect, that it is unlikely the Applicant will be detained and harmed, because detention and harm of returned of returning asylum seekers doesn't happen routinely.
(iii) However, the test of a well-founded fear is not that the thing feared will happen routinely, but that there is a real chance it will happen. As such the IAA applied the wrong test
2. The IAA took into account an irrelevant consideration when it found that, if the Applicant were returned to Iran, it would be on a voluntary basis.
Particulars
(i) The Applicant is in the process of seeking refugee status and is engaged in litigation accordingly.
(ii) He is currently, by virtue of ss 13 and 14 of the Migration Act 1958 (Cth) (the Act), an unlawful non-citizen. As such, if he were to fail in his litigation, then he would be required, pursuant to s 197C of the Act, to be removed from Australia. As such his return would not be voluntary.
(iii)The only way the Applicant's return to Iran would be voluntary, would be if he abandoned his litigation, and asked to be returned.
(iv)The IAA is not entitled to make that assumption, or any assumption about the Applicant's litigation. In so assuming, it took into account a matter it was not entitled to take into account.
(v)That erroneous assumption materially affected the Applicant's case, as the assumption lead the IAA to conclude that on return the Applicant would not be at risk of harm.
3. The Second Respondent denied procedural fairness to the Applicant and thus fell into jurisdictional error.
Particulars
(i)The Second Respondent failed to inform the Applicants of the nature of the material before it.
(ii)The Second Respondent failed to alert the Applicants to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iii)The Second Respondent failed to give the Applicants the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iv)In dealing with the review of the Applicants' claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the IAA considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Second Respondent, suffered inherently and by definition, from bias.
The third ground was abandoned at the trial.
I have before me as evidence the court book filed on 20 June 2018. Both the applicant and the Minister filed pre hearing submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions. The applicant filed post hearing submissions in relation to Ground 2 by leave on 4 December 2019.
Consideration
Ground 1 – did the Authority err in its application of the real chance test?
Applicant’s contentions
The applicant claims, among other things, that if he were returned to Iran, he would suffer persecution for having sought asylum in Australia, that is that his seeking asylum would result in his being imputed as having anti-government views.[16]
[16] [6]; CB 307, 15th dot point, and [32]; CB 313
The Authority accepted that Iranian authorities deal with returned asylum seekers in an arbitrary and unpredictable manner, and that asylum seekers with no political profile have been detained as a result.[17]
[17] Ibid. at [33]
The applicant submits that, if that is so, then there is a real chance it would happen to the applicant.[18] In Chan Yee Kin v Minister for Immigration,[19] Mason CJ agreed with McHugh J that a fear of persecution is well-founded if there is a real chance that the refugee will be persecuted if returned to his country of nationality.[20] McHugh J had said: [21]
a)a fear may be well-founded even though persecution is unlikely to occur;
b)even if the chance is less than 10 per cent;
c)that the threat need not be the product of any policy of the government;
d)that persecution includes loss of liberty.
[18] Migration Act, s.5J(1)(b)
[19] (1989) 169 CLR 379
[20] Ibid. at 389
[21] Ibid. at 429-430
The Macquarie Dictionary defines “arbitrary” as, among other things, “capricious; uncertain; unreasonable;” and “uncontrolled by law; using or abusing unlimited power;”[22]. It defines “unpredictable” as “not predictable; erratic”.[23]
[22] 6th Edition, at p 69
[23] Ibid. at 1613
The applicant contends that if Iranian officials are behaving in a capricious, uncertain, erratic, unpredictable manner in regards to whom they detain, and that they do detain people with no political profile, that means that there is a real chance that anyone will be detained. And if there is a real chance anyone will be detained, there is a real chance the applicant will be detained.
As Dawson J stated in Chan, “…a fear can be well-founded without any certainty, or even probability, that it will be realized.”[24] In other words, applying this to the applicant’s situation, the applicant contends that, while there is no certainty that he will be detained, and there may not even be a probability, given the random nature of the authorities’ conduct, there is a real chance.
[24] Chan at 397
In Chan, Toohey J said that the real chance test “does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.”
