DXG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 175
Federal Circuit and Family Court of Australia
(DIVISION 2)
DXG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 175
File number: MLG 1882 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 8 March 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority acted unreasonably by failing to exercise or consider exercising its discretion in s 473DC of Migration Act 1958 (Cth) – whether Authority made finding which was not open on the evidence before it – whether Authority failed to consider relevant information – whether Authority’s approach to s 91W of the Migration Act was correct – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AAA, 36, 91W, 473CA, 473DC, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597
BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97; [2017] FCAFC 72
DPI17 v Minister for Home Affair (2019) 269 FCR 134; [2019] FCAFC 43
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submissions: 23 June 2022 Date of hearing: 12 May 2022 Place: Perth Counsel for the Applicants: Mr M Guo Solicitor for the Applicants: Victoria Legal Aid Counsel for the First Respondent: Mr C Hibbard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1882 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXG17
First Applicant
DXH17
Second Applicant
DXJ17, BY HIS LITIGATION GUARDIAN, DXG17 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
8 March 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Immigration Assessment Authority (Authority) on 11 August 2017. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicants protection visas. The Authority found that s 91W of the Migration Act operated to prevent the grant of a protection visa to the first applicant, who was the only applicant to advance claims for protection, because he had failed to comply with a request under s 91W to produce evidence of his identity, nationality or citizenship and did not have a reasonable explanation for failing to comply with that request.
An amended application for judicial review filed on 18 February 2022 raises three grounds of review alleging jurisdictional error on the basis that:
(a)the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act to get new information from the applicants in relation to an issue raised for the first time by the Authority;
(b)the Authority made a finding that was not open to it on the evidence; and
(c)the Authority failed to consider evidence provided by the first applicant in relation to a failed attempt to obtain Iranian documentation in respect of his identity.
For reasons explained below, I have found that the applicants have not established that there is jurisdictional error in the Authority decision and I therefore dismiss the application for judicial review.
Background
The five applicants are members of the same family unit. The first applicant is the husband of the second applicant and the third, fourth and fifth applicants are their children. The first to fourth applicants entered Australia by sea without a visa in September 2012 and the fifth applicant was born in Australia.
The applicants applied for protection visas on 9 September 2015. The first applicant claimed he would face harm as a Faili Kurd and the second, third, fourth and fifth applicants claimed protection as members of the same family unit as the first applicant. Each of the applicants claimed in their protection visa applications that they were stateless.
On 22 December 2015 the Department wrote to the applicants acknowledging the applications and requesting further information, including that the first applicant provide documentary evidence of his identity, nationality or citizenship. The first applicant responded to this request on 20 January 2016 and provided a statutory declaration dated 20 January 2016 addressing his reasons for not providing the requested identity documents.
The first applicant provided to the Department a supplementary statutory declaration dated 3 November 2016, which, amongst other things, clarified matters raised at the stateless interview he attended in 2013 and provided information about his identity and the reasons he does not have identity documents.
The first applicant attended an interview with an officer of the Department on 9 November 2016 to discuss his claims for protection.
On 9 March 2017 a delegate of the Minister made a decision not to grant the applicants protection visas. The delegate found that the applicants were not stateless as they had claimed, but rather were citizens of Iran. The delegate found that the first applicant failed to comply with a request under s 91W(1) of the Migration Act to provide documentary evidence of his identity, nationality or citizenship and did not provide a reasonable explanation for failing to comply with the request. His application for a protection visa was refused pursuant to s 91W(2) of the Migration Act. The delegate also proceeded to address the first applicant’s protection claims and found that he was not a person to whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act. The delegate accepted that the first applicant was of Kurdish Faili ethnicity, but did not accept that he was an undocumented stateless Faili Kurd or that the discrimination he would face as a Faili Kurd would amount to serious harm or significant harm. The delegate found that the other applicants did not meet the criteria in ss 36(2)(b) or 36(2)(c) of the Migration Act.
The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
The applicants provided a submission to the Authority on 31 March 2017.
The Authority affirmed the delegate’s decision on 11 August 2017.
AUTHORITY Decision
The Authority found that s 91W of the Migration Act applied to the first applicant and that the grant of a protection visa was prevented by that section. The Authority found that the first applicant had been requested to provide evidence of his identity, nationality or citizenship in accordance with s 91W and failed to do so.
