CRS20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 427
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
CRS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 427
File number: MLG 2396 of 2022 Judgment of: JUDGE RILEY Date of judgment: 24 May 2023 Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether it was legally unreasonable for the Authority not to invite the applicant to comment on whether he had acquired Iranian citizenship through paternal ancestry – whether it was legally unreasonable to find that the applicant had Iranian citizenship – whether it was legally unreasonable for the Authority to not submit new identity documents to the Document Examination Unit for assessment – whether it was irrational or illogical to find that the applicant could find work in the informal job market, including manual labour – whether the Authority failed to consider relevant information, being a 2016 DFAT report. Legislation: Migration Act 1958 ss 65, 473DC, 473DE Cases cited: CRS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 189
CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; (2019) 366 ALR 665; [2019] FCAFC 43
FSG17 v Minister for Home Affairs [2019] FCCA 2050
FSG17 v Minister for Immigration (2020) 274 FCR 456; [2020] FCAFC 29
Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216; [2020] HCA 24
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 201
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; (2018) 357 ALR 474; [2018] FCAFC 32
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; (2007) 235 ALR 609; (2007) 81 ALJR 1190; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; (2004) 206 ALR 471; [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 2 February 2023 Place: Melbourne Pro-bono Counsel for the Applicant: Shannon Finegan Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent Fiona Batten Solicitor for the First Respondent The Australian Government Solicitor Counsel for the Second Respondent No appearance Solicitor for the Second Respondent The Australian Government Solicitor ORDERS
MLG 2396 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRS20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
judge riley
DATE OF ORDER:
24 May 2023
THE COURT ORDERS THAT:
1.The application filed on 28 October 2022, amended on 13 January 2023 and further amended on 2 February 2023 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise visa (“SHEV”) pursuant to s.65 of the Migration Act 1958 (“the Act”).
BACKGROUND
The applicant is a Faili Kurd who was born in Iraq and deported with his family to Iran in the 1980s. He claimed to be stateless. He arrived in Australia as an unauthorised maritime arrival on 22 September 2012. On 31 March 2016, the applicant applied for a SHEV.
On 19 October 2017, a delegate of the Minister refused the SHEV application. Since 6 July 2017, the applicant has been in immigration detention. On 27 November 2017, the Authority affirmed the delegate’s decision (“the Authority’s first decision”).
The applicant sought judicial review of the Authority’s first decision in this court. On 22 August 2019, this court dismissed the application in FSG17 v Minister for Home Affairs [2019] FCCA 2050. On 11 March 2020, the Full Court of the Federal Court of Australia overturned the decision of this court, and set aside the Authority’s first decision in FSG17 v Minister for Immigration (2020) 274 FCR 456; [2020] FCAFC 29.
On 25 May 2020, the Authority again affirmed the delegate’s decision (“the Authority’s second decision”). On review, this court quashed the Authority’s second decision in CRS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 189. The Federal Court upheld the decision of this court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579.
On 27 September 2022, the Authority again affirmed the delegate’s decision (“the Authority’s third decision”). It is the Authority’s third decision that is presently before the court.
MATERIAL RELIED UPON
The applicant relied upon:
(a)his application filed on 28 October 2022, amended on 13 January 2023 and further amended on 2 February 2023 (“the application”);
(b)the court book filed on 25 November 2022;
(c)his written submissions filed on 13 January 2023;
(d)his written submissions in reply filed on 1 February 2023;
(e)the affidavit sworn by Rachel Saravanamuthu on 1 February 2023;
(f)his list of authorities filed on 1 February 2023; and
(g)his further written submissions filed on 10 February 2023.
The Minister relied upon:
(a)his response filed on 9 November 2022;
(b)the court book filed on 25 November 2022;
(c)his written submissions filed on 27 January 2023;
(d)his bundle of authorities filed on 1 February 2023;
(e)his further written submissions filed on 2 March 2023; and
(f)the affidavit affirmed by Siran Nyabally on 23 February 2023.
GROUND 1
The first ground of review in the application arises in circumstances where the delegate had accepted that the applicant was stateless. In the Authority’s third decision, its primary position was that it did not accept that the applicant was stateless. The Authority found that the applicant and his family had acquired Iranian nationality prior to 2001 through paternal links to Iran that he had not disclosed. However, the Authority had a separate and alternative strand of reasoning in which it accepted that the applicant was stateless.
In any event, ground 1 is:
The Second Respondent acted in a way that was legally unreasonable by not exercising its discretion under section 473DE of the Migration Act 1958 (Cth) to invite the Applicant to comment on the Second Respondent’s finding that the Applicant has Iranian citizenship via paternal ancestry, which deviated from the Second Respondent’s previous findings in its decisions dated 27 November 2017 and 25 May 2020, and the Department of Home Affairs’ decision dated 19 October 2017.
Particulars
A The Second Respondent made the following new findings:
a) that the Applicant is not stateless as he is an Iranian citizen;
b)that “[the Applicant] (and his family) acquired Iranian nationality through paternal links in Iran that he has not disclosed”; and
c)[the Applicant’s] family acquired Iranian nationality prior to 2001.
per decision at [84]-[85].
BThis finding was a deviation from the delegate’s decision, and represented a new change in disposition and premise by the Second Respondent.
CThe Applicant was not given notice of the change in disposition and premise prior to the decision being made, nor was he given the opportunity to respond.
DIt was not legally reasonable for the Second Respondent to not exercise its discretion under s 473DC of the Migration Act 1958 (Cth) to give notice of the change in disposition and premise, per Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526, DPI17 v Minister for Home Affairs [2019] 366 ALR 665, and BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [102].
Section 473DC of the Act provides that:
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DE of the Act provides that:
Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
The applicant argued that “the issue of the paternal ancestry of the applicant was new information that was relied on by the Authority”.
The Minister argued that the issue identified by the applicant was not “information” within the meaning of s.473DC of the Act.
I accept the Minister’s submission on this point. The applicant did not identify any new facts that the Authority relied upon. Rather, the applicant objected to the inferences and conclusions that the Authority drew from the facts of the case which the applicant summarised as follows:
a)the Applicant’s purported Iranian Identification Card for refugees was issued in 2001;
b)the Applicant’s mother did not present a more recent Iranian Identification Card for refugees within the last twenty years;
c)that it is “plausible that many Faili Kurds who settled in Iraq had paternal family ties remaining in Iran, such as paternal grandparents, great-grandparents and uncles”;
d)that “Faili Kurds who were deported from Iraq to Iran were able to acquire Iranian citizenship on the basis of proving paternal family links in Iran and, although the process could be long and complicated for some, many succeeded”;
e)that “one of the most common pathway for Faili Kurds to acquire Iranian nationality was by establishing paternal family links”;
a)adverse findings as to the credibility of the Applicant’s evidence; and
b)otherwise, there was a “dearth” of concrete evidence as to the Applicant’s family’s circumstances.
(footnotes omitted)
As the Minister noted, “[t]he term ‘information’ in the context of [Div 3] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”: Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216; [2020] HCA 24 at [21]. The term “information” therefore does not include inferences or conclusions drawn from the knowledge of facts or circumstances relating to material or documentation of an evidentiary nature.
It has long been established that the term “information” in the Act, albeit in a different division of the Act, does not include the subjective appraisals and thought processes of the decision maker. In SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; (2007) 235 ALR 609; (2007) 81 ALJR 1190; [2007] HCA 26, the plurality of the High Court said at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14]:
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …
FN 14: (2004) 206 ALR 471 at 476–477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–284.
As VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; (2004) 206 ALR 471; [2004] FCAFC 123 made clear, the Authority is not required to give an applicant advance notice of its conclusions because they are not information.
Moreover, unlike the Administrative Appeals Tribunal, the Authority is not required, on procedural fairness grounds, to give advance notice of its conclusions where they depart from the delegate’s findings. That was explained by O’Bryan J in CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502 at [46], where his Honour said:
[46]On a number of occasions, the Court has considered whether a failure by the Authority to seek additional information from a visa applicant under s 473DC when conducting a review is unreasonable in the legal sense. Each case turns on its own facts. However, it is possible to distil the following principles from the decisions:
(a)The legislative scheme of review established by Pt 7AA (review by the Authority) differs from the legislative scheme of review established by Pt 7 (review by the Administrative Appeals Tribunal). In particular, under Pt 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32]. However, those principles are not directly applicable to a review under Pt 7AA given the different statutory requirements for the review. Pt 7AA of the Act is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority”: DGZ16 at [69] per Reeves, Robertson and Rangiah JJ.
(b)As a general proposition, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [74] per Collier, Middleton and Rangiah JJ. It is open to the Authority to reach a decision based on the review material even if the referred applicant is unaware of the significance of that material: CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [55]- [57] per Thawley J.