The applicant submits that here, given that the form of persecution feared may happen to any returnee, it is, by definition, not remote or insubstantial. He contends that the Authority should have realised this. Instead it did what Toohey J said should not be done under the real chance test. It weighed the prospects of persecution. It said that because returning asylum seekers are not “routinely” imputed with anti-government political opinions, and the applicant was not of a high political profile, he had not made out his case of a well-founded fear.
The Macquarie Dictionary defines “routinely” as “that which is customary or regular”. So the Authority is saying that for the applicant to make out his case, the situation would need to be “customary or regular”. That is, that the authorities would need to be detaining everyone, rather than just detaining some, randomly and unpredictably. This goes against every formulation of the real chance test set out by the judges in Chan.
The applicant further submits that it is perhaps not necessary to state, but for abundant caution, it should be noted that it is implicit in the country information quoted by and accepted by the Authority, that if the authorities are arbitrary and unpredictable in whom they detain, they will be unpredictable in the nature and length of that detention. There is no place for speculation that the applicant’s detention, should he be detained, might not be of such a nature as to give rise to serious harm to him.[25]
[25] See Migration Act, s.5J(4)(b) and (5) and Minister for Immigration v WZAPN (2015) 254 CLR 610
Minister’s contentions
The Minister submits that the applicant’s first ground should not be accepted. The argument is said to be based upon a misreading of the Authority’s reasons at [33]. First, the Authority at [33] referred to country information itself cited in a submission provided by the applicant to the Minister’s Department.[26] The fact that country information indicated that returnees were treated in an unpredictable or arbitrary manner did not mean, or even necessarily suggest, that there was a real chance that returnees in the reasonably foreseeable future would be subject to serious or significant harm as defined in the Migration Act. The Authority did not refer to any particular harm the individuals mentioned in the country information were subjected to, aside from being detained, and indeed the applicant’s submission went no further than referring to the “ill-treatment” one man received whilst in prison.
[26] see the relevant extract at CB 212
Secondly, the Minister submits that the Authority’s critical reasoning in relation to the country information was that it “does not indicate that returning asylum seekers are routinely imputed with an anti-government political opinion or harmed because of their asylum claim, or for reason of being in a western country”. There are two aspects to this reasoning, only the former of which is challenged in the applicant’s ground.
The first aspect is that the Authority focussed on the information not indicating any “routine” imputation of anti-government political opinion or harm. It was permissible within the “real chance test” for the Authority to have regard to likelihood of certain harm occurring. A fear is well-founded so long as it is based upon a possibility of persecution that is not “far-fetched”.[27] Further, Toohey J said of the real chance test,[28] that it “does not weigh the prospects of persecution, but equally, it discounts that which is remote or insubstantial”. Ultimately, it was a matter for the Authority to determine, as a question of fact, on the basis of the evidence and correctly applying the law, that the applicant’s fear of harm was not well-founded. The Authority did not misapprehend its statutory task. The Authority should not be understood to have found that only routine imputation of a political profile or harm would be sufficient to constitute real harm. The Authority’s reasons should not be read with an eye attuned to error.[29]
[27] Chan at 429 (McHugh J)
[28] at 407
[29] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
The Minister contends that the second aspect of the Authority’s reasoning which (even if the Minister’s argument advanced in the preceding paragraph were not accepted) would sustain the Authority’s conclusions at [33], is that the country information did not indicate that any harm would eventuate due to a particular Convention reason. Even if the country information demonstrated that returnees were subjected randomly to serious harm (and on that basis, this was sufficient for there to be a “real chance” a future returnee might face such harm), the Authority needed to consider whether the harm feared was for a Convention reason. It was open to the Authority to find that the country information did not indicate a risk of harm in connection with a returnee having made failed asylum claims in Australia, or in connection with the returnee having come from a western country. The applicant’s particular social group claim was that he was at risk as a failed asylum seeker from a western country.