The Authority was not satisfied that the first applicant had a reasonable explanation for failing to produce evidence of his identity, nationality or citizenship, and gave the following reasons for this finding at [30]-[31] of its reasons (footnotes omitted):
30.The applicant’s explanation for his failure to comply with the request is that because he is a stateless, undocumented Faili Kurd refugee, he has no identity documents. However, even if it were the case that the applicant is a stateless and undocumented Faili Kurd refugee, I am not satisfied that this provides a reasonable explanation for his failure to provide the requested identity documents. At the TPV interview the applicant was questioned about what identity documents he and other family members possessed. He said that he and his wife had a piece of paper certifying that they had been married in a religious ceremony. He said that he no longer had this piece of paper because it had been damaged: it was just a normal piece of paper. He said that his children were born in hospital but did not receive birth certificates, only pieces of paper stating their birth weight and results of post-natal tests. He said that these documents have been lost.
31.Even if the applicant were stateless and undocumented, I consider it highly unlikely that he would not have been able to provide any documents of any kind to confirm any aspect of his account of his life, or of his or his family members’ identity. In particular, like the delegate, I do not believe that a stateless, undocumented person would have lost the few official documents which he does claim to have possessed - his children’s birth registrations, and the document certifying his religious marriage to his wife. I note that country information confirms that undocumented refugees cannot register a marriage, but states that a religious marriage certificate would provide some protection against an allegation that a couple was in an adulterous marriage. In the light of this information, and given the applicant’s claims about his vulnerable position as a stateless undocumented Faili Kurd, I consider it highly unlikely that he would have allowed the certificate showing that he and his wife had undertaken a religious marriage to be damaged to such an extent that he no longer has it. Advice from DFAT indicates that all children born in Iran in hospital should receive an official birth record which would normally, though not necessarily, include details of the parents, although “significant variation” is possible. This “birth record” appears to be the same document referred to by DFAT as an “unofficial hospital record”, which is available for children of parents without an official marriage certificate and citizenship. I find it highly implausible that these documents — representing the only official record of his children’s dates and places of birth – would simply have been lost, as the applicant claims. Based on the country information, I also have considerable doubt about the applicant’s claim that the documents did not contain details of the children’s parents, but only information about their birth date and the results of post natal tests. I also find it implausible that the applicant has not been able to provide any documents at all in relation to his brother’s situation, or that of his wife’s family members; or indeed, in relation to any aspect of his existence in Iran. I consider implausible the applicant’s evidence that after having been in regular contact with his brother for many years, he would have lost contact with him only over the twelve months prior to the TPV interview. Overall, I am not satisfied that the applicant has been truthful about what documentation he possessed in Iran, or why he is unable to provide it. I am satisfied that the applicant’s certificate of religious marriage and his children’s hospital registration records would constitute documentary evidence of the applicant’s identity. In all the circumstances, I am not satisfied that the applicant has provided a reasonable explanation for failing to provide the documentary evidence of his identity requested pursuant to s.91W(1).
The Authority also found that none of the applicants met the criteria in s 36(2)(b) or (c) of the Migration Act as they were not members of the same family unit as a person mentioned in s 36(2)(a) or 36(2)(aa) who holds a protection visa.
Judicial Review Application
The applicants commenced proceedings in this Court by filing an application on 31 August 2017, within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The applicants now rely on an amended application filed on 18 February 2022, which raises the following three grounds of review:
1.The IAA unreasonably failed to exercise the power in s 473DC of the Act to get new information from the Applicants in respect of how the First and Second Applicants would have responded to a hypothetical allegation of adultery, which was raised for the first time by the IAA.
2.The IAA found that hospital cards in respect of the Third and Fourth Applicants were the ‘only official record’ of their birth, such finding not being open on the evidence.
3.The IAA failed to consider the First Applicant’s claim in his statutory declaration of 3 November 2016 to have attempted to but failed in obtaining Iranian documentation in respect of his identity, such claim capable of satisfying s 91W(3)(a) and (b)(ii).
The matter came before me for hearing on 12 May 2022. In addition to the oral submissions advanced at the hearing, both parties filed written submissions before the hearing and supplementary submissions after the hearing.