(c)However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. Legal unreasonableness is not to be assessed through the lens of procedural fairness to the applicant; rather, a conclusion in this regard requires close focus upon the particular circumstances of exercise of the statutory power: Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, citing CRY16 at [67] and Li at [76]. An example is afforded by CRY16. The Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82] per Robertson, Murphy and Kerr JJ). CRY16 was a case where additional information (as to the reasonableness of relocation) was “necessary in order to complete the review”: DGZ16 at [70].
…
Having said that, and as acknowledged in CVP17, there may be occasions where it would be legally unreasonable for the Authority not to seek new information from an applicant. In the present case, the applicant submitted that this case was similar to Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 201, Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; (2018) 357 ALR 474; [2018] FCAFC 32; and DPI17 v Minister for Home Affairs (2019) 269 FCR 134; (2019) 366 ALR 665; [2019] FCAFC 43.
More particularly, the applicant relied on CRY16 at [82] where the Full Court of the Federal Court said:
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
The Minister said that CRY16 was distinguishable because, in that case, the question of relocation had never been considered by the delegate, whereas, in the present case, the question of whether the applicant was stateless was very much an issue before the delegate. That was made abundantly clear by the written submissions that the applicant sent to the delegate following his interview with the delegate. The submissions are at CB216 to CB234. At CB220, under the heading, “Claimed statelessness”, the applicant sets out various arguments about why the delegate should accept that he was stateless. In other words, the applicant was given an opportunity to address the issue of statelessness and he took that opportunity. I accept that CRY16 is distinguishable.
In DZU16, the applicant relied on [94], which is as follows:
Further, the exercise of the power to decide lacked an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Mazar-e-Sharif. The Authority did not have that information because the question of relocation to Mazar-e-Sharif was not explored, or the subject of findings, by the delegate. The Authority’s failure to give the respondent an effective chance to respond meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
However, DZU16 is distinguishable for the same reason that CRY16 is distinguishable.
In DPI17, the applicant relied on [45], which is as follows:
For the following reasons, we consider that the IAA’s failure to consider whether or not to exercise its power under s 473DC in respect of either the issue of the sexual assaults or the relevant inconsistencies was legally unreasonable because, in the circumstances, the failure was unreasonable or plainly unjust (see Li at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [10]- [11] per Allsop CJ, [76] per Griffiths J and at [101] per Wigney J). It is convenient to deal with each of those matters in turn.
The Minister submitted DPI17 was distinguishable because, in DPI17, the applicant’s demeanour before the delegate had been critical to their findings, whereas the Authority’s findings in the present case were not based on demeanour. I accept that is a critical distinction.
Having said that, whether unreasonableness arises depends on all the circumstances of the case, not whether the facts of the case have features in common with a previous case. Nevertheless, the Minister noted that the present applicant had run substantially the same argument before the Full Court of the Federal Court in FSG17 v Minister for Immigration (2020) 274 FCR 456; [2020] FCAFC 29, where the court said at [60]:
In the present case, the question of statelessness was considered by the delegate, including the possibility that the appellant had obtained Iranian citizenship (at p 12), and the appellants representatives had provided written submissions on the issue (submissions dated 13 September 2017 at pp 5-6 and 12). The Authority reached its conclusion on the issue based on the same information that was before the delegate. Within the decision-making framework established by Part 7AA, the fact that the Authority came to a different conclusion to the delegate did not trigger an obligation to seek further information from the appellant. In those circumstances, it was not legally unreasonable for the Authority to decide the issue without exercising the power under s 473DC(3) of the Act to invite the appellant to give new information.
I consider that, for the same reasons, the present unreasonableness ground cannot succeed.
The applicant said repeatedly that the Authority should have sought new information from the applicant because it acknowledged that there was a dearth of information on the applicant’s family circumstances. However, as is very well established that, in migration matters, it is for an applicant to put such information before the decision maker as they wish, not for the decision maker to seek out personal information about an applicant.
Finally, the Minister submitted that the present unreasonableness ground could not succeed because the Authority decided the case on the alternative basis that the applicant was in fact stateless. That is made clear by the Authority at [133], where it said:
In light of the history of this matter, I have considered the applicant’s position on the basis, contrary to my findings, that he is an unregistered stateless Faili Kurd refugee who left Iran illegally, as he has claimed. Even on that basis, for the following reasons I am not satisfied he has a well-founded fear of persecution.
The applicant argued that the Authority did not rely on an entirely separate strand of reasoning, because its credibility findings crossed both strands of reasoning. That is not so. The Authority’s strand of reasoning that deals with the applicant as a stateless Faili Kurd does not depend at all on his credibility. It is based on country information.
I accept that the Authority had a separate strand of reasoning on the statelessness issue which makes ground 1 otiose, unless there is a successful challenge to the separate strand of reasoning. Ground 5 concerns the separate strand of reasoning, and is addressed below.
Ground 1 fails for the various reasons discussed above.
GROUND 2
The second ground of review in the application is:
The Second Respondent acted in a way that was legally unreasonable in making a finding that the Applicant holds Iranian citizenship, a finding that was not supported by evidence.
Particulars
A The Second Respondent made the following new findings:
a) that the Applicant is not stateless as he is an Iranian citizen;
b)that “[the Applicant] (and his family) acquired Iranian nationality through paternal links in Iran that he has not disclosed”; and
c)[the Applicant’s] family acquired Iranian nationality prior to 2001.
per decision at [84]-[85].
BIn making this finding, the Second Respondent did not have any evidence before it that the Applicant is an Iranian citizen, and the conclusion lacked any evidentiary foundation.
CIt was not legally reasonable for the Second Respondent to come to this conclusion as the conclusion lacked any evidentiary foundation, per FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456.
The applicant did not put this forward as a no evidence ground as such. Such a ground could not have succeeded, because it is well established that the ground cannot succeed where there is even a skerrick of evidence in support of the conclusion. In the present case, there was at least a skerrick of evidence, from which the Authority drew the inference that the applicant had Iranian nationality. Nevertheless, the applicant argued that the Authority’s conclusion that the applicant had Iranian nationality was legally unreasonable.
The applicant said that the Authority, in its third decision, which is presently under review, made the same mistake as the Authority made in its first decision, as identified by the Full Court of the Federal Court in FSG17 as follows:
60.In the present case, the question of statelessness was considered by the delegate, including the possibility that the appellant had obtained Iranian citizenship (at p 12), and the appellant’s representatives had provided written submissions on the issue (submissions dated 13 September 2017 at pp 5-6 and 12). The Authority reached its conclusion on the issue based on the same information that was before the delegate. Within the decision-making framework established by Part 7AA, the fact that the Authority came to a different conclusion to the delegate did not trigger an obligation to seek further information from the appellant. In those circumstances, it was not legally unreasonable for the Authority to decide the issue without exercising the power under s 473DC(3) of the Act to invite the appellant to give new information.
61.However, we accept the appellant’s second contention that the Authority’s conclusion was legally unreasonable because an important step in the reasoning process was logically unsound. A factual conclusion may be legally unreasonable if it is based on illogical or irrational findings or inferences of fact: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1 at [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALD 224 at [37] – [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
62.In reaching its conclusion, the Authority referred to and took into account a DFAT report which indicated that Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship (at [26]). In context, it is clear that the Authority referred to the DFAT report to answer the question whether it was possible, under Iranian law, for a Faili Kurd refugee to become an Iranian citizen. That enquiry was logically necessary for the Authority to reach a conclusion that the appellant had become an Iranian refugee. However, there was no evidence that the appellant had Iranian paternal ancestry. The appellant claimed that his paternal ancestry was Iraqi and there was no evidence inconsistent with that claim. The Authority made no finding to the contrary. Accordingly, the Authority’s apparent reliance on the DFAT report to answer the question whether it was possible, under Iranian law, for a Faili Kurd refugee to become an Iranian citizen was illogical. The parts of the DFAT report relied on by the Authority were irrelevant to the appellant’s circumstances and therefore could not answer that question.
63.The Minister submitted that the Authority’s conclusion on statelessness was not irrational because other factual matters relied on by the Authority (referred to above) were sufficient to support its conclusion. We reject that submission. It can be accepted that the Authority relied on a number of factual matters in reaching its conclusion on statelessness. However, it is apparent that, as part of its reasoning process, the Authority thought it necessary to consider the question of the legal process by which the appellant may have become an Iranian citizen. On the face of the Authority’s reasons, that aspect of the Authority’s reasoning process was essential to its conclusion on statelessness. That being the case, it is not open to ignore that aspect of the Authority’s reasons. The legal unreasonableness in that finding undermined the Authority’s conclusion on statelessness.
The flaw in the reasoning in the Authority’s first decision was that it missed a logical step in its reasoning, being a finding that the applicant had Iranian ancestry. In the Authority’s third decision, it did make such a finding, being the finding that “he (and his family) acquired Iranian nationality through paternal links in Iran that he has not disclosed”. That makes the present case distinguishable from FSG17.
