CRS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 189
•28 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 189
File number(s): MLG 2025 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 28 October 2021 Catchwords: MIGRATION – application for judicial review of decision of the Immigration Assessment Authority – application for protection visa – apprehended bias – where Authority was provided with Court decisions that contained information regarding criminal charge against applicant– where Authority expressly disavowed reliance on the information – where Authority invited applicant to comment on the information – whether fair-minded lay observer might reasonably apprehend bias – whether Authority erred by rejecting applicant’s claim of statelessness – application allowed Legislation: Migration Act 1958 (Cth), ss.65, 473, 476 Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109
BMT19 v Minister for Immigration [2020] FCCA 3397
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76
CNY17 v Minister for Immigration [2021] FCCA 1141
FSG17 v Minister for Home Affairs [2019] FCCA 2050
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
Minister for Home Affairs v Omar (2019) 272 FCR 589
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submission/s: 28 October 2021 Date of hearing: 13 September 2021 Place: Melbourne Counsel for the Applicant Mr Bromberg Solicitor for the Applicant Asylum Seeker Resource Centre Counsel for the First and Second Respondent
Mr Hill
Solicitor for the First and Second Respondent
Australian Government Solicitor
ORDERS
MLG 2025 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: CRS20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue removing the record of the Immigration Assessment Authority decision made on 25 May 2020 into this Court for the purpose of quashing it.
2.A writ of mandamus issue requiring a differently constituted Immigration Assessment Authority to determine according to law the review referred to it.
3.The First Respondent pay the Applicant’s costs in the amount of $7,853.
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 Symons
INTRODUCTION
The applicant lodged an application in this Court on 12 June 2020 seeking judicial review of a 25 May 2020 decision of the Immigration Assessment Authority (‘IAA’) pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘Act’). The IAA affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Minister’) not to grant the applicant a protection visa. As will become apparent, it is necessary to distinguish between this decision of the IAA (“Second IAA Decision”) and an earlier decision of the IAA that was the subject of an ultimately successful judicial review.
The applicant seeks to challenge the Second IAA Decision on three grounds that are identified in an amended application for judicial review filed on 30 August 2021. For the reasons that follow, I have determined that the application (as amended) should be allowed.
BACKGROUND
The applicant was born in Iraq and claims to be a stateless Faili Kurd. He arrived in Australia as an unauthorised maritime arrival on 22 September 2012.
On 31 March 2016, the applicant applied for a safe haven enterprise visa (a form of protection visa).
On 19 October 2017, a delegate of the Minister refused to grant the applicant a protection visa.
On 27 November 2017, the IAA affirmed the decision to refuse to grant the applicant a protection visa (‘First IAA decision’)
On 22 August 2019, this Court dismissed an application for review of the First IAA decision: FSG17 v Minister for Home Affairs [2019] FCCA 2050 (‘FSG17 (FCC)’). On appeal, the Full Court of the Federal Court set aside the First IAA decision and remitted the matter back to the IAA for re-determination on 11 March 2020: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 (‘FSG17 (FC)’). The matter was remitted because the Full Court found that the First IAA decision was infected by jurisdictional error, including apprehended bias.
On 25 May 2020, upon remittal, the IAA (differently constituted) again affirmed the decision to refuse to grant the applicant a protection visa, this being the Second IAA decision.
On 12 June 2020, the applicant applied in this Court for review of the Second IAA decision.
As will become apparent, the findings made, and the approach adopted by the Full Court in FSG17 (FC) assume a special significance in the grounds framed by the applicant. The applicant contends that the Full Court provided guidance that effectively was ignored, and identified errors that were, in substance, repeated when the matter returned to the IAA.
APPLICATION GROUND 1: APPREHENDED BIAS
Applicant’s submissions
By application ground 1, the applicant contends that the Second IAA decision involved jurisdictional error because its processes gave rise to a reasonable apprehension of bias by reason that it received and considered the judgments in FSG17 (FCC) and FSG17( FC) (together, ‘the Court decisions’) . The applicant submits that both of these judgments contained details of charges of ‘persistent sexual abuse of a child’ which was of a highly prejudicial nature, irrelevant to the matters upon which the IAA was required to adjudicate, and whose prejudicial effect was incapable of being ameliorated (‘the irrelevant information’).