Resolution
The issue in this ground concerns the Authority’s reasoning at [33][30] where the Authority stated:
The information cited in Appendix E: persecution of Failed Asylum Seekers in Iran included in the then representative's submission dated 6 October 2017, indicates "the Iranian authorities deal with returned asylum seekers in an 'arbitrary' and 'unpredictable' manner" and I note the reports from the Swiss Refuge Council in 2011 of returning asylum seekers with no apparent political profile who have been detained. However, the country information does not indicate that returning asylum seekers are routinely imputed with an anti-government political opinion or harmed because of their asylum claim, or for reason of being in a western country. Overall reports of asylum seekers being arrested on return largely relate to those involved in anti-government activities, either in Iran or during their time abroad and "member[s] of an oppositional political party or involved in political activities in other ways", or have been student activists. I have not accepted the applicant's claims to be involved in political activities in Australia.
(footnotes omitted)
[30] CB 314
There are a number of difficulties with that paragraph. The first is the apparent acceptance by the Authority that the Iranian authorities deal with returned asylum seekers in an “arbitrary” and “unpredictable” manner. That may mean that the Iranian authorities are operating in a chaotic manner, or it may mean that they are inefficient in the application of policy or it may mean that the authorities apply a deliberate policy of being arbitrary and unpredictable in order to maintain a climate of fear. That is not explored. The statement does, however, support a conclusion that there is a risk that anybody returning to Iran faces some risk of adverse action at the hands of the Iranian authorities. Read in context, that proposition is weakened by the Authority’s reliance upon country information to indicate that those asylum seekers experiencing harm in the form of arrest have an anti-government or political profile.
The problems, however, do not end there. The Authority also states that country information does not indicate that returning asylum seekers are “routinely imputed” with an anti-government political opinion or harmed because of their asylum claim, or for reason of being in a western country. This in turn suggests that returning asylum seekers may be imputed with an anti-government political opinion or otherwise harmed whether or not they truly have an anti-government or political profile.
Regrettably, the assessment of this aspect of the applicant’s claims is left hanging without a clear resolution.
I find that this aspect of the Authority’s decision demonstrates a misapplication of the real chance test and a constructive failure of jurisdiction.
It follows that the applicant should receive the relief he seeks.
Ground 2 – did the Authority take into account an irrelevant consideration in finding that if returned to Iran, the applicant would go on a voluntary basis?
Applicant’s contentions
The Authority acknowledged that Iran does not accept involuntary returnees.[31] It found that if the applicant were returned to Iran it would be on a voluntary basis, and as such he would suffer no harm.
[31] [34]; CB 314
The applicant is in the process of seeking refugee status and is engaged in litigation accordingly.
He is currently, by virtue of ss.13 and 14 of the Migration Act, an unlawful non-citizen. As such, if he were to fail in his litigation, then he would be required, pursuant to ss.197C and 198 of the Migration Act, to be removed from Australia. As such his return would not be voluntary.
The applicant contends that the only way the applicant’s return to Iran would be voluntary, would be if he abandoned his litigation, and asked to be returned.[32]
[32] Migration Act, s.198(1)
The applicant submits that the Authority is not entitled to make that assumption, or any assumption about the applicant’s litigation. In so assuming, it is said to have taken into account a matter it was not entitled to take into account.
That “erroneous assumption” is said to have materially affected the applicant’s case, as the assumption led the Authority to conclude that on return the applicant would not be at risk of harm. This precluded it from making findings on what would happen to the applicant if he were not a voluntary returnee.
Minister’s contentions
The second ground challenges the Authority’s finding at [34] that if the applicant is returned to Iran it would be on a voluntary basis. The Authority made this finding in the context of its awareness that Iran did not issue travel documents to involuntary returnees and it was accepted that the applicant no longer had his passport. A similar kind of asserted error was the subject of a judgment of the Federal Court in CLS15 v Federal Circuit Court of Australia.[33] In that case the applicant had relevantly claimed that he would come to the attention of the authorities in Iran because of the involuntary nature of his return there. Charlesworth J found at [60] that:
If the premise underlying the Tribunal’s reasoning in paragraph 32 is that of a voluntary return, then it has erroneously assessed a claim the appellant had not in fact made. If the premise underlying its reasoning is that of an involuntary return, then that premise is not only inconsistent with the inference the Minister seeks to have drawn from paragraph 31, but gives rise to an alternative error: the Tribunal has not dealt with the claim that the appellant would necessarily come to the attention of the authorities, not merely after his forcible return but because of the forcible return. In my opinion, neither assumed premise can be safely attributed to the Tribunal.
