DOE18 v Minister for Home Affairs
[2019] FCA 1596
•30 September 2019
FEDERAL COURT OF AUSTRALIA
DOE18 v Minister for Home Affairs [2019] FCA 1596
Appeal from: DOE18 v Minister for Home Affairs & Anor [2018] FCCA 3317 File number: NSD 2212 of 2018 Judge: RANGIAH J Date of judgment: 30 September 2019 Catchwords: MIGRATION – appeal against judgment of Federal Circuit Court – whether Immigration Assessment Authority permitted to consider new information – meaning of “personal information” – whether Authority considered appellant’s claim that at risk of arrest and detention for a defined period – whether unreasonable for Authority to fail to get more information from appellant – appeal allowed Legislation: Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) ss 36(2), 473DD and 473EC
Privacy Act1988 (Cth) s 2A, 6 and 13, Schedule 1
Cases cited: Certain Lloyd Underwriters v Cross (2012) 248 CLR 378
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431
Plaintiff M174 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16
Date of hearing: 23 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 51 Counsel for the Appellant: Mr B Zipser Solicitor for the Appellant: Stamford Law Firm Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 2212 of 2018 BETWEEN: DOE18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
30 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The decision of the second respondent made on 12 June 2018 is quashed.
3.The second respondent must consider the first respondent’s referral according to law.
4.The first respondent pay the appellant’s costs of the appeal and the proceeding before the Federal Circuit Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 15 November 2018. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority). The Authority had affirmed a decision of the delegate of the first respondent (the Minister) refusing to grant the appellant a Safe Haven Enterprise (Subclass 790) Visa (“SHEV”).
The appellant’s claims for protection
The appellant arrived in Australia on 31 October 2012 from Iran. On 4 November 2015, he applied for a SHEV.
The appellant claimed to fear harm in Iran on the basis of his race, nationality and ethnicity. He claimed to be a stateless person of Faili Kurd ethnicity, who was born in Iraq. He claimed that if returned to Iran, he would be unable to renew his Refugee Registration Card (Amayesh). He would be an undocumented, unregistered refugee. He could not work legally in Iran. He feared being returned to northern Iraq and being harmed or killed by Sunni terrorists. He also feared harm as a failed asylum seeker who had sought protection in a western country.
On 21 August 2017, a delegate of the Minister made the decision refusing to grant the appellant a SHEV.
The Authority’s decision
On 28 August 2017, the appellant’s matter was referred to the Authority. The appellant’s legal representative provided a submission to the Authority on 25 September 2017. That submission, inter alia, quoted lengthy extracts from a previous decision made by the Authority concerning an unidentified Faili Kurd.
In its decision-record published on 12 June 2018, the Authority began by considering whether it was permitted to have regard to the extracts from the previous decision. The Authority said:
5.Additionally, the submission makes reference to a previous IAA decision which has been published on the IAA website. The decision is dated prior to the delegate’s decision. No reasons have been provided as to why this new information either could not have been provided before the date of the delegate’s decision or why it should be considered credible personal information when the decision is de-identified. There is no information before me to indicate the applicant in the previous IAA decision is in any way related to the applicant in this matter. The applicant has not satisfied me that s.473DD(b) is met with regard to the new information provided. Further, the applicant and his representative had already been provided with ample opportunity to provide information on all the matters in question, and had been made aware by the delegate that he would have regard to any information which was provided to him before a decision was made.
The Authority then considered the merits of the appellant’s application. The Authority accepted much of the appellant’s evidence. It accepted that the appellant was born in Iraq, that his country of former habitual residence was Iran and that he was of Kurdish ethnicity. The Authority accepted that the appellant was a registered Iraqi Kurdish refugee prior to his departure from Iran in December 2012, and that he would be an unregistered, undocumented, stateless person if he were returned to Iran.