The applicant, by reference to the two-step test identified in decisions such as CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (‘CNY17’), submits that in this case, a fair-minded lay observer might have apprehended that the irrelevant information received and considered by the IAA might have subconsciously encouraged the IAA to form the view that the applicant is not a person to whom the benefits of a visa should be extended.
The applicant submits that the irrelevant information which was before the IAA was substantially the same information that the Full Court found had infected the First IAA decision. This information was identified by the Full Court at [14] of FSG17 (FC) as recording details including that:
(a)The applicant was charged under s.66EA of the Crimes Act 1900 (NSW) with persistent sexual abuse of a child.
(b)The sexual relationship occurred over a three-year period from 1 August 2013 until 11 March 2016.
(c)The applicant met the victim at a train station by arrangement when she was 13 years old and a ward of the State.
(d)The applicant knew that the victim was under 16 years of age for most of the period of the sexual relationship.
The applicant observed that in FSG17 (FC), the Full Court had accepted the submission that this information was of a type which the ‘informed lay person’ might reasonably apprehend would pierce the subconscious of a decision maker because it possessed certain characteristics, including that it concerned sexual abuse, related to offending over a period of three years, and pertained to a child victim.
The applicant submitted that the Court decisions contained additional information, also prejudicial in nature, which was not before the IAA in the First IAA decision. That additional information included confirmation that: (i) the applicant was refused bail at a hearing on 23 September 2016; and (ii) the maximum penalty for the offence of ‘persistent sexual abuse of a child’, with which the applicant was charged, is life imprisonment. The applicant made the submission that this information exaggerated the already prejudicial impact of the information identified at [13] above.
The applicant acknowledged that at [10] (CB 892), the IAA had ‘expressly disregarded’ the irrelevant information, with the explanation that the information was irrelevant to the ‘applicant’s credibility, his claims for protection and my assessment’. However, the applicant submitted that this explicit disavowal of the irrelevant information did not remedy its effect in the mind of a fair-minded lay observer. In this regard, the applicant referred to the judgment in FSG17 (FC) at [42] and the conclusion that notwithstanding the (First) IAA had consciously endeavoured to disregard the information, the putative observer might reasonably consider that the information was of a kind that was so prejudicial, that it might subconsciously affect the IAA’s approach to the decision.
The applicant made the submission that the only distinguishing feature between this present case and the case that was considered by the Full Court, was that here the IAA made what was characterised as a ‘perfunctory effort’ to provide the applicant with an opportunity to comment on the IAA’s process of handling the irrelevant information based, apparently, on what the Full Court said at [44] of FSG17 (FC). However, the applicant identified two errors with this approach. Firstly, on the applicant’s submission, the opportunity referred to by the Full Court was the opportunity to comment on the irrelevant information, rather than the process by which the IAA should handle the irrelevant information. Second, the Full Court was not saying that the mere act of providing an opportunity to comment on the information was capable of curing an apprehension of bias. As the touchstone for the apprehension of bias remains whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions they are required to decide, it followed that the opportunity to comment on the material must in some way change the lay observer’s view such that an apprehension of bias no longer arises. It was said that this could only occur in a case such as this – where the information is ‘highly prejudicial’ - by the receipt and consideration of new material or information which altered the prejudicial nature of the information that was commented on. In this respect, the case could be distinguished with that which was considered by a Full Court of the Federal Court in BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 (‘BYX17’).
The applicant submitted that here – where the IAA did not wait for him to respond to its request for comment before making a decision – the mere offer to comment on the material could not remedy its highly prejudicial nature nor, it followed, the apprehension of bias in the mind of the observer.
The applicant submitted that this was a case that required the IAA, having reviewed the Court decisions, to hand back the applicant’s file with instructions for the substituted reviewer, as to what needed to be done. Those instructions would identify the irrelevant information as being entirely extraneous to the review and caution the substituted reviewer from having any regard to it.