The relevant passages from the reasons for the Authority’s third decision are as follows:
78.By civil law, Iranian nationality is conferred mostly by jus sanguinis on the paternal side.18 In general, a child born to an Iranian father acquires citizenship at birth, regardless of where the child is born.19 There are other pathways to Iranian nationality, but they do not appear applicable to the applicant’s circumstances as, for example, they require birth in Iran or significant qualifications or sufficient capital to invest in and run a business in Iran.20
79.A 2001 report by DFAT noted that as many as 350 000 Iraqis expelled to Iran at the time of the Iran-Iraq war were able to prove their family links with Iran and were granted citizenship. It also noted that the Iranian government issued birth certificates to Iraqi-born people and that the certificates were a prerequisite for an application for Iranian citizenship. Certificates were issued to documented residents of Iran primarily to those who made applications to acquire Iranian citizenship when reaching 18 years of age, also Iraqis who had close familial relationship and those who had married an Iranian. It was possible to receive an Iranian birth certificate but to fail to gain citizenship. In order to prove Iranian ancestry, an individual must establish his or her direct line of descent from an Iranian citizen whose birth records are on file at the registration of personal status office. This was normally done by presenting official documents such as birth certificates or Iranian identity cards. The process of establishing Iranian ancestry could take years, depending on how complete the individual's documents were.21
80.A 2014 DFAT report before me also indicates a limited number of Iraqi Faili Kurds were able to secure Iranian citizenship. It noted a credible academic report estimates that prior to 2003, Iran had granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin, who could prove their Iranian origins, though their in-country sources were unable to verify this information. It also stated that Iranian authorities had significantly improved processing of Faili Kurds’ claims to Iranian citizenship in recent years, including by providing low-key processes taking place through the court system. It noted, in 2014, a slow but functioning naturalisation process was in place in Iran for Faili Kurds. DFAT was also told that the Iranian authorities were more tolerant of Iraqi refugees than they were of Afghan refugees, which may impact on citizenship determinations. DFAT was advised that Faili Kurds who could prove Iranian ancestry (through the paternal line) would be eligible for Iranian citizenship, although credible contacts assessed that only a very small number of Iraqi refugees would be able to establish Iranian ancestry.22
81.Nevertheless, a 2015 report by the Australian Department of Immigration and Border Protection Post in Tehran noted that over the past 30 years the majority of Faili Kurds expelled from Iraq, and their children, have managed to obtain Iranian nationality through paternal lines or marriage (female Faili Kurds marrying an Iranian national) or have been recognised as Iraqi citizens by the Iraqi authorities and issued with Iraqi Identity cards and passport. In 2010, it was reported that there were 4000 unregistered Iraqi refugees in Iran. In 2011, the UNHCR reported that there were 5719 registered Faili Kurd refugees in Iran. It noted it would be extremely difficult or almost impossible for a stateless Kurd to travel outside of Iran, apart from crossing the border into neighbouring Kurdish populated provinces of Iraq. It also noted that Faili Kurd refugees who present documentary evidence of their Iranian ancestry are able to obtain Iranian citizenship. Where Faili Kurd refugees can prove Iranian paternity, through their father, grandfather, great grandfather or uncle etc., they are eligible to obtain a shenasnameh (Iranian identity booklet – commonly referred to as birth certificate), national identity card and Iranian passport. In order to trace their paternity, Faili Kurd refugees could approach the office of the 'Organization for Civil Registration’ in Ilam province, which specialises in tracing southern Kurdish family heritage or ancestry as far back as the 1920s. If Faili Kurd refugees are able to trace their Iranian paternity through their father, grandfather, great grandfather and/or uncles, this is viewed by officials as proof of an individual’s entitlement to Iranian citizenship and identity documents.23
82.Despite DFAT indicating that only a smaller number of Iraqi refugees would be able to establish Iranian ancestry, the above country information indicates a process has been in place for many years for Faili Kurds who have been able to provide paternal family links in Iran, through their father, grandfather, great grandfather or uncle, to acquire Iranian nationality and earlier credible sources (including DFAT itself) indicated that a number of Faili Kurds were granted citizenship prior to 2003. The information before me indicates that many more Faili Kurds have acquired citizenship than remain stateless. I have also considered information before me which indicates that there are Faili Kurds whose families have always lived in Iran, so it is possible that Faili Kurds who had been residing in Iraq had family residing in Iran when they were deported from Iraq.24
83.On the evidence before me I am not satisfied the applicant’s claim to be stateless, and not an Iranian citizen, is credible. I am not satisfied the applicant has been forthright about his family’s circumstances in Iran. In particular I am not satisfied they lived the impoverished life he has described, surviving on very little income for many years. I have found this claim at odds with their ability to relocate to Qom and his family’s seemingly stable existence in Qom which does not reflect their claimed insecure existence. I do not accept as plausible the applicant’s explanation that they moved to Qom for religious reasons given their claimed circumstances. It is also at odds with their ability to pay rent, the applicant’s ability to travel to Astara regularly and to raise USD$10,000 to travel to Australia. When pressed, the applicant said he was able to find work when needed which is at odds with his claim that he could not find work for many years. I also find his inability to provide explanation for, or recall, critical events further undermines his credibility and I consider that he has not been forthcoming about his situation in Iran. He could not recall the last time he tried to renew his white card, whether his 2001 white card was the one that was confiscated by the Iranian authorities and what travel document he used to depart Iran. He was unable to satisfactorily explain how his family were able to relocate to Qom and find rental accommodation, why his last white card was not renewed by the Iranian authorities, and why friends and acquaintances would lend him a significant amount to money in his particular circumstances. I do not accept that this is a consequence of any health issues or the passage of time. During the PV interview the applicant appeared to struggle to recall or explain critical aspects of his claims for protection when challenged by the delegate. However, on other less contentious matters, such as discussions around the differing versions of his date of birth he purportedly provided to the Australian authorities, he provided robust and confident answers. I have noted a number of concerns with many of the refugee cards he presented including their differing formats, the timing of their presentation to the Australian government, that his 2001 white card was not in circulation in Iran then, that the cards dated after 2010 were issued in Khuzestan despite the family living in Qom since 2003, and that, implausibly, his mother had not held such a card for the last twenty years. Many of his claims in regard to these cards were not supported by country information. I simply do not accept that he and his family remained stateless in Iran. The natural corollary of this finding is that the applicant must be a national of a country.
84.However, as I am firmly of the view that the applicant has not been forthcoming about his and his family’s circumstances, I am left with a dearth of concrete evidence on this question. Nonetheless, considering the accumulation of concerns I have noted above regarding the applicant’s evidence, I am also firmly of the view the applicant is an Iranian citizen.
85.Country information before me indicates that Faili Kurds originate from the Zagros Mountains (Iran) and many migrated to Baghdad and other areas of what is now Iraq at the beginning of the 20th century. Further, that there are Faili Kurds whose families have always lived in Iran. It is plausible that many Faili Kurds who settled in Iraq had paternal family ties remaining in Iran such as paternal grandparents, great-grandparents and uncles. This is confirmed by country information that indicates that those Faili Kurds who were deported from Iraq to Iran were able to acquire Iranian citizenship on the basis of proving paternal family links in Iran and, although the process could be long and complicated for some, many succeeded. While there are other pathways to Iranian nationality, I consider it very unlikely the applicant and his family would have qualified for any of the other pathways in their circumstances. The country information indicates one of the most common pathway for Faili Kurds to acquire Iranian nationality was by establishing paternal family links. As I have not accepted that the applicant is stateless, and I have formed the view that he has not been forthcoming about his circumstances in Iran, I conclude that he (and his family) acquired Iranian nationality through paternal links in Iran that he has not disclosed. Given my concerns with the applicant’s purported white card issued in 2001 and the fact that his mother did not present a more recent card within the last twenty years, I am satisfied he and his family acquired Iranian nationality prior to 2001. (emphasis added)
FN 18:United Nations International Children's Emergency Fund (UNICEF),’Birth Registration in Iran: An analysis of the state of relevant laws in Iran', 1 July 2005, CIS17967
FN 19:DFAT, 'DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', 3 December 2014, CIS2F827D91722
FN 20:‘Amendment to the law on Determining the Nationality of Children Born from a Marriage of Iranian Women and Foreign Men [Islamic Republic of Iran]’, 7 September2021, available at Iranian Ministry of Foreign Affairs - Citizenship, 18 August 2022, available at - accessed 18 August 2022; DFAT, 'DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', 3 December 2014, CIS2F827D91722; United Kingdom Home Office (UK Home Office), 'Country of Origin Information Report - Iran (28 June 2011)', 1 June 2011, CIS28510; DFAT, ‘DFAT Country Information Report Iran’, 14 April 2020, 20200414083132
FN 21:DFAT, 'Iraqi refugees in Iran', 24 October 2001, CX59585
FN 22:DFAT, 'DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', 3 December 2014, CIS2F827D91722
FN 23:DIBP Tehran, 'Feyli Kurds - obtaining identity travel documents', 17 September 2015, CISEC96CF13392
FN 24:DFAT, 'DFAT Country Information Report Iran', 29 November 2013, CIS26780
In his written submissions filed on 13 January 2023, the applicant said in relation to this ground:
34The second ground adopts the same impugned arguments from the Authority’s decision as Ground 1 above.