Under the heading, “Did the applicant reclaim his Iraqi citizenship?”, the Authority considered whether the appellant had already regained or, could regain, Iraqi citizenship. The Authority stated:
35.DFAT advises that a legal framework is in place in Iraq for Faili Kurds to reclaim their citizenship. Article 18 of the 2005 Iraqi Constitution provides that anyone born to an Iraqi father or Iraqi mother shall be considered an Iraqi. It further provides that anyone who has had their Iraqi citizenship withdrawn has the right to demand its reinstatement. The Iraqi Nationality Law of 2006 provides for the restoration of citizenship to Iraqis whose citizenship was revoked. Faili Kurd representatives told DFAT in early 2014 that officials are now generally sympathetic to their claims for citizenship, and that in cases where all the necessary documentation was held, any Faili Kurd who wanted to, could regain citizenship. DFAT provides further information about the process which it describes as currently “a difficult and lengthy’ one, but assesses that reclaiming Iraqi citizenship is possible for the majority of Faili Kurds.
36.The applicant claims that he was born in Wasit, part of the southern governorates of Iraq on the border with Iran. Country information confirms that this is an area where Shia Faili Kurds reside. The applicant has consistently claimed that his parents were both born in Iraq, and I consider it reasonable to assume that they were Iraqi citizens prior to their departure in 1980. I had regard to various sources which have reported that Faili Kurds have been returning to Iraq since 2003 and many have been able to reclaim their Iraqi citizenship, particularly since 2006 when the Iraqi government actively encouraged Faili Kurds to return and reclaim their citizenship. I am therefore satisfied that it is possible that the applicant could or already has regained his Iraqi citizenship.
…..
38.Therefore, for the purposes of assessing the applicant’s claim for protection, I am satisfied that the applicant’s former habitual country of residence is Iran and Iran is the receiving country in his case. However, I have taken into account the above country information in respect of the applicant’s claim that he fears deportation to Iraq should he be returned to Iran now or in the reasonably foreseeable future.
(Underlining added.)
The Authority considered whether the appellant had a well-founded fear of persecution in Iran for reasons of his Kurdish ethnicity or membership of a particular social group (stateless Faili Kurds). Relevantly, the Tribunal stated:
45.UNHCR has noted that registered refugees have limited opportunities for income generation and low job security. Unregistered refugees in Iran, of whatever origin, have no right to work. DFAT advises that it is unlikely that a stateless Faili Kurd could apply for a work permit. However, DFAT has also been told that in practice, many Faili Kurds in Iran – both registered and unregistered – have informal access to employment, albeit in low-paid, low skilled jobs. This is normally tolerated by authorities.
46.The applicant has described how he worked in Yazd on an “illegal” basis in low-paid labouring jobs in construction and in a gym prior to his departure. He states he constantly feared arrest but has not claimed that he was ever arrested and detained for any reason…
…
49.I accept that it is possible the applicant could be arrested and detained if found to be working illegally. The applicant has made no claims that he has been involved in any political or criminal activities that attracted the adverse attention of the authorities in Iran or in Australia. He has not any intention to engage in political or anti-regime activities which may attract the adverse attention of Iranian authorities. Given his own evidence that he worked for a period of 20 or so years “illegally” (albeit in irregular, low-paid and casual jobs) prior to his departure from Iran without being arrested or detained, together with the relevant country information above, I am satisfied there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm if, as an unregistered or undocumented refugee, he is employed informally in Iran.
50.In addition to fearing arrest and detention if found to be working illegally, the applicant fears that if he is arrested he would be deported to Iraq. He claims he fears harm in Iraq from Sunni terrorists or militia, particularly in northern Iraq. He also fears being accused of being a spy by the Iraqi authorities. DFAT confirms that officially an unregistered Faili Kurd would be deported if detected. However, in practice this rarely occurs.
51.As discussed above, I am satisfied that the applicant would be able to claim Iraqi citizenship in Iraq if he chooses to do so. I am also satisfied that there is no real chance that he would be deported to northern Iraq, and it is likely that if he were to be deported it would be to Baghdad or Wasit province in the southern governorate of Iraq as this is where his family came from and it is a region which is considered to be a relatively safe area with a significant Faili Kurd population. I am satisfied there is no real chance the applicant will be seriously harmed by Sunni terrorists or militia or Iraqi authorities for reasons of his Kurdish ethnicity, Shia relation, long-term residence in Iran or any other reason if he were to be deported to Iraq by Iranian authorities. There is no evidence before me to suggest that the Iraqi authorities would perceive a Faili Kurd returning from Iran as a spy, particularly as in recent years the Iraqi government has encouraged Iraqi Kurds to return and reclaim their citizenship.