Minister’s submissions
The Minister did not dispute, as a statement of general principle, that the test of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the IAA might not bring an impartial mind to the questions the IAA is required to decide. In certain circumstances, the lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious, prejudicial effect on the mind of a decision-maker.
However, the Minister emphasised that as cases such as CNY17 made plain, the question of whether conduct gives rise to an apprehension of bias is determined in the light of the totality of the circumstances. Here, there were important differences between the circumstances of the second IAA review, and the first review considered in FSG17 (FC) which included that in the case of the second review:
(a)the IAA notified the applicant in advance that it would be treating the prejudicial information as irrelevant and outside the scope of the review. The IAA’s invitation to comment on ‘these issues and the IAA’s intended approach’ plainly included the opportunity to comment on the substance of the prejudicial information;
(b)the IAA did not have the underlying documents, but only the description of the information contained in the Court decisions. In circumstances where the judgment spelt out how irrelevant the information was to the IAA’s review and how the IAA must disregard that information, its subconscious prejudicial effect must have been greatly reduced. The Minister further submitted that it was difficult to see how the IAA could responsibly conduct a fresh review of the matter without having regard to the reasons of the Full Court on why the first review was invalid.
(c)The applicant had a reasonable opportunity to comment on the prejudicial information and it was not to the point that the applicant actually availed himself of that opportunity. The Full Court in FSG17 (FC) stated that an IAA reviewer may be required to recuse themselves if the information is sufficiently prejudicial, ‘and the person affected by the decision is not informed of the information or given an opportunity to respond to it’
The Minister submitted that the case was similar to BMT19 v Minister for Immigration [2020] FCCA 3397 and CNY17 v Minister for Immigration [2021] FCCA 1141 (CNY17 remittal), which both distinguished FSG17 (FC), although noted that both of these decisions were under appeal.
Consideration of application ground 1
Integral to the disposition of this ground is an understanding of the purport and effect of FSG17 (FC).
In that case, the Full Court was required to adjudicate on the question of whether a fair-minded lay observer might reasonably apprehend that the IAA might not bring an impartial mind to its decision, by reason of the receipt of a document described as a ‘Court Attendance Notice’ which appeared to have been issued early on 23 September 2016 and required the applicant to attend the Bankstown Local Court at 9.30 am that day (FSG17(FC) at [37]). The Full Court considered that the Court Attendance Notice and the ‘Fact Sheet’ that formed part of the document, contained information of a highly prejudicial kind. That information is described at [13] above.
The Full Court noted that in its reasons for decision, the first IAA had identified the prejudicial information, cogently explained why the information was irrelevant to the decision and stated that the IAA would disregard the information in making its decision. The question that arose was whether the apprehension of bias that arose by reason of the IAA receiving and considering the information was assuaged by those statements in the IAA’s reasons (FSG17(FC) at [39]).
The Full Court acknowledged that in some cases, a statement of this kind might go far enough to have an ameliorative effect. However, ‘information may be of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind, notwithstanding that the decision-maker consciously and expressly endeavoured to disregard the information’. The Full Court emphasised however, that the possibility of subconscious effect is directed not at the question of whether the decision-maker had, in fact, been unable to put the information out of his or her mind but instead on what, including having regard to the nature of the information, the fair-minded lay observer would reasonably apprehend (FSG17(FC) at [41]).
In upholding the ground of appeal, the Full Court said (at [42] and [44]):
[42]In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, a fair minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information.
…
[44]In the context of a review under Part 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case.
At first blush, the Full Court might be understood as suggesting that provided that the individual affected is apprised of the irrelevant (and prejudicial) information and afforded an opportunity to respond to it, then the decision-maker will not be required to take any further steps, including to recuse him or herself, to avoid an apprehension of bias. However, I do not consider that the Full Court’s decision should be interpreted so absolutely. As the parties agreed, the question of whether conduct gives rise to an apprehension of bias is determined in the light of the totality of the circumstances and in this case, part of those circumstances, which in my opinion remained substantially unaltered as between the first and second IAA review, was the character of the irrelevant material that was before the decision-maker.