The evidence before the Court comprises the court book and the following affidavits which were read:
(a)an affidavit of Amy Faram affirmed on 18 February 2022 and filed on behalf of the applicants, which annexes a transcript of the first applicant’s protection visa interview and a country information report prepared by the Department of Foreign Affairs and Trade (DFAT), referred to by the Authority in its reasons; and
(b)an affidavit of Andrea Nicola Anastasi affirmed on 4 March 2022 and filed on behalf of the Minister, which annexes a further country information report referred to by the Authority in its reasons.
Relevant legislation
The Authority’s decision is based on its finding that the first applicant could not be granted a protection visa because of the operation of s 91W of the Migration Act. That section provides:
(1)The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2) The Minister must refuse to grant the protection visa to the applicant if:
(a) the applicant has been given a request under subsection (1); and
(b)the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c)the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d)when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b) either:
(i)produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4)For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
Ground 1
Relevant country information and reasoning of the delegate and the Authority
Ground 1 relates to the Authority’s finding that the first applicant did not have a reasonable explanation for not providing his religious marriage certificate.
In addressing this ground, it is relevant to have regard to the delegate’s findings as well as those of the Authority.
The delegate relevantly found:
In relation to the applicant’s other documents, I consider implausible that the applicant would lose or ruin the only identity documents in his possession. Therefore, I do not accept that the applicant has no evidence of his matter and two children’s births.
The Authority addressed this issue in greater detail at [31] (footnotes omitted):
Even if the applicant were stateless and undocumented, I consider it highly unlikely that he would not have been able to provide any documents of any kind to confirm any aspect of his account of his life, or of his or his family members’ identity. In particular, like the delegate, I do not believe that a stateless, undocumented person would have lost the few official documents which he does claim to have possessed - his children’s birth registrations, and the document certifying his religious marriage to his wife. I note that country information confirms that undocumented refugees cannot register a marriage, but states that a religious marriage certificate would provide some protection against an allegation that a couple was in an adulterous marriage. In the light of this information, and given the applicant’s claims about his vulnerable position as a stateless undocumented Faili Kurd, I consider it highly unlikely that he would have allowed the certificate showing that he and his wife had undertaken a religious marriage to be damaged to such an extent that he no longer has it.
The country information on which this finding was based was the DFAT report at [3.42]-[3.43] which reads:
3.42Registered Faili Kurds are able to record their marriages, including on their amayesh card, which shows them as members of a household. Unregistered Faili Kurds could enter into religious marriages, but without registering as refugees with Iranian authorities they would not be able to record the marriage officially.
3.43There is a risk of prosecution for any unmarried couple who cohabit or have children. This risk would be greater in rural and provincial areas, than it is in Tehran. Stoning is a possible penalty for adultery, but it is rarely carried out. A religious marriage certificate may provide a ‘defence’ to such prosecution, although it would depend on the terms of the marriage (temporary marriage is permitted in Iran, and a religious marriage certificate could be expired).
Applicants’ submissions
The applicants submitted that the delegate provided only the barest of reasons for rejecting the applicants’ lack of documentary evidence concerning the marriage of the first and second applicants and the birth of their children. In contrast, the Authority specifically relied on country information in the DFAT report to find that ‘a religious marriage certificate would provide some protection against an allegation that a couple was in an adulterous marriage’ and in these circumstances, considered it to be highly unlikely that the first applicant would have ‘allowed’ the religious marriage certificate document to be damaged. The applicants submitted that it was not apparent from their case or the delegate’s reasons that there was at any point that the first and second applicants normatively ought to have been more careful to guard the religious marriage certificate in case they might one day be accused of adultery.
The applicants submitted that the point regarding adultery was so far from what was apparent from the delegate’s reasons that it was legally unreasonable for the Authority not to exercise its discretion in s 473DC to invite the applicants to provide new information and reasoned that the present case was analogous with Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32 (DZU16). The applicants submitted that the Authority took an entirely new point that did not arise from any of the material that had been submitted by the applicants and was not apparent from the delegate’s questions concerning the documentation of the marriage.