(Underlining added.)
Under the heading, “Cumulative consideration of the appellant’s claims”, the Authority said:
58.As discussed above, I accept the applicant was a registered Kurdish refugee from Iran prior to his departure In 2012. I accept that as a registered refugee, the applicant suffered some discrimination in accessing education and health services and in particular, employment. I accept the applicant's evidence that he has never been arrested or detained by Iranian authorities for working illegally. Nevertheless, I accept that he genuinely feared he could be arrested for working illegally…
…
60.…I accept that he will not have work rights or be able to apply for a work permit. However, I am satisfied that it is possible for him to informally work and that there is only a remote risk that he would be arrested and detained or deported to Iraq. Even if he were to be deported to Iraq, I am not satisfied there is any real, chance that he will suffer serious harm from Sunni terrorists or militia or from Iraqi authorities for reasons of being a stateless Faili Kurd in Iraq or that he will be accused of being a spy. I am also satisfied that it is possible for him to obtain Iraqi citizenship if he is returned to Iraq; given he and his parents were born In Iraq and the current Iraqi policy of enabling reacquisition of Iraqi citizen for Faili Kurds who had fled to Iran.
(Underlining added.)
The Tribunal went on to conclude that the appellant did not meet the requirements of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) and affirmed the decision not to grant the appellant a SHEV.
The judgment of the Federal Circuit Court
The appellant applied for judicial review of the Authority’s decision to the Federal Circuit Court. The appellant relied upon the following grounds:
(1)On 25 September 2017 the applicant’s agent provided a submission to the IAA which included extracts from the reasons for decision of a previous IAA decision. The IAA found at [5] that “the applicant has not satisfied me that s 473DD(b) is met with regard to the new information”. The IAA misconstrued s 473DD(b) in a manner which constituted jurisdictional error.
(2)The applicant claimed that, if required to return to Iran, he could not lawfully work in Iran and, he if worked, he may be arrested and detained by the authorities. The IAA found that “there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm” in Iran. The IAA failed to consider the risk and consequences of the applicant being arrested and detained for a defined period of time. This was a jurisdictional error.
(3)The applicant feared that, if required to return to Iran, he may be arrested and deported to Iraq where he would fear various claimed harms. The IAA rejected this claim at [51]. The IAA fell into jurisdictional error in rejecting the claim.
(4)The applicant claimed that, if required to return to Iran, the difficulties and discrimination he would face in relation to employment amounted to ‘serious harm’ as defined in s 51 of the Migration Act 1958 (Cth). The IAA rejected this claim at [47]. The IAA misconstrued the definition of ‘serious harm’ in rejecting this claim in a manner which constituted jurisdictional error.
The Federal Circuit Court rejected each of the appellant’s grounds. As to the first ground, the primary judge held that the Authority had not adopted any erroneous view of the expression “credible personal information” in s 473DD of the Migration Act. His Honour considered that the Authority was correct in finding that the previous decision was “de-identified”. His Honour considered that the Authority found that the individual who was the subject of the previous decision was not a person who could reasonably be identified.
As to the second ground, the primary judge rejected the submission that at [49], the Authority had only made a finding that there was an extremely remote chance that the appellant would be arrested and detained “indefinitely”, but failed to consider the chance that he would be detained for a definite period. His Honour considered that, on a fair reading, the reasons should not be construed as meaning that the Authority was addressing a specific claim that the appellant would be detained permanently. His Honour also considered that, on a fair reading, the Authority found that there was only a remote chance of the appellant being detained for either an indefinite, or a particular or defined, period of time.
As to the third ground, the primary judge rejected a submission that there was inconsistency between [35], where it was found that “reclaiming Iraqi citizenship is possible for the majority of Faili Kurds”, and [51], where the Authority found that “the applicant would be able to claim Iraqi citizenship in Iraq if he chooses to do so.” His Honour considered that at [51], the Authority had made a separate finding that the appellant would be able to claim Iraqi citizenship in Iraq if he chose to do so.
It is unnecessary to describe the primary judge’s reasons for rejecting the appellant’s fourth ground of review.