Although it is true that the irrelevant information that was before the second IAA (and the subject of a referral by the Secretary under s.473CB(1)(c) of the Act) was the information captured in the Court decisions, rather than the information constituted and captured by the Court Attendance Notice (and its related documents), it was nonetheless information that objectively warranted the label of ‘highly prejudicial’. This was so even without the addition of the features relied upon by the applicant as exaggerating its prejudicial effect. In this respect, the IAA was, in my view, grossly understating its character when, at [10] (CB 892) of its written statement, it identified the court judgments as referring to the prejudicial material and the previous IAA decision ‘in the context of general description’. Instead, both of the Court decisions, and especially, FSG17 (FCC) at [45]-[46], contained specific detail connecting the applicant to conduct that, in the mind of a fair-minded lay observer would be considered reprehensible.
The information was also distinguishable, in terms of its capacity to reflect poorly on the character of the applicant, from the information that was before the decision-maker in CNY17 remittal. This information, which also consisted of descriptions of prejudicial information contained in the various judgments of the High Court, was, when compared to the information in the Court decisions, significantly more benign in nature. For this reason, I do not consider that CNY17 remittal provides a satisfactory analogy that should be followed (as to result) in this case.
However, this does not foreclose the question of whether there was a risk of apprehended bias. It is necessary to make a determination as to whether any of the ‘distinguishing’ circumstances of this case might together have ameliorated the force and effect of the irrelevant information.
The distinguishing features of the case on remittal were:
First, the ‘irrelevant information’ was disclosed to the applicant, insofar as the applicant was informed, in the letter from the IAA to the applicant dated 6 May 2020, that part of the review material included ‘the references and descriptions of the material in the previous IAA decision and the Court’s decisions’.
Second, because the ‘irrelevant information’ that was before the second IAA was contained in the Court decisions and not captured in the Court Attendance Notice, it took on a different complexion. The information was referred to for the purpose of informing the judicial review and appellate process and accompanied (in this context) by clear statements that identified the information, in unambiguous terms, as ‘highly prejudicial’ and irrelevant to the decision-making task reposed in the IAA. Knowledge of this legal framework can be attributed to the fair-minded lay observer. Equally, the putative observer would understand (constructively) that the Court decisions came to constitute ‘review material’ in this different context. However, they would also possess (constructively) the further knowledge that a feature unique to reviews conducted under Part 7AA of the Act is that the IAA is required, by reason of s.473DB(1) of the Act, to consider the review material provided to it under s.473CB.
Third, the applicant was given an opportunity to comment on the irrelevant information. In this respect, I do not accept the submission made by the applicant that the opportunity communicated to him by the IAA in its letter dated 6 May 2020 (or otherwise) was restricted to an opportunity to comment on the approach to be adopted towards this information. This is apparent in particular from what is recorded in the following paragraphs of that letter which make reference to paragraph [44] of the Full Court’s judgment in FSG17 (FC) (see [27] above).
Irrelevant material
As noted in your representative’s email dated 1 May 2020, the decisions of the previous IAA reviewer, the Federal Circuit Court and the Federal Court of Australia relating to your matter contain references to, and general descriptions of, material deemed highly prejudicial and irrelevant to the assessment of your protection claims.
The material itself has not been referred for the IAA’s consideration in this fresh review…It does not from part of the review material. It is not before the IAA. As for the references and descriptions of the material in the previous IAA decision and the Court’s decisions, the IAA does not consider it to be relevant and does not intend to consider it. Nevertheless, and having regard to the Federal Court of Australia’s observations at paragraph 44 of its decision, the IAA is providing you with the opportunity to comment on this approach.
You are invited to give written comments on these issues and the IAA’s intended approach. Your comments must be received at the IAA by 11 May 2020.
However, it is also relevant in the particular circumstances of this case that, as events transpired, the applicant did not provide any information to the IAA concerning the irrelevant information with the result that its highly prejudicial character was not diminished. In this aspect, the present case can be distinguished from BYX17 where, at [35(c)], the Full Court identified as one of the relevant circumstances that the applicant’s representative had proffered and the IAA had accepted, ‘new information’ within the meaning of s.473DC to the effect that no charges would be laid against the applicant.