[33] (2017) 72 AAR 502
The Minister submits that in the present case, by contrast, the applicant did not claim to be at risk on the basis of an involuntary return. At the very least, there was no express claim to this effect.[34] It was not incumbent on the Authority to give the applicant an opportunity to comment on the question of his return to his home country. The Authority was entitled to address the applicant’s claims on the basis presented and on the information that was available to it. Contrary to the applicant’s submission, the Authority did not make any assumptions about the applicant’s litigation; the applicant’s litigation challenging the Authority’s decision will have come to an end by the time steps would be taken to arrange the necessary travel documentation for the applicant and arrange for his return to Iran. That the applicant is challenging the Authority’s decision in this proceeding, and wishes to be granted a visa to enable him to stay in Australia, does not mean that he would be forcibly or involuntarily removed to Iran once the applicant’s review and appeal rights and other (if any) visa avenues have been exhausted. The Authority’s assumptions were open to it on the available material.
[34] EYJ17 v Minister for Immigration [2019] FCA 347 at [10]
Resolution
By this ground, the applicant takes issue with [34][35] of the Authority’s decision where the Authority stated:
I accept the applicant no longer has his passport and to return to Iran the applicant would require documentation to be issued to facilitate his travel but country information advises that the Iran does not accept involuntary returnees and does not issue travel documents to involuntary returnees. I find that if the applicant is returned to Iran it would be on a voluntary basis and there is no indication in the information before me that voluntary returnees face harm on return. Country information indicates that people of interest may be questioned on return but I have not accepted that the applicant has been involved in activities in Australia that would raise concern or that he would be would be of interest to the Iranian authorities. I accept the applicant may be questioned because of his travel document, but I do not accept this would result in any adverse interest in the applicant or that he would be harmed during that questioning or process or that such would amount to serious harm. I note the claim that the applicant was detained in Dubai for a period for reason of false permits in his passport, however there is no indication that he faced any difficulties on return to Iran after this incident and I am satisfied that he would not face any harm on this basis should he return.
[35] CB 314
I prefer the Minister’s submissions on this ground. I dealt with the same issue recently in DEL18 v Minister for Immigration & Anor[36] where I stated at [24]-[36]:
[36] [2019] FCCA 2792
As a model litigant, the Minister draws the Court’s attention to the decision of the Federal Court in CLS15 v Federal Circuit Court of Australia.[37] In that case, as in the present, country information was considered indicating that Iran would not accept involuntary returnees. Charlesworth J found at [41] that the appellant’s claim to face harm as a failed asylum seeker was “clearly articulated as one based on a premise that he would be “forced” to return to Iran”. The Tribunal was found to have erred in relation to this claim. If it considered return would be voluntary, it assessed a claim that had not been made.[38] If it considered return would be involuntary, the Tribunal failed to deal with the claim that the applicant would come to the attention of the authorities not simply after his forcible return, but because of it.[39] The Court was unwilling to infer a finding that the applicant would not be returned until feasible, in circumstances where this would involve indefinite detention.[40]
[37] (2017) 72 AAR 502
[38] [60]
[39] [60]
[40] [62]
CLS15 has been distinguished in subsequent cases.[41] In EWP17, Logan J allowed an appeal from a decision in which it was found that the Authority fell into the error found in CLS15. The Authority in that case had referred to the applicant’s submission that his return “facilitated by both the Australian and Iranian governments” would result in him being questioned by the authorities, who would become aware of his past. Within this context, the Authority found that:
[41] See for example Minister for Home Affairs v EWP17 [2019] FCA 205 and DFA18 v Minister for Home Affairs & Anor [2019] FCCA 258
Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport ... they will generally only be questioned if they had done something to attract the specific attention of authorities.
Relying upon the Authority’s reasoning, the Court found at [13]-[14] that the Authority had disposed of the applicant’s claim.
Similar if not identical country information was relied upon by the Authority in the present case. At [39], the Authority found that:
Irrespective of whether a returnee is travelling on a temporary travel document, or their ordinary passport ... they will generally only be questioned if they had done something to attract the specific attention of authorities.