The appeal to this Court
The notice of appeal before this Court contains four grounds. The fourth ground was abandoned. The remaining three grounds are as follows:
(1)On 25 September 2017 the appellant’s agent provided a submission to the Immigration Assessment Authority (“the Authority”) which included extracts from the reasons for decision of a previous decision of the authority. The Authority found at [5] that “the applicant has not satisfied me that s 473DD(b) is met with regard to the new information”. The appellant contended in the Federal Circuit Court that the Authority misconstrued s 473DD(b) in a manner which constituted jurisdictional error. The primary judge found that the Authority did not misconstrue s 473DD(b). The primary judge erred in making this finding.
(2)The appellant claimed that, if required to return to Iran, he could not lawfully work in Iran and, if he worked, he may be arrested and detained by the authorities. The Authority found that “there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm” in Iran. The appellant contended in the Federal Circuit Court that the Authority failed to consider the risk and consequences of the appellant being arrested and detained for a defined period of time, and this was a jurisdictional error. The primary judge erred in not accepting this ground of error.
(3)The appellant claimed that, if required to return to Iran, he may be arrested and deported to Iraq where he would face various claimed harms. The Authority rejected this claim at [51] when it found that “there is no real chance the applicant will be seriously harmed … if he were to be deported to Iraq by Iranian authorities”. The appellant contended in the Federal Circuit Court that the Authority fell into jurisdictional error in two ways in rejecting this claim by the appellant. The primary judge erred in not accepting these grounds of error.
The first ground of appeal
Section 473DD of the Migration Act prohibits the Authority from considering new information, except in limited circumstances. It provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
(Underlining added.)
Section 5 of the Migration Act provides:
Personal information has the same meaning as in the Privacy Act 1988.
Section 6 of the Privacy Act1988 (Cth) defines “personal information” as follows:
Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not;
(b) whether the information or opinion is recorded in a material form or not.
The appellant identifies the issue concerning the alleged misconstruction of the s 473DD(b) of the Migration Act raised by the first ground of appeal as, “whether or not a version of a decision of the IAA which deletes the applicant’s name on the cover page contains information ‘about an identified individual or an individual who is reasonably identifiable’”. The appellant submits that, taking into account the statutory framework of Pt 7A of the Migration Act and the purpose of s 473DD, the individual who was the subject of the previous decision of the Authority was, “reasonably identifiable”. The appellant submits this is because it would be easy for the Authority to determine the identity of the individual by accessing the Authority’s records, and because a member of the public could make an application under the Freedom of Information Act 1982 (Cth) for information concerning the identity of the individual.
In my opinion, what the appellant has identified as a question of statutory construction is, in truth, a question of fact. The appellant’s submission is, in effect, that the Authority could have easily identified the individual who was the subject of the previous decision of the Authority and ought, therefore, to have decided that the person concerned was reasonably identifiable. However, there is no evidence that the member of the Authority who made the present decision had access to the identity of the individual in the previous decision, nor is there evidence as to the ease with which that identity was capable of being ascertained.
Under s 473DD of the Migration Act, the appellant was required to satisfy the Authority that the new information was “credible personal information”, and that required the appellant to satisfy the Authority that it was information or an opinion “about an identified individual, or an individual who is reasonably identifiable”. The Authority considered that the appellant had provided no reasons as to why the information should be considered credible personal information in circumstances where the decision had been “de-identified”. The Authority was not satisfied that the information or opinion was about an identified individual or an individual who was reasonably identifiable. That was a finding of fact. The finding did not involve any misconstruction of the Migration Act.
The appellant also submits that where the Authority publishes a decision and deletes the applicant’s name pursuant to its statutory obligation under s 473EC of the Migration Act, the applicant remains, “an identified individual”. That submission does raise a question of construction of s 473DD(b)(ii) and the definition of “personal information” in s 6 of the Privacy Act.
The appellant submits that it is enough that the Authority knows that the information is about a particular person, even though it does not know the name of the person. The appellant relies upon the Macquarie Dictionary definition of “identify” as “to recognise or establish as being a particular personal thing”. The appellant’s submission is that the expression “identified individual” in s 473DD of the Migration Act requires only that a reader of the decision must know that the information is about an individual person, not who that person is.