Having considered all of the relevant circumstances in this case and notwithstanding the presence amongst them of factors that might in other cases, operate to ameliorate the apprehended impact of irrelevant information on the statutory review, I have concluded that the powerfully prejudicial nature of the irrelevant information that was referred to the IAA makes a conclusion of apprehended bias irresistible. I have reached this view notwithstanding the undoubted absence of logical connection between that information and the questions which the IAA was statutorily required to determine. This is simply an acknowledgement that in this particular case, a fair-minded and appropriately informed observer might reasonably apprehend that the IAA might not bring a fair, impartial and independent mind to the determination of the matter on its merits because the irrelevant information was capable of operating on the subconscious in a manner that subverted rational or logical analysis.
For these reasons ground one succeeds. I will also order, reflecting the nature of the irrelevant information, that on remittal, the IAA be constituted by a different decision-maker.
APPLICATION GROUND 2: FAILURE TO GIVE PROPER, GENUINE AND REALISTIC CONSIDERATION
Applicant’s submissions
By application ground 2, the applicant contends that the IAA failed to give proper, genuine and realistic consideration to his claim that he was stateless, because the IAA found that the applicant was an Iranian citizen in the absence of any actual intellectual engagement with whether or not the applicant could have met any of the available pathways to Iranian citizenship.
This argument operates on the IAA’s reasons at [52] (CB 905) where the IAA said:
[52] I cannot, with any certainty, determine which of the four possible pathways to Iranian citizenship the applicant may have taken but I relevantly note a conspicuous absence of any documentary evidence of his or his parents’ or grandparents’ birthplace and while this may be explained by the circumstances of his exile from Iraq nor has he provided evidence of his mother’s status in Iran. And as noted above, I am not persuaded that his financial circumstances were as claimed. Overall, the applicant has not satisfied me that he is stateless, or that he left Iran on a fraudulently obtained Iraqi passport. He has not satisfied me that he is ineligible for citizenship, or ultimately, that his claim of denial of Iranian citizenship is credible. In light of all this, I have reached the conclusion that at some point before he left Iran, the applicant became an Iranian citizen.
The applicant submits that this paragraph contains a finding by the IAA that the applicant was an Iranian citizen which was essential to its rejection of the applicant’s claim to be stateless. The applicant submits however that the IAA failed to intellectually engage in the task of applying the facts to each of the four pathways that the applicant might have taken to obtain Iranian citizenship, which failure involved jurisdictional error.
In this respect, the applicant contends that the IAA committed an error of a similar nature to that which was the subject of appeal ground 2(a) in FSG17 (FC), which the Full Court upheld. That error was described by the Full Court as involving legal unreasonableness and followed from the first IAA’s reliance on country information to the effect that Faili Kurd refugees who presented documentary evidence of Iranian paternal ancestry were able to obtain Iranian citizenship, in circumstances where there was no evidence that the applicant had Iranian paternal ancestry and indeed, the applicant had claimed that his father and paternal grandfather were born in Iraq. The point, made by analogy, was that the IAA in this case had recorded a positive finding as to citizenship, which finding demanded an underlying intellectual engagement with the various pathways to that status.
Minister’s submissions
The Minister accepts that the IAA was obliged to give active, intellectual consideration to the applicant’s claims which, relevantly, included a claim of statelessness, but submits that this obligation, which finds its expression in decisions such as Minister for Home Affairs v Omar (2019) 272 FCR 589, does not suggest that the IAA was required to make a finding one way or the other as to the potential pathways to Iranian citizenship.
Instead, the effect of s.65(1) of the Act was that the IAA, as decision-maker, was entitled to find that the information was insufficient to grant a visa. It followed that the IAA’s conclusion that it did not have sufficient information about the applicant’s circumstances to determine which of the four pathways he would have satisfied to obtain Iranian citizenship was one open to it. The IAA was plainly concerned that it did not have any documentary evidence of the applicant’s parents’ or grandparents’ birthplaces, and did not have any evidence of the mother’s status in Iran.
Consideration of application ground 2
Whilst I accept that there is some force to the applicant’s argument, I am ultimately not convinced that the IAA erred in the manner alleged in ground 2.