In oral submissions, Counsel for the applicants and I discussed other cases where the courts had found that the Authority unreasonably failed to exercise, or to consider the exercise of, the discretion in s 473DC of the Migration Act. In the course of that discussion, Counsel for the applicants referred me to the case of AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597 (AYT18) as an example of a case where the Authority was found to have acted unreasonably in not exercising the discretion to get new information from the referred applicant before finding that a document provided in relation to his identity was not genuine, in circumstances where he was not on notice that there was any issue that document he provided may be false.
In response to the Minister’s submission, addressed below, that the Authority effectively made the same finding as the delegate, but with additional reasoning, Counsel for the applicant submitted that the Authority’s findings were like a credibility assessment, in that it did not believe the first applicant’s explanation for losing the document, and it is possible that the first applicant might have come up with some explanation that might have moved the Authority.
Minister’s submissions
The Minister submitted that the applicants’ complaint does not meet the threshold of unreasonableness and the ‘demanding standard’ required to establish legal unreasonableness in the context of Part 7AA of the Migration Act.
The first applicant informed the Department that he had no documents that could confirm any aspect of his account of his life, or of his family members’ identity, and that this position was maintained in his statutory declarations, protection visa interview, and in his submissions to the Authority.
The Minister also submitted that it was open for the Authority to conclude based on the country information before it that it was unlikely that the first applicant would have allowed the marriage certificate to become damaged or lost. The Authority’s treatment of this issue was a feature of the Authority’s assessment of country information and its weighing up of the reasonableness of the applicants’ claims against that country information.
In oral submissions, Counsel for the Minister emphasised that the key finding by the Authority is in substance no different from the key finding made by the delegate, and simply provides further detail. Counsel for the Minister further submitted that, bearing in mind that the Authority is under no obligation to put particular information to the applicants, it is not a huge leap for the Authority to reach a similar conclusion to that made by the delegate, note that there is further country information before it saying that there is a particular incentive to have the document that the first applicant says he has lost, and then conclude that it is not satisfied that it is reasonable for the applicant to have lost the document.
Resolution
There is no doubt that, in some circumstances, a decision made by the Authority can be legally unreasonable if the Authority failed to exercise, or failed to consider the exercise of, the discretion in s 473DC of the Migration Act to get new information. Examples of cases where the courts have found that the Authority acted unreasonably in not exercising or failing to consider exercising the discretion in s 473DC include cases where a new issue arose in the Authority’s review, which the Authority considered to be dispositive, and the applicant was not on notice of the issue from the delegate’s decision or the way in which her or his claims were advanced: see, for example, Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210, DZU16 and AYT18. By way of further example, there have also been cases where the Authority has been found to have acted unreasonably in its non-exercise of the discretion in s 473DC where it has taken a different position to the delegate in relation to the applicant’s credibility without inviting the applicant to attend an interview or otherwise provide new information: see, for example ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 , DPI17 v Minister for Home Affair (2019) 269 FCR 134; [2019] FCAFC 43. These are simply examples and the assessment of reasonableness of course needs to be assessed on a case-by-case basis.
In assessing whether the Authority’s non-exercise of the discretion in s 473DC is unreasonable in the present case, I consider the following factual matters to be relevant:
(a)the first applicant was on notice from the delegate’s decision and the request under s 91W of the Migration Act that whether he had a reasonable explanation for not producing documents showing his identity, nationality and citizenship, including his religious marriage certificate, was an issue;
(b)the delegate considered the first applicant’s explanation that he had lost the documents to be implausible; and
(c)the Authority also considered the first applicant’s explanation that he had lost the religious marriage certificate to be implausible, albeit with more comprehensive reasoning than that of the delegate and without specifically inviting the first applicant to comment on its proposed more specific reasoning.
I have had regard to the transcript of the first applicant’s protection visa interview with the delegate and I am satisfied that the first applicant was not specifically asked whether he might need the religious marriage certificate as a defence to a charge of adultery. The transcript records the following exchange between the delegate and the first applicant at the protection visa interview in relation to the marriage certificate:
Q195. Okay. And where were you married?
AIt was at my wife’s place. At their place – the clergy person came and just called us husband and wife and we had a celebration there as well.
Q196. And you weren’t issued a marriage certificate?
A No. No.
Q197. So how do you prove that you are married?
AIt was just on a piece of paper. It was written my name and my details and her details that she has – we are going to be – we are married and then the – there were a few old men in the ceremony. They were the witness. They witnessed it and that was it.