The appellant’s submission must be rejected. The expression “personal information” in s 473DD(b)(ii) of the Migration Act takes its meaning from the definition of that expression in s 6 of the Privacy Act, namely, “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Although that definition is adopted by s 473DD of the Migration Act, it should be understood in its context in the Privacy Act: see Certain Lloyd Underwriters v Cross (2012) 248 CLR 378 at [31]. Under s 2A(a), one of the objects of the Privacy Act is, “to promote the protection of the privacy of individuals”. It does this by, inter alia, enacting the Australian Privacy Principles in Schedule 1 and providing, under s 13 of the Privacy Act, that there is an “interference with the privacy of an individual” by certain entities if an, “act or practice breaches an Australian Privacy Principle in relation to personal information about the individual”. An examination of the Australian Privacy Principles shows that their emphasis is upon the privacy of “individuals”. Under s 13G of the Privacy Act, a civil penalty offence may be committed where there are serious or repeated interferences with the privacy of an individual.
In the definition of “personal information” in s 6 of the Privacy Act, the word “identified”, must take its meaning from the word “identity”, which is relevantly defined in the Macquarie Dictionary as, “the condition of being oneself or itself, and not another”. That is consistent with the focus of the Privacy Act upon the privacy of “individuals”. The corresponding meaning of “identified” is given in the Macquarie Dictionary as “to … establish as being a particular person”. The word, “identifiable”, means, “able to be identified”. Each of these meanings is concerned with whether a person is distinguished or distinguishable as being a particular individual, rather than another.
In the context of protection of privacy under the Privacy Act, the definition of “personal information” will usually be concerned with whether the information or opinion is about an individual who is named, or whose name may reasonably be ascertained. That is because a commonality of all humans is that each person has a name, and the usual way of identifying a particular individual is by their name. A person may also be identified or identifiable without being named, such as by the publication of a photograph of the person, or by a description of a particular position occupied by the person. Whatever the method of identification, a person is distinguished as being a particular individual, rather than another individual.
When s 473DD of the Migration Act adopts the definition of “personal information” in s 6 of the Privacy Act, it adopts the meaning of that expression in its context in the Privacy Act. In s 473DD of the Migration Act, the definition remains concerned with whether a person is identified or reasonably identifiable, in the sense of distinguished as being a particular individual, rather than another individual.
The effect of the appellant’s submission is that new information would fall within the definition of “personal information”, so long as the information is about a person, rather than, for example, country information or about a group of people. That submission cannot be accepted.
In the context of s 473EC of the Migration Act, it may be that the identifying number given to a particular individual, together with other information, might be sufficient to allow information to come within the definition of “personal information” in some cases. In a given case, a previous decision of the Authority may be demonstrated to be about a particular individual who is, for example, identified as a relative or friend of the applicant. In Plaintiff M174 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16, the plurality held at [33] that “personal information” can be about a person other than the applicant. However, that is not the present case where all that was known was that previous decision was about a Faili Kurd.
It may also be observed that to come within s 473DD(b)(ii) of the Migration Act, the personal information must be demonstrated by the applicant to be, amongst other things, “credible”. There may be a tension between the requirement that the information be “credible” and the definition of “personal information” which applies, “whether the information is true or not”. However, it is unnecessary to consider the issue in this case. It is enough to reject the appellant’s argument that new information falls within the definition of “personal information” so long as the information is about a person.
The second ground of appeal
As to the second ground of appeal, the appellant observes that it was part of his claim that if he were to return to Iran, any paid work done by him as a stateless Faili Kurd would be illegal, and that if caught by the authorities, he would be arrested and detained. The Authority found at [49] that it was, “possible that the applicant could be arrested and detained if found to be working illegally.” However, the Authority went on to conclude at [49]:
Given his own evidence that he worked for a period of 20 or so years illegally, together with the relevant country information above, I am satisfied there is only an extremely remote chance the applicant will be arrested and detained indefinitely and suffer serious harm if, as an unregistered or undocumented refugee, he is employed informally in Iran.