35There was no positive evidence before the Authority that suggested that the Applicant indeed had Iranian patriarchal lineage, and thus Iranian citizenship. The reasons for the Authority concluding that the Applicant was not stateless were based on a significant conclusion that lacked an evidentiary foundation. Such a factual conclusion is legally unreasonable.26
36The Applicant’s consistent evidence throughout the protection claim process was that his father was born in Iraq, not Iran.27 The Applicant had no ‘Iranian paternal ancestry’ at all. The Applicant’s signed statement noted ‘both my parents were born in Iraq and are Kurdish, as were my grandparents’.28 This was ‘a submission of substance’,29 that was plainly not considered by the Authority.30
37The Authority’s reliance on the position of ‘some Faili Kurd refugees’ with Iranian paternal ancestry was of no relevance at all to the Applicant. There was also no country information at all before the Authority which indicated that Faili Kurd refugees with only Iraqi paternal heritage, like the Applicant, would ever receive Iranian citizenship. Notwithstanding that, the Authority concluded just that, and relied on that as a basis to reject the central basis for protection of the Applicant, being statelessness.
38Essentially, the Authority came to its finding by way of negative factual inference; it found that the evidence provided by the Applicant, that is, the Iranian Identification Card for refugees, was not of sufficient quality to prove that he was registered as a refugee in Iran, and therefore the Applicant must have acquired citizenship. It found that because it was possible for the Applicant to acquire citizenship (however remote, and entirely dependent upon the ability to prove Iranian lineage though his patriarchal ancestors, and however difficult, noting that the process is “long and complicated”), then that must have been the case.31
39As such, the finding central to the Authority’s enquiry, that is, the conclusion that the Applicant is not stateless, is founded on a legally unreasonable premise.
FN 26:FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 [61].
FN 27:See, for example, CB 72, 178.
FN 28:CB 173 [8].
FN 29:SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [75]-[76], [78]-[81] per Griffiths J, citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [11] per Siopsis, Perram and Davies JJ and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38] per Kenny, Griffiths and Mortimer JJ.
FN 30:Minister for Home Affairs v Omar [2019] FCAFC 188 at [34] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ; Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [44] per Wilcox and Marshall JJ; see also W280 v Minister for Immigration and Multicultural Affairs [2001] FCA 1606 at [26] per French J.
FN 31:Cf FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 [62].
In his written submissions filed on 27 January 2023, the Minister said in relation to this ground:
24.On the evidence before it, the IAA was not satisfied that the applicant’s claim to be stateless, and not an Iranian citizen, was credible (CB 1247 [83]). The IAA found the applicant was an Iranian citizen and concluded the applicant “(and his family) acquired Iranian nationality through paternal links in Iran that he has not disclosed” (CB 1248 [84]).
25.It is accepted that there was no positive evidence that the applicant had Iranian paternal ancestry or evidence that was inconsistent with the applicant’s claim that his paternal ancestry was Iraqi.20
26.The question is whether there were rational and logical grounds from which to infer, as a matter of fact, the applicant was an Iranian citizen.
27.The IAA was not satisfied that the applicant had been forthright about his family’s circumstances in Iran (CB 1247 [83]). It was open to the IAA to reject the applicant’s claim to be stateless and not an Iranian citizen (CB 1247 [83]). The rejection was made in light of all of the evidence before the IAA, including the IAA’s rejection that the Iranian identity cards issued after 2001 were genuine (CB 1244 [70]) and the credibility issues that arose from:
(1)the applicant’s family’s apparent ability to survive in Iran on very little income for many years;
(2) the family’s ability to relocate to Qom;
(3)the family’s seemingly stable existence in Qom, which did not reflect their claimed insecure existence;
(4) the family’s ability to pay rent;
(5) the applicant’s ability to travel to Astara regularly;
(6) the applicant’s ability to raise $US10,000 to travel to Australia; and
(7)the applicant’s inability to recall the last time he had renewed his white card, whether his 2001 white card was the card that was confiscated by the Iranian authorities and what travel document he used to depart Iran (CB 1247 [83]).
28.It followed, as a logical consequence (or natural corollary) of the IAA’s rejection of the applicant’s claim to be stateless, the applicant was a national of a country (CB 1248 [83]). The IAA accepted the applicant did not have Iraqi nationality (CB 1246 [77]) and concluded the applicant is an Iranian citizen (CB 1248 [84]). The IAA acknowledged it had a “dearth of concrete evidence” on the question of the applicant’s family circumstances and considered this was because the applicant had not been forthcoming about his and his family’s circumstances (CB 1248 [83]).
29.The IAA considered the pathways to citizenship and considered it was very unlikely that the applicant and his family would have qualified for any of the other pathways, other than proving paternal family links in Iran (CB 1248 [84]).
FN 20:FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456.
I accept the Minister’s submissions on this ground. On the evidence before it, it was reasonable and not irrational for the Authority in its third decision to form the view that the applicant was not stateless, because there were various features of his life that did not accord with the descriptions in country information about the life of stateless people in Iran. The Authority concluded that the applicant must have been a citizen of somewhere. It accepted the applicant’s claim that he was not a citizen of Iraq: [77]. For reasons which it explained, the Authority did not accept various of the applicant’s claims about his family’s links, or lack thereof, to Iran, and concluded that the applicant had not disclosed all of the relevant information. It then did not accept his claim that he was not a citizen of Iran.
The Authority’s conclusion that the applicant was an Iranian citizen was logical and reasonable, even though there was no direct evidence of his citizenship. The conclusion was based on inferences and the assessment of the evidence before the Authority that were logical and reasonably open to it.
Moreover, as discussed in relation to ground 1, the Authority also assessed the case on the alternative basis that the applicant was in fact stateless. Unless there is a relevant error in the alternative strand of reasoning, any error on the question of statelessness would be irrelevant.
Ground 2 also fails.
GROUND 3
The third ground of review in the application is:
The Second Respondent acted in a way that was legally unreasonable by not exercising its discretion under section 473DC of the Migration Act 1958 (Cth) to provide certain new identity documents before the Second Respondent to the Document Examination Unit for assessment.
Particulars
AThe Second Respondent received a number of new documents from the Applicant, in the form of Iranian Identity Cards, which qualified as “new information” and was accepted by the Second Respondent.
BPreviously, Iranian Identity Cards had been received by the delegate of the Minister, and had been assessed by the Department’s Document Examination Unit.
CThe Second Respondent did not send the new documents to be assessed by the Document Examination Unit, and made a finding that the documents were not genuine, per decision at [60]-[67].
DIt was not legally reasonable for the Second Respondent to not exercise its discretion under s 473DC of the Migration Act 1958 (Cth) to send the new documents to the Document Examination Unit for assessment as to genuineness, per Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526, DPI17 v Minister for Home Affairs [2019] 366 ALR 665.
The relevant passages from the Authority’s reasons for decision are as follows:
58.The applicant provided to the IAA in August 2022 further ‘Iranian Identification Cards for Foreign Immigrants’ (and their accredited translations) for his family members. This included:
a. Two cards for his father issued on 21 June 2011 and 20 June 2012
b. One card for his mother, the date of which is illegible.
c.Three cards for his brother; one issued on 20 June 2012, one undated, and the last card (referred to as a ‘Temporary Residence Card for Foreign Immigrants’) expired on 21 June 2022.
59.I have a number of concerns with the cards presented.
60.The applicant has referred to his 2001 card as a white card but country information before me indicates that white cards were issued from 2002 and that, prior to that, green cards were issued to Iraqi refugees.8
61.Although the applicant demonstrated awareness of the refugee registration system in Iran, I do not consider this conclusive evidence that he lived as a registered refugee for as long as he claims. During the PV interview he could not recall when he last tried to renew his card or whether it was the 2001 card that had been confiscated. Given he claimed to have renewed this card annually and the significance of these cards being the only identification document he allegedly had and the benefits they attracted, I find it difficult to believe that he could not remember these events. I am also concerned with the timing of the production of his other white card, which expired in 2011, which he provided to the delegate after the PV interview after being questioned by the delegate on this issue and I do not find his explanation compelling.