Q198. So that piece of paper – why do they write it on a piece of paper?
ABecause we didn’t have any sort of – we didn’t have access to do any sort of formal documents. It was just like a (indistinct) that they could witness. Just as anyone could do that.
Q199. And who else signed the piece of paper?
AThere were a few old men that they knew us. Three or four of them. They just with their fingerprint and – that’s yes, they were – they witnessed our marriage.
…
Q202. Okay. And you don’t have – do you have the piece of paper?
AUnfortunately it just got damaged and destroyed eventually, because it was just a normal piece of paper.
I invited both parties to comment on this at the hearing, and in particular question 197 asking how the first applicant proves that he is married. Counsel for the applicant accepted that there was some general overlap, but submitted that the very precise reasoning concerning proof of not being in an adulterous relationship is so far removed from the very generalised issue addressed in question 197 that it cannot be said to have been wrapped up in this more general question. Counsel for the Minister accepted that there was a question asked as to how the first applicant would prove his marriage, but did not seriously press any point arising from this question. Counsel for the Minister did, however, note that even if it the question did go to the precise issue addressed by the Authority, it still raised the general issue more fully than it had already been raised.
Taking into account all of the circumstances of the present case, the Authority’s failure to exercise the discretion in s 473DC of the Migration Act to get new information from the applicants about how they would disprove a charge of adultery in the absence of their religious marriage certificate was not legally unreasonable.
First, I am satisfied that the first applicant was on notice that whether he had a reasonable explanation for not providing his religious marriage certificate was an issue to be determined. This was clear from the delegate’s decision and it ought to have been clear from his protection visa interview.
Second, there was nothing in the delegate’s decision that could have caused the first applicant to believe that this was an issue likely to be resolved in his favour. The delegate considered it to be implausible that the applicants would lose the few identity documents that they had, and the Authority also considered it to be implausible that the applicants would lose the very small number of documents that they had that could prove their identity. In this way, the case is quite different from AYT18 relied on by the applicants, where there was nothing to put the applicant on notice that a document he provided might not be genuine.
Third, the first applicant had been specifically asked to address in his protection visa interview how he would prove his marriage and in his response he referred expressly to the existence of the unofficial marriage certificate. It is implicit in this that the first applicant himself recognised the importance of the document in proving his marriage, even though he subsequently downplayed the significance of the document. While I acknowledge that the first applicant was not specifically asked how he would disapprove a charge of adultery, I do not consider that this question needed to be put to him in the level of specificity now suggested by the applicants in order for the Authority to have acted within the bounds of reasonableness.
I accept the Minister’s submission that the Authority’s reference to the religious marriage certificate potentially providing a defence to an allegation that the marriage was adulterous was in effect additional reasoning which bolstered the Authority’s finding on substantially the same basis as that of the delegate, that is, the implausibility of the applicants losing the document. It was open to the Authority to rely on country information in the way that it did, without inviting the applicants to comment on that country information or the issues it raised, to provide more comprehensive reasons for its decision than the delegate did.
Ground 1 is not established.
Ground 2
Relevant country information and reasoning of the Authority
Ground 2 relates to the findings made by the Authority relying on the information about birth certificates in the DFAT report.
The DFAT report relevantly states:
3.40All children born in hospital in Iran should receive an official birth record. This would normally state the date, time, place and the parents’ details. However, significant variation is possible. This does not automatically establish any citizenship rights for the child.
3.41An official marriage certificate–not a religious document–and Iranian citizenship are required to register the birth of a child and receive an Iranian birth certificate. A birth certificate would not be issued with only the father’s name recorded, unless the mother was deceased and a death certificate presented. An unofficial hospital certificate recording the birth is usually provided in other cases.
The Authority interpreted this information in its reasons at [31] where it said (footnotes omitted):
Advice from DFAT indicates that all children born in Iran in hospital should receive an official birth record which would normally, though not necessarily, include details of the parents, although “significant variation” is possible. This “birth record” appears to be the same document referred to by DFAT as an “unofficial hospital record”, which is available for children of parents without an official marriage certificate and citizenship.
The Authority then proceeded to find that it was ‘highly implausible’ that the documents from the hospital recording the children’s births, representing the only official record of the children’s dates and places of birth, would simply have been lost.