The IAA considered the applicant’s claim to be a stateless Faili Kurd at paragraphs [28] to [52] of its written decision record. As noted above, the applicant relies substantially on [52] as revealing the alleged error in the approach adopted by the IAA. However, this paragraph must be understood in its proper context, including, paragraphs [48] to [51] (CB 904-905), which (reproduced in full) are in the following terms:
[48] The applicant claims he never became an Iranian citizen and there is no positive evidence before me establishing that he did acquire citizenship or nationality and according to DFAT, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved. However DFAT gives no guidance as to its reference and I note DFAT also states the numbers of registered and unregistered Faili Kurds in Iran is difficult to determine with any accuracy. The country information before me indicates it has been possible, under Iranian law, for Faili Kurd refugees to attain it and there are estimates from credible academic reporting suggesting that even by 2003 Iran had granted citizenship to up to 100,000 Faili Kurds with Iranian lineage. In addition to having Iranian paternal ancestry, citizenship can be acquired through marriage, and (since 2006) by maternal descent for those who turn 18 having been born in Iran to Iranian mothers. Additionally, eligibility has arisen through naturalisation for those who are at least 18 years of age, have resided in Iran for five years, are not military service escapees, have not been convicted of a major crime in any country. According to DFAT however, most refugees find themselves unable to meet the additional requirements of naturalisation; having sufficient qualifications or capital to invest in and run a business in Iran.
[49] The possibility of citizenship and the available pathways was noted by the delegate and is not a new issue in this review. The applicant’s representative has made submissions to the IAA on the matter, which I have considered. I also take into account the applicant’s difficulty, beyond his own evidence, of proving an absence of documentation going to a lack of nationality.
[50] However, having considered the applicant’s evidence overall, it is my view that he does not present as someone who has a lived adult experience of being a stateless registered or unregistered refugee in Iran. My concerns with the applicant’s evidence are multifaceted and significant. His evidence on his claimed refugee registration cards, work and financial circumstances have been plagued by internal inconsistencies, vague evidence and documents of questionable authenticity and his claims of detention by the Basij were unconvincing. And while he claims he had to travel out of Iran on a fake passport, when questioned in the SHEV interview he expressed uncertainty as to whether it was a passport of Iraqi nationality. Given the significance of the event, and noting the country information before me commenting on the security controls at Tehran airport where he would have had to have passed through pretending to hold Iraqi citizenship, I do not find it plausible he would not be able to recall this basic detail or that he departed using a fake Iraqi passport. Overall, I do not find him to be a credible witness as to matters of his status and experiences arising from such in Iran, nor the circumstances of his departure.
[51] While I accept the applicant was once a stateless Faili Kurd and registered refugee in Iran and accept his 2001 white card to be evidence of this, I am not satisfied this was the applicant’s status for at least the last several years that he lived there. I am not satisfied the applicant was still stateless after he moved to Qom or that he ever lived there as a registered, unregistered, or undocumented refugee.
What these paragraphs disclose is that, contrary to the applicant’s contention, the IAA rejected the applicant’s claim of statelessness having regard to its assessment of a range of considerations relating to what the IAA characterised as the applicant’s ‘lived adult experience of being a stateless registered or unregistered refugee in Iran’, rather than as principally reflecting and being responsive to a finding that the applicant had obtained Iranian citizenship. The adverse view taken of the applicant’s account and claim of being stateless was informed by a variety of matter, identified at paragraph [50], but explored comprehensively in earlier paragraphs of the IAA’s reasons, especially at [39]-[47] (CB 900-904). The concerns were directed at document authenticity and inconsistencies in the applicant’s account of his time in Iran, as measured against his own evidence and evaluated against country information that was before the IAA.
I did not understand the applicant to directly challenge any of these findings. While it is true that the IAA did record a finding that the applicant was an Iranian citizen, this finding is best understood as being the natural corollary of the IAA’s anterior findings and conclusion that: (i) the applicant did not have Iraqi citizenship ([33] CB 899); and (ii) the applicant had at one point in time been a stateless Faili Kurd but this status had changed, at least by the time that the applicant moved with his family to Qom ([51] CB 905).