62.In his recent statement to the IAA, the applicant states that his mother and brother have been in Qom since 2003 and they have never left Qom. However, all of the cards he provided which were issued from 2010 onwards indicate the cardholders resided in Khuzestan or were permitted to reside and travel within Khuzestan. The brother’s cards, which expired in 2017 and 2022 respectively, both note that they were issued in Khuzestan province and both state that travel with the card is only permitted in the province of issue, and for travel outside this province, a permit must be obtained. This is consistent with country information above about registered refugees being required to stay within a particular province. However, reference to Khuzestan on these cards is at odds with the applicant’s claim that his family moved to Qom in 2003 and had never left. During the PV interview the applicant claimed they had to receive written permission from the Iranian authorities to move (to Qom) but he does not think that they did get permission. When the delegate asked him if he understood that the movement of stateless Faili Kurds is restricted in Iran, he said he did not know. However, this is at odds with his previous statement that his family had to get written permission to move. DFAT’s 2020 report notes that, while Amayesh cardholders can move freely within the province in which they are registered, they are subject to restrictions regarding their ability to relocate to other parts of Iran. It also noted that local sources told DFAT that, in practice, Amayesh cardholders often ignore these restrictions, but, where they do, would find it difficult to find formal employment.9 Unlike more recent publications, contemporaneous reports around the time when the move was said to have occurred, and the years afterwards, point to the restrictions but not the potential to circumvent them. For example, a 2008 report from the United States Committee for Refugees and Immigrants before the delegate noted that, to travel within the country, registered refugees required a temporary laissez-passer available through local authorities in the province where they had registered as refugees and refugees had to leave their refugee cards with the local authorities until they returned. It noted in the second half of 2007, the Iranian government heightened enforcement of its 2006 "no-go area" policy, which partially or entirely restricted foreigners, particularly refugees, from entering over twenty provinces. Authorities ordered some 120,000 registered Afghan and Iraqi refugees living in specific regions to either move to designated areas – mostly camps – or repatriate. It noted that by May 2008, the government had restricted 25 provinces and required 180,000 to move. The penalty for non-compliance was deportation. It also stated that the authorities also expelled refugees caught outside their areas of registration without a laissez-passer.10 Recent information provided by the applicant from UNHCR Iran also indicates that permission must be obtained for any travel outside the province of registration. Further, in a recent statement provided to the IAA by the applicant in August 2022 he acknowledged that they cannot leave Qom and, if they want to leave Qom to travel to another city, they need a permit from the police which would state how many days they could stay in that city. Even if his family did not seek permission to relocate, they nevertheless would have been required to travel to Khuzestan every year since 2003 to re-register and obtain a new white card putting themselves at risk of getting caught for living in a different province.
63.During the PV interview, the delegate also noted to the applicant that stateless people have difficulties finding housing in Iran and yet the applicant claims that his family did not get any written permission to move and were able to find rental accommodation in Qom. In response applicant said he does not know any of these things and how this happened. I do not accept that, based on his claimed history, he would not have been aware of how this could have happened. He was approximately 18 years old when his family moved to Qom and well into adulthood when he left Iran.
64.I am also concerned by some of the differing formats on the cards provided. Some cards have a date of issue whilst others only have a date of expiry. For example, the father has a card which only notes an expiry of 20 March 2011 but then he has another a card (purportedly issued the following year) which only notes a date of issue as 21 June 2011 several months after the expiry of the other card and with no date of expiry. Further, the brother has a card that has no date of issue and no date of expiry but only states that it will expire one year after the date of issue. The card for the father issued in June 2011, oddly has three sides to it. It is submitted the translator of the recent cards submitted to the IAA in August 2022, advised that it was common for Iranian identity documents not to include a date of issue. I give this assertion no weight in my assessment as it is not clear on what basis the translator is qualified to make such a claim and no country information has been provided to support his assertion.
65.The photo image of the applicant on the 2001 white card is the same photo as that on the white card which expired in 2011. If these cards were to be renewed annually, as per the country information before me and the applicant’s own evidence, then the latter card was issued in 2010 when the applicant was approximately 25 years old and yet it has the same photo image as the card issued nine years earlier when the applicant was a teenager. The brother’s card that expired in 2011 also includes a photo of him where he appears to be a teenager although he was in his twenties at the time. While the brother’s card issued two years later in 2012 includes a markedly different new photo of him as an adult. During the PV interview the applicant said that the Iranian authorities did not change the photo on the cards for many years. He has not provided any country information in support of this claim. I also find it difficult to believe that a primary identification document would not include an updated photo over such a long period of time and particularly as the applicant had transitioned to adulthood by the time of the issuance of the card which expired in 2011. Country information indicates photos on other Iranian identity documents need to be updated periodically.11
66.The applicant has not provided any identification cards for his brother issued between 2017 and 2020. In his new statement to the IAA, he claimed that his brother said that the Iranian authorities take his money when he applies for a new card, but they do not always issue a new card but advise him that he can keep using his old card and that is why he and many others do not have new identification cards for each year. The applicant has not provided any country information to corroborate this claim and the country information before me does not indicate that this is a practice of the Iranian government.
67.Also provided recently to the IAA was an identification card purportedly issued to the applicant’s mother. The translation indicates she was born in Kut, Iraq and is an Iraqi national and that it was issued in Ahwaz. The issue date is illegible according to the translation provided. In his recent statement to the IAA, the applicant claimed it is the most recent identity document belonging to his mother, and it was issued around 20 years ago. It appears to be in the same format as the green cards provided for the other family members. In the above statement the applicant also said that his mother recently told him that she does not have any identity documents because she mainly stays at home and does not work for an employer and, unlike his father or bother, she does not require an identity document to travel or work as she sews clothes (at home). Country information provided by the applicant from UNHCR Iran states that the entitlements conferred by Hoviat status include access to education, health services, health insurance, and employment within predefined fields, if a work permit is obtained. Another source provided by the applicant also stated that the cards enable refugees to access basic services and serve as a safeguard against arrest and deportation.12 Even if his mother worked from home, given the protection and benefits associated with these cards, including access to health insurance and services and that it is the only purported identification document held by refugees in Iran, I do not find the mother’s purported explanation for not having one for the last twenty years to be convincing.
68.In his new statement to the IAA, the applicant claims that his brother recently told him that he is not going to apply for a new card in 2022 because there is no point because the authorities will take his money and he has no assurance that he will get a new identity card or that it will make his life better. As noted, no corroborating country information has been provided to support the claim that his brother will not get a new card if he applies for a new one, subject to having abided by the requisite conditions. Further, the country information above indicates a number of important benefits to cardholders, including access to health insurance. I find it difficult to believe his brother would not attempt to renew his card for the reasons he has given particularly when, on the applicant’s account, he has done so every other year up and until 2021.
69.On the evidence before me I accept that that the green cards issued to the family prior to 2001 are genuine. Being granted a green card corresponds with the applicant’s credible account of having been deported to Iran from Iraq in 1985 and the country information before me which indicates that these deportees were issued green cards by the Iranian authorities from the 1980s until the end of 2001. I also find the card provided for the mother is a green card as it is in the same format as the green cards provided for the other family members.
70.For reasons already noted, I am not satisfied of the genuineness of the other refugee registration cards provided by the applicant for himself and his family members which were purportedly issued from 2001 or which are undated.
…
FN 8:DFAT, 'DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', 3 December 2014, CIS2F827D91722; DFAT, ‘'Faili Kurds', 19 March 2010, CX241170
FN 9:DFAT, ‘DFAT Country Information Report Iran’, 14 April 2020, 20200414083132
FN 10:United States Committee for Refugees and Immigrants, ‘World Refugee Survey 2008 – Iran’, 19 June 2008, CX202671
FN 11:DFAT, 'DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', 3 December 2014, CIS2F827D91722
FN 12:United States Department of State (USDOS), 'Country Reports on Human Rights Practices for 2021 - Iran', 12 April 2022, 20220413110714
In his written submissions filed on 13 January 2023, the applicant said in relation to this ground:
40In evidence before the Authority was documents in the form of Iranian Identification Cards. These cards were evidence to show that the identified card holder was a registered refugee in Iran at the time that it was issued, and gave the card holder certain rights in Iran as a noncitizen.
41Prior to the Authority’s assessment, and before the delegate of the Minister, was a number of identification documents. The Department’s Document Examination Unit (DEU), the Department’s forensic experts used to determine the genuineness of documents, had previously been engaged to assess these documents. The DEU made a neutral finding as to the genuineness of the documents, insofar as it could not confirm that the documents were genuine, nor could it confirm that the documents were fake. The Applicant’s position in relation to findings by the DEU about the genuineness of the previously submitted identity documents were firmly before the Authority.32 It is noted that an unredacted version of the DEU report regarding an Iranian White Card (number: 100436400319) reports that the examination result is inconclusive due to the “generation of the document”, however the report states that the document is consistent with the Iranian White Card format.