The appellant submits that this finding was limited to the risk of indefinite detention, and did not address the risk to the appellant of detention for a defined period. The appellant submits that the Authority thereby overlooked an integer or aspect of the appellant’s claims. The appellant submits that the Authority’s later statement at [60] that, “there is only a remote risk that he would be arrested and detained”, was merely intended to reflect the earlier finding at [49], but that the Authority wrongly stated the earlier finding.
The Minister submits that the Authority’s finding at [49] that there was only a remote chance that the appellant would be “detained indefinitely” must be understood in the context of the claim advanced by the appellant. The appellant claimed that, “Faili Kurds who are caught working in Iran have been jailed for periods of time”. The first respondent submits that, in that context, the Authority’s use of the word “indefinitely” is not indicative of the Authority addressing a specific claim that the appellant would be detained permanently, but, rather, was a finding that there was only a remote chance of the appellant being detained for any particular, or defined, period of time.
The Minister submits that the Authority’s language should not be too finely scrutinised. That is, of course, correct. However, the submission has its limits. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148, Katzmann and I held that at [190]:
It is well established that the reasons of an administrative decision-maker are not meant to be scrutinised too zealously to see if error can be gleaned from the way the reasons are expressed. The Court is not to be concerned with “looseness of language” or “unhappy phrasing”. But a beneficial approach to the reasons does not demand that any ambiguity be resolved in favour of the decision maker.
(Citations omitted.)
For the reasons that follow, the Minister’s submission that [49] of the Authority’s decision-record contains merely a looseness of language or unhappy phrasing cannot be accepted. Instead, it should be construed as deliberately-chosen language that conveyed a meaning that the decision-maker intended it to convey.
The Authority found at [45]–[47] of its decision-record that, as an undocumented, stateless Faili Kurd, the appellant could work illegally in Iran, and that country information indicated this was normally tolerated by the authorities. The Authority accepted at [49] that it was possible the appellant could be arrested and detained if found by the authorities to be working illegally in Iran, but then moved to its conclusion that, “there is only an extremely remote chance the applicant will be arrested or detained indefinitely”. That conclusion was expressly based upon two factors: first, the appellant had worked illegally for 20 years or so without being arrested and detained; and, second, country information which indicated that such illegal work was normally tolerated by Iranian authorities. The specific expression of the conclusion as based on these factors leaves no room for any implication that it was based on any other factors.
In reaching that conclusion, the Authority did not refer to other relevant evidence given by the appellant. The appellant had said in his statement placed before the delegate that he knew a lot of Faili Kurds who had been arrested for working illegally. He also stated that there were heavy fines for people caught working, and that if he were caught working twice he would probably be sent to the border region between Iran and Iraq. He stated that Faili Kurds who were caught working in Iran had been jailed for periods of time, but he did not know for how long they were jailed. He stated that he had to leave employment a number of times, for fear of being arrested. These were matters which, if accepted, would have supported the appellant’s case that he was at risk of being arrested and detained, but which were not mentioned by the Authority in its decision-record. In reaching its conclusion at [49] based only upon the two factors it did mention, the Authority evidently did not have regard to these aspects of the appellant’s evidence.
It was clearly open to the Authority to find that there was only an extremely remote chance that the appellant would be, “detained indefinitely”. However, the Minister submits that the Authority should be understood to have found, contrary to the natural meaning of the language it used, that there was also only an extremely remote chance of the appellant being detained for any period at all. If this was what the Authority decided, then it would have had to reject or reconcile the appellant’s evidence described in the preceding paragraph, since that evidence could not be regarded as irrelevant or insignificant. However, the Authority did not reject, reconcile, or even have regard to, that evidence in making its finding. Acceptance of the Minister’s construction of the Authority’s finding at [49], would mean that the Authority overlooked significant evidence that could have affected a finding critical to the outcome. Such a failure would amount to jurisdictional error: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]–[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [68]–[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]–[56].
However, the alternative way of understanding the Authority’s finding at [49] is, as the appellant contends, that the Authority meant what it said when it found that, “there is only an extremely remote chance that the applicant will be arrested and detained indefinitely”. That finding leaves the problem that the Authority did not address the appellant’s claim that he was at risk of detention not amounting to indefinite detention.