The IAA did not in these circumstances, fail to engage intellectually with the applicant’s claim to be stateless. It considered the claim but dismissed it for the reasons given which did not require the IAA to confront directly or reconcile the different pathways to citizenship. In this respect, the approach adopted by the second IAA, can be distinguished from that of the first IAA in which the question of citizenship was less peripheral to the disposition of the applicant’s claim to be stateless and based on parts of a DFAT report that were irrelevant to the applicant’s circumstances (compare FSG17 (FC) at [62]-[63])
Ground 2 is for these reasons dismissed.
APPLICATION GROUND 3: LEGAL UNREASONABLENESS
Applicant’s submissions
By application ground 3, the applicant contends that the IAA’s finding that the applicant satisfied one or other of the four pathways to Iranian citizenship and was therefore an Iranian citizen, was legally unreasonable, because it was based upon illogical or irrational findings or inferences of fact.
The applicant submits that although the IAA identified the four possible pathways to obtain Iranian citizenship (at [48] CB 904), its finding that one or other of these pathways was satisfied was illogical or irrational in light of the lack of evidence before the IAA and the findings or absence of findings made by the IAA.
The applicant seeks to make good this point by reference to each of the four pathways as follows.
In respect of citizenship by marriage, the applicant submits that it is not possible for the applicant to obtain Iranian citizenship through marriage because the evidence before the IAA was that a foreign woman might be eligible for citizenship if married to an Iranian man but that as a foreign man, this pathway was never open to the applicant.
In respect of citizenship by paternal ancestry, the applicant submits that eligibility via this pathway is ‘at odds’ with other findings recorded by the IAA in its reasons. In particular, the applicant refers to the findings at [31] and [32] (CB 898-899) that the applicant has ‘Iraqi parents’ and he and his family are of ‘Iraqi Kurdish origin’. The applicant further submits that eligibility is also precluded by his evidence that his father is Iraqi and the fact that the IAA made no positive finding that his father is Iranian and there was no evidence before the IAA, in any case, that could support a finding of that nature.
In respect of citizenship by maternal descent, the applicant submits that eligibility via this pathway is again ‘at odds’ with findings recorded by the IAA. The applicant refers in particular to the finding at [31] (CB 898) that the applicant has ‘provided a consistent narrative regarding his birth in Iraq’ and that his family are of ‘Iraqi Kurdish origin’. The applicant also refers to the IAA’s observation that the absence of Iraqi documentation may be ‘plausibly explained by the circumstances of their exile’ and that the applicant’s ‘family have lived in Iran since at least his infancy and that he [the applicant] was initially stateless, either by virtue of his own citizenship being stripped, or that of one or both of his Iraqi parents’ (applicant’s emphasis). The applicant submits further that the IAA made no positive findings that the applicant was born in Iran and there was no evidence before the IAA to support such a finding. Likewise, the IAA made no positive finding that the applicant’s mother is Iranian and there was no evidence before the IAA to support that finding.
In respect of citizenship by naturalisation, the applicant submits that aside from identifying the relevant criteria for this pathway, the IAA failed to give the pathway any consideration at all with the result that there was no finding that the applicant had been naturalised, or that he satisfied the relevant criteria for eligibility under this pathway.
Minister’s submissions
The Minister submits that the IAA’s reasoning at [31]-[32] (CB 898-899) does not contain findings about the applicant’s circumstances that would preclude him from now being an Iranian citizen. The Minister submits that the applicant has overstated the significance and character of the IAA’s reasons and that its actual reasons are more confined and leave open the prospect that the applicant would have obtained Iranian citizenship from paternal ancestry, or from maternal descent.
In particular, the Minister refers to [32] and contends that in that paragraph:
(a)The IAA finds that the applicant and his family ‘are Faili Kurds and that his parents formerly lived in and were expelled from Iraq’. The IAA then states that there is no documentary evidence of the applicant’s birth in Iraq, or his family’s former Iraqi citizenship, or the mother’s status in Iran. This indicates that the IAA is leaving these issues open (because either hypothesis is consistent with the findings set out above).