42On 18 August 2022, the Applicant provided to the Authority a further six identity documents from his family members which were not previously before the Department or IAA.33 These documents included documents pertaining to, and including translations of:
a) Applicant’s father - …;
i.Iranian Identification Card for Foreign Immigrants dated 21 June 2011; 34
ii.Iranian Identification Card for Foreign Immigrants dated 20 June 2012; 35
b) Applicant’s mother - …;
i.Iranian Identification Card for Foreign Immigrants – date of issue illegible; 36
c) Applicant’s brother - …;
i.Iranian Identification Card for Foreign Immigrants dated 20 June 2012;37
ii.Iranian Identification Card for Foreign Immigrants – date of issue illegible; 38 and
iii.Temporary Residence Card for Foreign Immigrants – no date of issue; expires on 21 June 2022. 39
43It is noted that the quality of the replicated documents is higher than the documents previously provided.40 The Applicant’s position and expectations in relation to the new documents was before the Authority.41
44The Authority did not accept that these documents were genuine for reasons including:
a)discrepancies in the formatting, as some of the identity documents have a date of issue and others only have a date of expiry;42
b)the Applicant referred to his 2001 Iranian Identification Card for refugees as a “white card”, yet country information indicates that only green cards were available at that time;43
c)the Applicant’s mother and brother had been in Qom since 2003, yet their identity documents since 2010 stated that they were issued in Khuzestan or permitted to travel or reside in Khuzestan;44
d)the Applicant’s brother did not provide any identity documents from 2017 to 2020;45 and
e)the IAA did not accept that the Applicant’s mother did not renew her identity card for over 20 years despite the explanation provided by the Applicant.46
45The fact that the Authority did not accept the documents as genuine contributed in a significant way to the ultimate finding that the Applicant was not a stateless person,47 an argument central to the matter. Had the Authority found that the cards were genuine, then this would have been material to the Authority’s decision.
46At no time were these documents provided to the Department’s specialised DEU for assessment. The Authority clearly attempted to form its own assessment as to the genuineness of the documents, notwithstanding that it personally does not fulfill any criteria as an expert witness, and does not rely upon any third party expert source to support their findings.48 This shows that the Authority was concerned about the genuineness of the documents.
47The only reasonable way for the Authority to determine the genuineness of the Applicant’s identity documents would have been to provide them to the Department’s DEU for assessment. Not providing the documents to the DEU is inconsistent with the previous procedure followed by the delegate of the Minister, and it was reasonably supposed by the Applicant that such course of action would take place, in particular, to validate the quality of the documents, and to rebut any position that the identity documents previously provided were not genuine.
48In Minister forImmigration and Border Protection v CRY16,49 Minister for Immigration and Border Protection v DZU16,50 and DPI17 v Minister for Home Affairs,51 the Full Court of the Federal Court of Australia found jurisdictional error for legally unreasonable failures to exercise the power under s 473DC. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the DEU was likely to have, expertise in determining the genuineness of the new identity documents.
49It was unreasonable for the IAA not to exercise its discretion under s 473DC to provide the documents to the DEU or another body with the relevant expertise to assess the identity documents, particularly given the materiality to the Applicant’s case, and therefore the decision is affected by jurisdictional error.
FN 32: CB 970-972.
FN 33: CB 313.
FN 34: CB 319-322.
FN 35: CB 323-325.
FN 36: CB 326-327.
FN 37: CB 328-332.
FN 38: CB 333-335.
FN 39: CB 336-338.
FN 40: Compare quality of documents at CB 319-338 with documents at CB 235-247.
FN 41: CB 313-314.
FN 42: CB 1242 [64].
FN 43: CB 1241 [60].
FN 44: CB 1241 [62]-[63].
FN 45: CB 1243 [66].
FN 46: CB 1243 [67].
FN 47: CB 1247-1247 [83].
FN 48: CB 1242 [64].
FN 49: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475.
FN 50: Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526.
FN 51: DPI17 v Minister for Home Affairs [2019] 366 ALR 665.
The Minister said in relation to this ground that the Authority was under no obligation to send the identity documents to the Document Examination Unit and it was entitled to form its own assessment of the genuineness of the documents. Those submissions are undoubtedly correct.
The Authority does not require expert evidence to form a view about the genuineness of documents. The reasons relied on by the Authority to conclude that some of the identity cards were not genuine were based on matters that were entirely within the purview of the Authority. Those reasons included that the applicant’s mother had not had an identity card for 20 years, even though identity cards would have benefited her in various ways, and the photo on the applicant’s 2001 identity card was the same as the photo on his 2011 identity card, even though identity cards had to be renewed annually.
It is a matter for the Authority to decide whether to send documents to the Document Examination Unit, subject to that decision being legally reasonable. In the present case, the Authority’s decision not to send the identity cards to the Document Examination Unit was legally reasonable. That is because the Authority had ample reason on its own to conclude that the identity documents were not genuine.
Moreover, the Document Examination Unit had been unable to say whether the identity cards previously provided by the applicant were genuine. The Authority had no reason to expect a different result if other identity cards were sent to the Document Examination Unit.
Moreover, the documents provided by the applicant appear to have been photocopies. The Document Examination Unit described the documents previously provided to it as “non-original documents” (CB212 and CB250), which presumably means photocopies. In paragraph 52 of its reasons for decision, the Authority referred to the applicant having provided a copy of a card and in paragraph 56 the Authority referred to the applicant’s family sending a copy of an old card. To the extent that the documents provided to the Authority were also photocopies, it is likely that the Document Examination Unit would not have been able to provide any useful information. This also supports the view that it was not unreasonable for the Authority to not seek the opinion of the Document Examination Unit.
The Minister also said that this ground could not lead to the Authority’s third decision being set aside, because the genuineness of the identity cards concerned the question of statelessness, and the Authority had a separate strand of reasoning that assumed the applicant was stateless. I accept that submission.
Ground 3 also fails.
GROUND 4
The fourth ground of review in the application is:
The Second Respondent was irrational and illogical in making the finding that, if returned to Iran, the Applicant could work in the informal job market in manual work.
Particulars
AThe Second Respondent accepted that the Applicant had a chronic back injury that occurred in 2020, and has been treated with medication and physiotherapy, and has not resolved, per decision at [100]-[101].
BThe Second Respondent found that the Applicant’s health issues will not prevent him from obtaining informal (including some manual) work in Iran, per decision at [139] & [150].
CIt was irrational and illogical for the Second Respondent to come to this conclusion, and shows that the Second Respondent did not engage in an active intellectual process in coming to this decision, and did not give the issue proper, genuine and realistic consideration, as required, per Singh v Minister for Home Affairs (2019) 267 FCR 200.
The applicant somewhat misstated the position in particular A. In fact, the applicant had been advised to undertake a physiotherapy treatment program but he had not started it as at the time of the latest medical report. Consequently, there was no medical evidence about whether the physiotherapy treatment program had resolved the applicant’s back issue as at the time of the Authority’s decision.
The relevant passages from the Authority's reasons for decision are as follows:
35.In his new statement the applicant claims that his mental health had been adversely impacted since 2017 for a number of reasons and provides further updated information in that regard. He also states that he continues to suffer pain from a back injury, and he will be unable to undertake manual work in Iran. These are new claims. Also attached to the submissions were three reports from the International Health and Medical Services (IHMS), one dated on 18 January 2022, one dated 18 February 2022 and the other dated 26 July 2022. They outline the applicant’s health issues for which he is receiving treatment in immigration detention. These documents are also new information. It is submitted that without access to this treatment, the applicant’s mental and physical health will deteriorate, and he will face serious harm, including death and that his profile, including his statelessness, will prevent him from accessing appropriate healthcare. It is also submitted it is further evidence he will be unable to undertake manual labour and will not be able to find employment and subsist in Iran. In so far as these claims relate to the above new information about his ongoing health issues, I am satisfied they are new information. The applicant’s new claims and the supporting medical reports post-date the delegate’s decision and I am satisfied they meet s.473DD(b)(i). I am also satisfied they are credible personal information about the applicant’s health which were not known to the delegate that may have affected consideration of the applicant’s claims. I am satisfied s.473DD(b)(ii) of the Act is met. Having regard to this, I am satisfied there are exceptional circumstances to justify considering this new information.
…
100.In his recent statement to the IAA the applicant claimed that, from around the end of 2020, he had been experiencing chronic lower back pain since he slipped and fell whilst in immigration detention. He claims he is not sure how long it will take for his back to heal or if it will ever fully heal and it might be something he needs to live with for the rest of his life.
101.Provided in support of these claims was a medical report from IHMS regarding a General Practitioner Consultation held with the applicant on 18 January 2022. It noted that the applicant had complained of pain in his Coccyx region since falling on his buttock last year while running on slippery floor. He was also complaining of pain in his left hand after falling in the shower. He was diagnosed with ‘Coxitis (disorder)’ and ‘Fracture of metacarpal bone (disorder)’ and was referred for an X-ray. It appears from this document that he suffered this injury in 2021 not 2020. The applicant claims that the nurse told him he had to keep his feet up. He claimed he cannot do any manual labour jobs.
