DFO19 v MICMSMA

Case [2023] FCAFC 38


FEDERAL COURT OF AUSTRALIA

DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38

Appeal from: DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3351; and
APM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2513
File number: WAD 304 of 2020
SAD 145 of 2020
Judgment of: BANKS-SMITH, JACKSON AND O'SULLIVAN JJ
Date of judgment: 15 March 2023
Catchwords: MIGRATION - applications for protection visas - appeals from Federal Circuit Court of Australia - where Administrative Appeals Tribunal found no substantial grounds for believing that appellants at real risk of significant harm on return to Iran - criterion for protection visa not met - where involuntary removal of non-citizen to Iran under s 198 of the Migration Act1958 (Cth) not possible - where voluntary removal to Iran possible - whether s 36(2)(aa) of the Migration Act requires consideration of significant harm on removal to receiving country to proceed on assumption of involuntary return - whether prospect of removal by voluntary return wrongly considered - no jurisdictional error on part of Tribunal established - orders of Federal Circuit Court upheld
Legislation: Migration Act 1958 (Cth) ss 36, 189, 196, 198
Cases cited:

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CLS15 v Federal Circuit Court of Australia [2017] FCA 577

DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218

DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1

DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063

EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Minister for Home Affairs v EWP17 [2019] FCA 205

Minister for Immigration and Citizenship vSZQRB [2013] FCAFC 33; (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1

Minister for Immigration and Multicultural Affairs v Respondent S152/2003 [2004] HCA 18, (2004) 222 CLR 1

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; (2021) 283 FCR 525

Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SZUNZ v Minister for Immigration and Border Protection [2015] FCAFC 32; (2015) 230 FCR 272

Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 241
Date of hearing: 18 May 2022
For WAD 304 of 2020:
Counsel…

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AGLC
DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38
Case
[2023] FCAFC 38
Decision Date

CaseChat Overview and Summary

DFO19, an Iranian citizen who arrived in Australia as an irregular maritime arrival in August 2012, appeals against the dismissal of his application for a temporary Protection Visa. His application was initially refused by the delegate and upheld by the Refugee Review Tribunal. After the Federal Circuit Court quashed the Tribunal’s decision, the matter was remitted back for reconsideration, but the Tribunal again found against DFO19. DFO19 now appeals to the court, arguing that the Tribunal failed to consider whether he would face a real risk of significant harm if returned to Iran involuntarily.

The appeal hinges on the proper interpretation and application of sections 36(2)(aa) and 36(2)(a) of the Migration Act 1958 (Cth). The key issues are whether the Tribunal correctly interpreted and applied these sections in its decision. DFO19 contends that the Tribunal should have considered the possibility of his involuntary return to Iran, despite the likelihood that he would only be returned voluntarily. The court must determine if the Tribunal's approach constituted a jurisdictional error.

The court examined the Tribunal's reasoning and found no jurisdictional error. The Tribunal considered DFO19's risk of harm based on the premise that he would return voluntarily, given Iran's historical reluctance to accept involuntary returnees and the recent diplomatic agreement facilitating voluntary returns. The Tribunal concluded that DFO19 did not face a real risk of significant harm if he returned voluntarily, which the court found to be a reasonable interpretation of the law. The court held that the Tribunal's consideration of voluntary return did not constitute a jurisdictional error, as the Tribunal was not obliged to proceed on the assumption of involuntary return without evidence to support it.

