FEDERAL COURT OF AUSTRALIA
DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38
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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
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
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.