This passage is substantively identical to the passage upon which reliance was placed in EWP17. The Authority here, as in EWP17, went on to consider what would happen if the applicant was questioned.[42] In the present case, the Authority found that even if the applicant was questioned, and even if his status as a failed asylum seeker became known, this would not result in the relevant harm.[43]
[42] see EWP17 at [8]
[43] [41], [47]
In any event, proceedings are to be determined not by analogy, but by the application of principles to the facts of the particular case.
In the present case, the high point of the applicant’s claims regarding involuntary return is found in his submissions to the Authority at CB 221. The applicant claimed that:
…as an involuntary returnee, it would not take long to establish that the Applicant is a person who has attempted to seek asylum in the West by making claims against the Iranian regime on the basis of his religious and political opinion”.
The Authority does not appear to have regarded this as new information.[44]
[44] [2]-[5]. Whether or not it was properly categorised as such would depend on a full review of the materials, including any audio materials that are not in evidence. I accepted that such a review was unnecessary in circumstances where, to the extent the Authority erred in not finding the claim to be excluded under s.473DD of the Migration Act, this was in the applicant’s favour. It was therefore not material in the sense that it could not have deprived the applicant of the possibility of a successful outcome: Minister for Immigration v SZMTA (2019) 93 ALJR 252
The applicant’s claim regarding involuntary return was that this would expose him to harm because it may result in his identification as a failed asylum seeker from the West. The Authority accepted that the applicant may be identified as a failed asylum seeker. It accepted this may result in him being briefly detained and questioned. It did not accept that this would result in him being imputed with an anti-government political opinion or facing serious or significant harm.
In these circumstances, the Authority’s findings were dispositive. Even if the Authority had overlooked the applicant’s claim regarding involuntary return (which I have not accepted), it is difficult to see how this could be said to have affected its exercise of jurisdiction. This is because, regardless of whether the return was voluntary or involuntary, the Authority accepted that the authorities may question the applicant, and may become aware he was a failed asylum seeker, but did not accept that he would face the relevant harm in result.
The better reading of the Authority’s reasons is that, having found that involuntary removal was precluded on the country information, the Authority proceeded to consider what would happen if the applicant did return, voluntarily. In DFA18, Judge Vasta observed at [39]-[41]:
But in some ways, when I look at the matter, and whilst what I am saying is probably contrary to what was said by Charlesworth, J in CLS15, it seems to me that this does not matter. It really matters not whether the Applicant will be a voluntary or an involuntary returnee to their country of origin, because that is not what the IAA needs to consider. The IAA needs to consider what will happen if, and when, the Applicants are returned to their country.
What has occurred in this case is that the IAA has noted the DFAT information that involuntary returnees will not be allowed into Iran. If that is so, then that is so. But the IAA's role is not to then say, "well, that is the end of the matter". The IAA's role is to look at what will happen if they are returned, and this is what this IAA has done. The criteria that the IAA have to look at as to whether s.36(2)(a), being the refugee criteria, or s.36(2)(aa), the complementary criteria, have been satisfied.
Whether or not the Applicant is a voluntary returnee or an involuntary returnee does not affect the question that the IAA has to decide unless there is a specific claim that the manner of return, whether it be voluntary or involuntary, affects what will happen on return; otherwise it is irrelevant to the decision of the IAA. Whether the Applicant is a voluntary returnee or an involuntary returnee does not in any way, shape or form affect the ascertaining of whether or not the criteria are fulfilled.
Put another way, the manner of return is only relevant insofar as it is material to the assessment of the applicant’s claims against the statutory criteria. This is not inconsistent with what was said in CLS15.
In order to preserve his position on appeal, the Minister formally submits that CLS15 was wrongly decided. It is unnecessary for me to express any view on that, and indeed it would be inappropriate to do so. Suffice to say that in my view, on the present facts, this case can be readily distinguished from CLS15.
I maintain those views in this case. The applicant’s post hearing submissions seek to reconcile the decision of Charlesworth J in CLS15 with the decision of Logan J in EYJ17, and my own decision in DEL18. It is not necessary to pursue that question. The Authority did not fail to deal with any claim by the applicant that he would be involuntarily returned because no such claim was made. The Authority dealt with the circumstances of the applicant’s possible return to Iran as best it could envisage those circumstances. I see no error in the Authority’s approach.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders for the issue of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 February 2020
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