It is true that at [60], the Authority found that, “there is only a remote risk that [the appellant] would be arrested and detained”. That might be construed as reflecting a separate finding that both encompassed and superseded the finding at [49]. However, the context of the finding at [60] must be considered. It appeared under the heading, “Cumulative consideration of the applicant’s claims”. The paragraph immediately following that heading commenced with the words, “As discussed above …”. What then followed was a recitation of the findings that the Authority had earlier made, culminating in a finding at [64] that, “Having regard to the above findings cumulatively, I am satisfied that there is no real chance that the applicant will suffer serious harm”. Accordingly, at [60], the Authority appears to have intended to simply re-state the finding it made at [49] that there was only an extremely remote chance that the appellant would be “arrested and detained indefinitely”, but then misstated its earlier finding.
If, contrary to this construction, the Authority is to be understood as having made a new finding at [60] that there was only a remote risk that the appellant would be arrested and detained at all, that finding would suffer from the problem of being made without consideration of significant evidence given by the appellant (described above at [40]). That would involve jurisdictional error. In that circumstance, I consider that the construction of [39] advanced by the appellant is correct.
For these reasons, the appellant’s second ground of appeal should be accepted.
The third ground of appeal
The appellant’s third ground of appeal asserts two errors in the Authority’s decision. The first is that the Authority erred at [51] in finding that, “the applicant would be able to claim Iraqi citizenship in Iraq if he chooses to do so”, whereas it had found earlier at [36] only that, “it is possible that the applicant could or already has regained his Iraqi citizenship.” The appellant submits that the Authority misunderstood or mischaracterised its earlier finding.
The context of the Authority’s statement at [36] was that it appeared under the heading, “Did the Applicant reclaim his citizenship?”. The Authority considered that it was possible that the appellant had already regained Iraqi citizenship, but went on to conclude that the appellant had not done so, and that Iran was the receiving country.
The Authority’s finding at [51] was made in a quite different context. The Tribunal was there concerned with the question of whether the appellant faced a real chance of persecution if he were deported from Iran to Iraq. In that different context, the Authority must be regarded as having made a separate and distinct finding at [51] that it was satisfied the appellant would be able to reclaim Iraqi citizenship if he chose to do so. The words, “as discussed above” in [51] must be understand to refer to the Tribunal’s discussion at [35]–[36] concerning the ability of Faili Kurds to regain Iraqi citizenship, rather than its finding at [36] that it was possible that the applicant could or had already gained Iraqi citizenship. The appellant has not established the first error described in the third ground.
The second error alleged in the third ground is that the Authority unreasonably failed to exercise its power under s 473DC(1) of the Migration Act to get new information from the appellant in respect of its finding at [51] concerning where in Iraq the appellant was likely to be sent if he were deported from Iran. The appellant argues that the Tribunal’s finding at [51] that the possibility of the appellant being deported from Iran to Baghdad or Wasit Province was never raised with the appellant, either by the delegate or the Authority. The appellant submits that it was legally unreasonable for the Authority not to invite the appellant to comment upon that issue.
The appellant’s written statement asserted that he was concerned that he would face persecution if he were deported to northern Iraq because he would be vulnerable to terrorists and militia operating in that region. The appellant made no claim that he faced a risk of harm in any other part of Iraq.
The delegate found that there was no real chance that the appellant would be forcibly returned from Iran to Iraq at all. The Authority found that there was no real chance that the appellant would be deported to northern Iraq. However, that finding implied that there was a real chance that the appellant would be deported to some other part of Iraq. The Authority then made a finding that if he were deported from Iran, he would be sent to Baghdad or Wasit Province in southern Iraq. In my opinion, it was not legally unreasonable for the Authority to have failed to give the appellant an opportunity to comment upon his safety in Baghdad or Wasit Province, in circumstances where he had never made any claim that he would be unsafe in any part of Iraq other than northern Iraq. Accordingly, the appellant’s third ground of appeal cannot succeed.
I have concluded that the appellant should succeed upon his second ground of appeal. The judgment of the Federal Circuit Court must be set aside. The decision of the Authority must be quashed and the Authority ordered to determine the Minister’s referral according to law. The Minister should pay the appellant’s costs of the appeal and the proceeding before the Federal Circuit Court.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 30 September 2019
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