102.The July 2022 IHMS report noted that the applicant had ongoing back pain for which he had been prescribed anti-inflammatory medication after consulting with a GP in February 2022. It noted that, on 8 July 2022, the applicant had reported low back pain for which he was referred to attend for physiotherapy and on 18 July 2022 a physiotherapist provided a treatment program for the applicant. However, it noted he had not yet commenced the program. In his recent statement to the IAA the applicant claimed he started attending physiotherapy in July 2022. The report also noted that the applicant had declined a referral for an x-ray for his lefthand injury due to quarantine requirements on return and had since not reported any issues or concerns regarding this injury since February 2022 and the IHMS considered this health issue to be resolved. (emphasis added)
103.I accept the applicant suffered a back injury whilst in immigration detention and has been prescribed medication and started attending physiotherapy in July 2022. I also accept he complained of pain in his left-hand in early 2022 and an x-ray revealed a fracture to his finger but has not since raised any further concerns about it and IHMS considers this issue to be resolved.
…
116.… It is also submitted that the applicant cannot do any manual labour jobs due to his back injury and if he returns to Iran, he will not be able to find work because stateless Faili Kurds can only find manual labour work.
117.I have not accepted the applicant is stateless. I do not accept he will be restricted to finding only manual labour work in Iran or will be prevented from accessing relevant health care on this basis.
…
139.Assuming his status in Iran is as claimed, the applicant would be unable to obtain Iranian identity documents, and not receive the same benefits, rights or services normally given to citizens or registered refugees. Nevertheless, having considered the country information before me, I am not satisfied there is a real chance that as an unregistered stateless Faili Kurd he will be unable to access informal work, accommodation or paid medical services in Iran from the Iranian authorities or any other group or person. Although DFAT has stated that Faili Kurds are frequently employed in low-paying manual labour it does not suggest that this is always the case. In Australia, the applicant has accessed medication for his depression and insomnia and OSTP injections for his substance abuse. The applicant has also accessed medication and physiotherapy for a back injury. I am not satisfied there is a real chance he will be prevented from accessing treatment for these issues in Iran if needed. I accept the applicant has suffered a previous fracture to his finger whilst in detention but the most recent IHMS report from July 2022 indicated he had not raised any recent concerns about it, and it had been considered resolved. The medical evidence provided by the applicant does not indicate he is unfit for work due to his mental and/or physical health issues. On the evidence before me, I am not satisfied the applicant’s health issues and status will prevent him from finding informal (including some manual) work in Iran. I accept his father has passed away, but I note that his mother and brother remain in living in Qom. I am not satisfied there is a real chance the applicant, as an unregistered stateless Faili Kurd refugee, will experience significant economic hardship that threaten his capacity to subsist or will be denied access to basic services or the capacity to earn a livelihood, or will face any other harm that may be considered serious harm. (emphasis added)
…
150.As an unregistered stateless Faili Kurd refugee, the applicant will not be able to obtain Iranian identity documents or access the same benefits, rights or services normally given to citizens or registered refugees. Nevertheless, having considered the country information before me, I am not satisfied there is a real risk he will be denied access to paid medical services, accommodation, or informal work as an unregistered stateless Faili Kurd refugee. The applicant has accessed medication and physiotherapy for a back injury sustained in Australia, and medication to treat his diagnosed depression, insomnia and substance abuse. I am not satisfied there is a real risk he will be prevented from accessing paid treatment for his health issues in Iran if needed. He also suffered a fractured finger whilst in detention, but the most recent medical reports provided by the applicant dated in July 2022 indicate he had not raised any recent concerns about it, and it was considered resolved. The medical evidence provided by the applicant does not indicate he is unfit for work due to his health issues. I am not satisfied his health issues or status will prevent him from finding informal work in Iran. His mother and brother also remain residing in Qom where he previously resided. For these reasons I am not satisfied he will face a real risk of significant harm. I am not satisfied he will face a real risk of being arbitrarily deprived of his life, being subject to the death penalty or torture as defined. I am also not satisfied there is a real risk he will be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment as defined.
In his written submissions filed on 13 January 2023, the applicant said in relation to this ground:
50The Applicant respectfully submits the Authority’s decision is affected by jurisdictional error in that, in purporting to make an assessment of whether the Applicant will be able to exist if returned to Iran as an undocumented refugee, it found that despite his back injury, the Applicant would be able to complete informal, including manual, work. In doing so the Authority was irrational and illogical in its reasoning, which no rational or logical decision maker could arrive at on the same evidence.
51In its decision, the Authority accepted the Applicant’s evidence regarding his depression, insomnia, back injury and participation in an Opioid Substitution Treatment Program in 2022.52 The chronic back injury occurred in 2020,53 and required medication from February 2022, and physiotherapy intervention commencing July 2022.54
52The Authority then made the finding that the Applicant’s health issues will not prevent him from obtaining “informal (including some manual) work in Iran”.55 This was also addressed in the complementary protection assessment.56
53The Authority did not provide evident and intelligible justification for this reasoning.57 It does not posit information before it of any of the types of work that the Applicant could possibly complete with a chronic back condition, nor does it consider what limitations on work that might exist, given the Applicant’s injury. The finding is erroneous and absurd.
54If a relevant consideration has been omitted from the Authority’s reasons, then it can be inferred that it was not considered.58 Further, where the Authority is bound with the task of making a finding, and does not give a matter “proper, genuine and realistic consideration” or engage in an “active intellectual process”, then it falls into error.59
55It is clear that the Authority did not give the issue of the Applicant’s future employment with a chronic back injury proper, genuine or realistic consideration, nor did it engage in an active intellectual process in its determination.
56As such, the Authority has made an illogical and irrational finding, and the decision is affected by jurisdictional error.
FN 52:CB 1250-1251 [96]-[105].
FN 53:CB 1250 [100].
FN 54:CB 1251 [102].
FN 55:CB 1258 [139].
FN 56:CB 1260 [150].
FN 57:Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
FN 58:Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at 75 [33]-[34] (Full Court).
FN 59:Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30], citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352.
In his written submissions filed on 27 January 2023, the Minister said in relation to this ground:
37.The applicant’s fourth ground is to the effect that it was irrational and illogical for the IAA to find the applicant would be able to complete informal (including some manual) work.
38.“Irrational” or “illogical” implies that no reasonable person could reason in such a way.24 As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS25 at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
39.“The stringency of the threshold arises in the need for the decision-maker’s reasoning to be capable, objectively, of being described as irrational or illogical.” 26
40.It is not the case that no reasonable person could reason in the way the IAA did and conclude the applicant would be able to complete informal (including some manual) work. The IAA’s finding was open to it on the evidence.
41.The IAA observed that in “practice, many unregistered Faili Kurds in Iran have informal access to employment which is tolerated by authorities” and that “DFAT has been told that Faili Kurds are frequently employed in low-paying manual labour” (CB 1257 [137]). The IAA considered the country information before him, and was not satisfied that there was a real chance that as an unregistered stateless Faili Kurd, the applicant will be unable to access informal work (CB 1257 [139]).
42.The IAA observed that the applicant had “accessed medication and physiotherapy for a back injury” and found “the medical evidence provided by the applicant does not indicate he is unfit for work due to his mental and/or physical health issues.” (CB 1257 [139]). In the same paragraph the IAA concluded that it was not satisfied, on the evidence before it, the applicant’s health issues and status will prevent him from finding informal (including some manual) work in Iran (CB 1257 [139]).
43.It was not necessary, in order to discharge its statutory function, for the IAA to posit any of the types of work the applicant could possibly complete, or what limitations on work that might exist, given the applicant’s injury.27
44.This ground should be dismissed.
FN 24:AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [26] (Mortimer J).
FN 25:(2010) 240 CLR 611.
FN 26:AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [25] (Mortimer J).
FN 27:Applicant’s submissions dated 13 January 2023 at [53].
I accept the Minister’s submissions on this ground. I do not consider that the Authority’s conclusion that:
On the evidence before me, I am not satisfied the applicant’s health issues and status will prevent him from finding informal (including some manual) work in Iran.
is illogical or irrational. The Authority specifically noted at paragraph 139 of its reasons for decision that the medical evidence before it did not indicate that the applicant was unfit for work. There was no reason for the Authority to assume that the applicant’s back injury at some time in 2021 would have made him unfit for work in September 2022, when it made its decision.
The medical evidence was that the applicant first complained to medical staff of pain in his coccyx on 18 January 2022, in the context of a complaint about pain in the little finger of his left hand starting three weeks previously (CB733). He said that he hurt his coccyx while running on a slippery floor. He said that had happened the previous year, that is, in 2021, but was unsure when. Because the applicant did not seek immediate medical attention, it was open to the Authority to consider that the applicant’s back injury was at the lower end of the spectrum.