(b)The IAA also accepts that the applicant and his family have lived in Iran ‘at least since his infancy’ (Minister’s emphasis) (thus being agnostic whether the applicant was born in Iran or Iraq). The IAA then states that it accepts that the applicant was initially stateless, ‘either by virtue of his own citizenship being stripped, or that of one or both of his Iraqi parents’ (Minister’s emphasis). Contrary to the applicant’s argument, this statement should not be seen as a positive finding that the applicant’s parents were Iraqi citizens, but rather a recognition of the different ways in which the applicant could have become stateless at this earlier point.
The Minister submits that once it is understood that the IAA was not making any positive finding that the applicant’s parents were Iraqi citizens, then the supposed contradiction falls away.
Consideration of application ground 3
The parties are essentially in agreement as to the principles relating to legal unreasonableness and illogical or irrational reasoning. It is trite that, at least in relation to illogicality and irrationality, the standard of review is exacting and concerned with ‘extreme’ lapses in reasoning: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47].
The parties’ arguments focus instead on how the decision of the IAA, and in particular, paragraphs [31]-[32] (CB 898-899) should be interpreted. These paragraphs state as follows:
[31]While he has provided no independent evidence of such, the applicant has provided a consistent narrative regarding his birth in Iraq, his family’s Iraqi Kurdish origin and their exile to Iran during the Iran-Iraq war which accords with country information before me regarding the treatment of Faili Kurds around this time. Generally, Faili Kurds are distinguished from other Kurdish groups by their Shi’a Islamic faith, location/origins and language. Consistent with this, the applicant claims to be Shi’a and has spoken openly about his pilgrimage to the notorious Shi’a site of Imam Reza’s shrine in Mashhad. His claimed primary languages are Farsi and Arabic (which his family spoke at home) and he claims to know some Kurdish. Country information indicates that many Faili Kurds speak Faili Kurdish but Arabic is not uncommonly spoken in the home of Faili Kurdish refugees in Iran. It also indicates that Farsi is often the first language of refugee children born there and I accept this is also relevant for the applicant, who was raised in Iran from at least infancy.
[32]I find on the evidence before me that the applicant and his family are Faili Kurds and that his parents formerly lived in and were expelled from Iraq. No independent evidence has been provided regarding the applicant’s birth in Iraq or his family’s former Iraqi citizenship, nor regarding his mother’s status in Iran, though the absence of Iraqi documentation may be plausibly explained by the circumstances of their exile. In any event, I accept the applicant and his family have lived in Iran since at least his infancy and that he was initially stateless, either by virtue of his own citizenship being stripped, or that of one or both of his Iraqi parents.
As noted above, the applicant invites the Court to find that these passages contain unambiguous findings that the applicant’s father and mother were Iraqi citizens and that his family were Iraqi Kurds, which findings (especially around citizenship) are irreconcilable with a conclusion that the applicant was in a position to satisfy three of the four documented pathways to citizenship.
However, I do not accept that these finding clearly emerge from the IAA’s reasons. Read fairly and contextually with the understanding that the IAA was not purporting to resolve the issue of citizenship and instead determined the applicant’s claim of statelessness primarily through an evaluation of the applicant’s lived adult experience in Iran, I consider that the IAA was instead leaving open questions as to the applicant’s parents’ citizenship and the applicant’s place of birth. It is clear, especially from [32], that the IAA was troubled by a lack of documentary evidence directed at ‘the applicant’s birth in Iraq, his family’s former Iraqi citizenship’ and ‘his mother’s status in Iran’ and resisted making conclusive findings on each of these topics. I do not consider that the finding by the IAA that the applicant’s family are Faili Kurds alters this conclusion in circumstances where on the country information that was before the IAA, membership of this ethnic group was not inconsistent with Iranian citizenship (refer [35] CB 899).
Although it is clear on the facts that the applicant could not satisfy the criteria for citizenship by marriage (a matter which the Minister appears to concede), it is my view that the IAA did not, by virtue of any findings made, foreclose the possibility that the applicant might have been able to satisfy one or more of the remaining three pathways to citizenship.
For these reasons, I am not satisfied that ground three is made out.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 28 October 2021
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