Accordingly, the appeal was dismissed. The court ordered that DFO19 pay the costs of the first respondent, to be assessed on a lump sum basis by a registrar of the Court if not agreed upon.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the first respondent's costs to be assessed on a lump sum basis by a registrar of this Court if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal’s decision is not affected by jurisdictional error.CONCLUSION ON APM19 For the reasons set out above, the appeal should be dismissed. There is no reason why costs should not follow the outcome in the usual way.DFO19 DFO19 is an Iranian citizen who arrived in Australia as an Irregular Maritime Arrival in August 2012. An application for a permanent Protection Visa was refused by the delegate, and affirmed by the Refugee Review Tribunal before it was quashed by the (then) Federal Circuit Court of Australia in February 2018. The matter was remitted to the Tribunal for consideration of DFO19’s application which had then been converted to an application for a temporary Protection Visa. The Tribunal affirmed the decision not to grant DFO19 a Protection Visa and an application for review in the (then) Federal Circuit Court of Australia was dismissed. It is from that dismissal that DFO19 now appeals.The appeal in DFO19 When the matter was called on, DFO19 sought, and in the absence of any objection, was granted leave to file what is titled a “Re-amended Notice of Appeal from the Federal Circuit Court of Australia”. There is one ground of appeal, which is that the Court below erred in failing to find that the Tribunal made a jurisdictional error by failing to consider whether DFO19 would face a real chance of serious harm or a real risk of significant harm if he was to return to Iran involuntarily. There are four particulars of the ground of appeal, the first of which concerning s 5J of the Act, is not pressed. The remainder of the particulars contend:(a)Article 1A of the Refugees Convention worked to require the Tribunal to assume DFO19 would be returned to Iran howsoever that may occur. This is the s 36(2)(a) point;(b)Section 36(2)(aa) required the Tribunal to consider whether as a necessary and foreseeable consequence of DFO19 being removed from Australia to Iran, there is a real risk he will suffer significant harm; and(c)At [57], the Tribunal considered the circumstances if DFO19 was to return to Iran voluntarily. However, that was the wrong question because the Tribunal had to consider the case on the premise that DFO19 will be returned involuntarily (and not inquire into whether that kind of return would be achieved).Issues The following issues arise:(a)The proper construction of s 36(2)(aa) of the Act;(b)Depending on the proper construction of s 36(2)(aa), whether the Tribunal applied the section correctly; and(c)Whether the Tribunal applied s 36(2)(a) correctly. It is for the reasons set out below that the appeal should be dismissed.The primary judge’s reasons (Reasons) After setting out the history of DFO19’s application, the primary judge noted that the Tribunal considered what would happen to DFO19 on the basis he was a voluntary returnee. That was because it was doubtful Iran would accept DFO19 if he did not return voluntarily. The primary judge also noted the Tribunal relied on a great deal of Country Information which revealed that Iranian authorities had little interest in prosecuting failed asylum seekers for activities conducted outside of Iran, including in relation to protection claims.

Ratio Decidendi

Legal Principle Established

Those parts of the Tribunal's reasons of particular relevance are the following:Considerations54.I now turn my mind to considering the circumstances the applicant faces returning to Iran as a failed asylum seeker, a Christian convert on paper, someone who has participated in Christian activities, and his employment prospects, among other claims.Harm arising from being a failed asylum seeker55.The applicant stated that if he had to return to Iran he would not do so voluntarily.56.The Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily. On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.57.Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, 'It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.' Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough led to a change of position, I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. For this reason, if the applicant persists in not returning voluntarily I find that he would not return and as such would not face a real chance of serious harm or a real risk of significant harm. Alternatively, despite his insistence that he would not voluntarily return, I have also considered the circumstances if he was to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including his extended period abroad.(footnotes omitted) We note that the parties agreed that before the Tribunal, the actual words stated by DFO19 and reflected in para 55 were, 'I cannot go voluntarily'. The Tribunal then proceeded to consider the risks that might be faced by DFO19 on a voluntary return, concluding that:61.In considering the country information and the applicant's evidence through all stages of the review process I find that the country information is explicit in the authorities paying little attention to a failed asylum seeker and find that implicit in the country information is that this includes people who are abroad for an extended period, based upon the words, 'many will seek to live and work overseas'. Was he to return voluntarily he will not be questioned at the airport, he will not be asked whether he has converted, and the authorities would not know of his activities in Australia. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being a failed asylum seeker returning to Iran.