Moreover, the medical evidence showed that the applicant had been recommended to undertake a physiotherapy treatment program but that he had not commenced it at the time of the latest medical report (CB739). It was therefore open to the Authority to consider that physiotherapy might well resolve the issue.
It is also the case that not all manual work puts stress on the coccyx, for example, making coffee, being a security guard and so on. The Authority recognised this, by saying that it was not satisfied that the applicant’s health issues would prevent him from finding “some manual” work, which seems to have meant some types of manual work.
Significantly, the Authority did not say that the applicant could do manual work. The Authority said that, on the evidence, it was not satisfied that the applicant’s health issues would prevent him from finding informal, including some manual, work. Obviously, it was for the applicant to satisfy the Authority that he would unable to find work, and he did not do so.
In relation to informal work, the Authority said at paragraph 74 of its reasons for decision that:
… Country information before me also notes that in practice, many Faili Kurds in Iran—both registered and unregistered—have informal access to employment which is normally tolerated by authorities. In 2014 DFAT noted that some Faili Kurds are self-employed while others might find Iranian employers prepared to disregard the law and Faili Kurds are frequently employed in low-paying manual labour. It does not indicate they struggle to find work because they are considered Iraqi and assessed that societal discrimination against Faili Kurds is not widespread. …
(footnote omitted)
The Authority’s conclusion that, on the evidence, it was not satisfied that the applicant’s health issues would prevent him from finding informal, including some manual, work, included the possibility of the applicant doing non-manual informal work. That possibility is available on the evidence.
For all of these reasons, I am not satisfied that the impugned conclusion was irrational or illogical.
GROUND 5
The fifth ground of review in the application filed on 28 October 2022, amended on 13 January 2023 and further amended on 2 February 2023 is:
The Second Respondent erred by failing to consider relevant information.
Particulars
a.The Department’s decision dated 19 October 2017 referred to a Department of Foreign Affairs and Trade country information report (DFAT Report) dated 21 April 2016 at footnote 28.
b.The DFAT Report outlined specific persecution by the Iranian government of unregistered refugees.
c. The Second Respondent erred by failing to consider the DFAT Report.
In his further written submissions filed on 10 February 2023, the applicant said in relation to this ground:
2In the decision of the IAA, there is a clear failure to consider that Iran will persecute the Applicant in the form of either deporting the Applicant (to Iraq, or elsewhere) upon arrival, or detaining the Applicant upon arrival, and that persecution would occur because the Applicant is an undocumented stateless person.
3This information regarding whether Iran accepts undocumented stateless persons was before the IAA, as the DFAT Country Information Report dated 21 April 2016 (“2016 DFAT Report”),4 had been considered by the Delegate in the original decision.5
4The 2016 DFAT Report clearly states:
“5.31The Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means”.6
5The 2016 DFAT Report was superseded by the 2020 DFAT Report,7 which is silent as to the treatment of the Iranian Government towards former resident unregistered refugees returning to Iran.8 However, the only information before the IAA relating to the re-entry of unregistered refugees was in the 2016 DFAT Report.
6The Second Respondent purports to engage with this issue in its decision, stating “in the event the applicant was able to return to Iran as an unregistered stateless Faili Kurd, country information before me indicates that unregistered stateless Faili Kurds theoretically risk deportation, though in practice this is rarely carried out”.9 No reference is made to what country information was relied upon to make this statement, and it is a statement that has no evidence to support it.
7The Second Respondent then makes a finding of fact that is factually incorrect, stating “[t]he country information cited earlier on returning asylum seekers refers to the treatment of returning Iranian citizens but there is no information to indicate that the treatment would be different for a stateless unregistered Faili Kurd”. This statement is incorrect because the 2016 DFAT Report was before the Second Respondent, and the 2016 DFAT Report distinguishes Iranian citizens from unregistered refugees.
8Further, such reasoning is illogical or unreasonable; citizens and non-citizens of Iran clearly have a different bundle of rights, and this was stipulated throughout the material before the Second Respondent.
9It is therefore the Applicant’s respectful submission, when the Second Respondent failed to consider the effect of the Applicant’s purported statelessness on the ability to return the Applicant to Iran, and the likely consequence of such action, the Second Respondent’s decision is effected (sic) by further jurisdictional error. As such, materiality in relation to Grounds 1, 2, and 3 is made out.
FN 4:Annexure RAS-1 to the Affidavit of Rachel Anjali Saravanamuthu sworn on 1 February 2023 (Annexure RAS-1).
FN 5:CB 278.
FN 6:Annexure RAS-1, p 28 [5.31].
FN 7:CB 753-825.
FN 8:See, for comparison, CB 821 for the same section on “Exit and Entry Procedures”.
FN 9:CB 1212 [135].
Ground 5 concerns the Authority’s alternative and separate strand of reasoning based on the applicant in fact being a stateless Faili Kurd. The Authority found in paragraph 134 of its reasons for decision that:
The country information indicates that unregistered refugees who leave Iran are not allowed to return through regular means. …
The Authority footnoted that conclusion with a reference to a report from the Department of Foreign Affairs and Trade (“DFAT”) dated 29 November 2013. The 2013 DFAT report stated:
5.22The Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means.
That paragraph is exactly the same as paragraph 5.31 of the DFAT report dated 21 April 2016, which the applicant said the Authority did not consider. Clearly, the Authority did consider that paragraph. The Authority accepted it and applied it.
The Authority continued in paragraph 134 of its reasons for decision to say:
… If the applicant had left Iran as an unregistered refugee, I do not consider his inability to return amounts to persecution as the same would apply to any non-Iranian citizen with no legal right to enter Iran.
Similarly, at paragraph 148, the Authority considered complementary protection, saying:
As an undocumented refugee, the applicant will likely not be able to return to Iran, but I am not satisfied this amounts to significant harm as it does not amount to the arbitrary deprivation of his life, being subject to the death penalty or torture as defined. I am also not satisfied it has the requisite element of intention to cause pain or suffering, severe pain or suffering or extreme humiliation such as to amount to cruel or inhuman or degrading treatment or punishment as defined.
The applicant did not challenge the Authority’s findings that being unable to return to Iran would not constitute serious or significant harm. If the applicant in fact did not return to Iran, because he could not do so by regular means, there would be no question of Iran deporting him or otherwise harming him. That would seem to dispose of ground 5.
However, perhaps from an abundance of caution, the Authority went on to consider what would happen if the applicant, as an unregistered Faili Kurd, did manage to return to Iran through some irregular means.
The applicant said in paragraph 6 of his further submissions that the Authority had no evidence for its statement in paragraph 135 of its reasons for decision that:
In the event the applicant was able to return to Iran as an unregistered stateless Faili Kurd, country information before me indicates that unregistered stateless Faili Kurds theoretically risk deportation, though in practice this is rarely carried out. …
However, footnote 29, which appears at the end of paragraph 135 of the Authority’s reasons for decision, refers to the DFAT Thematic Information Report – Faili Kurds in Iraq and Iran, 3 December 2014. That report was referenced in footnote 17 of the applicant’s submissions dated 13 September 2017 to the delegate: CB 228. The applicant’s submissions to the delegate summarised the 2014 DFAT report on the relevant point as follows:
… DFAT has also advised that unregistered Faili Kurds theoretically risk deportation, though in practice this was rarely carried out. …
Contrary to the applicant’s contention in paragraph 6 of his further submissions, the Authority did have evidence to support its statement that “unregistered stateless Faili Kurds theoretically risk deportation, though in practice this is rarely carried out”. That evidence was provided by the applicant.
The applicant then argued that the Authority made a factually incorrect finding at paragraph 136 of its reasons for decision that:
The country information cited earlier on returning asylum seekers refers to the treatment of returning Iranian citizens but there is no information to indicate that the treatment would be different for a stateless unregistered Faili Kurd. …
The applicant said that statement was incorrect because the 2016 DFAT report was before the Authority, and the 2016 DFAT report distinguished returning Iranian citizens from returning unregistered refugees. The only aspect of the 2016 DFAT report that the applicant referred to, and the only aspect of that report that seems to be relevant to this issue, is the passage mentioned above at paragraph 5.31 of the 2016 DFAT report which is:
The Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means.
The Authority dealt with that, as discussed above, and then went on to consider what would happen if the applicant, somehow, managed to return to Iran.
When the Authority said in paragraph 136 of its reasons for decision that “there is no information to indicate that the treatment would be different for a stateless unregistered Faili Kurd”, it meant there was no information in the country information it had cited earlier. The Authority described that information at paragraphs 126 to 129 of its reasons for decision. The information included the 2020 DFAT report, as well as some 2020 reports from Canada and Denmark. Consequently, the Authority did not make the factual error alleged. Of course, within limits, factual errors are not jurisdictional errors. Again, within limits, it is for the Authority to decide what country information to rely on, though preferably the most recent.
For these reasons, ground 5 fails.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed with costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 24 May 2023
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