Applicants’ submissions
The applicants submitted that the Authority’s finding in relation to the birth documentation of the children was not open to it on the evidence relied on by the Authority.
The applicants submitted that the Authority’s reasons are misleading insofar as they refer to a ‘birth record’, because the DFAT report at [3.40] clearly refers to an ‘official birth record’. The applicants’ submitted that, once it is appreciated that the DFAT report at [3.40] referred to an ‘official’ birth record, the Authority’s supposition that the country information was speaking of an unofficial hospital record is plainly and demonstrably wrong.
The applicants also submitted that the Authority’s finding that it was highly implausible that these documents, representing the only official record of the children’s dates and places of birth, would simply have been lost was a misstatement of country information. These documents were never presented as an official record of birth, and the country information did not describe unofficial hospital certificates as official records of birth. It was, according to the applicants, incorrect to refer to the hospital card as the ‘only official records’ of the children’s birth because they were not official records.
The applicants submitted that this alleged error is plainly material because had the Authority properly understood the country information, it would not have rejected the first applicant’s evidence. Rather, it would have appreciated the true nature of the hospital cards as unofficial documentation and would not have normatively reasoned that the first applicant ought to have been able to find them.
Minister’s submissions
Noting that the core of the applicants’ complaint is that the Authority incorrectly assumed that two purportedly different documents – an ‘official birth record’ and an ‘unofficial hospital certificate’ – were the same document, the Minister submitted that it is far from clear that the record referred to at [3.40] of the DFAT report is necessarily different to the unofficial hospital certificate referred to in [3.41]. The Minister submitted that while the reasons may not have been phrased with precision, it was not internally contradictory for the Authority to have found that the two types of birth records amounted to the same document for the purposes of a document the applicants were likely to have.
The Minister further submitted that, even if the Authority made a factual error in considering that the ‘unofficial hospital certificate’ was the same as the ‘official birth record’, it is difficult to see that the error was of any consequence. When the Authority reasons are read as a whole, it is apparent that the Authority used the word ‘official’ in two different ways. When describing the DFAT report, it referred to the ‘official’ record and the ‘unofficial’ certificate in the way described in the report, and when referring to the implausibility of the applicants losing the only ‘official’ record of the children’s births, it used the word ‘official’ to describe documents given by a reputable or authoritative source. The Minister submitted that it was open to the Authority to conclude it was implausible for the first applicant to have simply lost these documents, given they represented the only record of his children’s birth.
Resolution
As can be seen from the extract at [45] above, at [3.40] of the DFAT report, reference is made to an ‘official birth record’ that ‘all children’ born in hospital in Iran should receive. The DFAT report at [3.41] then refers to two distinct types of documents. People can register the birth of the child and receive an Iranian birth certificate, but only if they have an official marriage certificate and Iranian citizenship. The DFAT report appears to suggest that without an official marriage certificate and Iranians citizenship, an unofficial hospital certificate recording the birth would usually be provided. There is more than one way in which this aspect of the DFAT report might reasonably be interpreted.
(a)First, there is the way in which the Authority interpreted the information. The Authority reasoned that the ‘birth record’, by which it appears to be referring to the official birth record referred to in [3.40] of the DFAT report, appears to be the same document that DFAT referred to in [3.41] as an ‘unofficial hospital record’. I do not accept the applicants’ submission that this is plainly and demonstrably wrong. It is possible that it is the correct interpretation, although I acknowledge that opinions may differ as to whether it is in fact the correct interpretation.
(b)The Minister has proffered the following possible interpretation of the DFAT report at [12] of his written submissions (footnotes omitted):
First, it is far from clear that the “record” referred to in paragraph 3.40 of the DFAT country information is necessarily different to the unofficial hospital certificate referred to in paragraph 3.41. There is nothing in paragraph 3.40 that suggests that a “birth record” is necessarily a document given to a child born in the hospital. The wording in that paragraph may equally be read as referring to the record kept by the hospital of the child’s birth, while paragraph 3.41 refers to an unofficial certificate that is a certificate actually given to the parents that “record[s] the birth”. Accordingly, while [31] may not be phrased with precision, it was not “internally contradictory” for the Authority to have found that the two types of birth record amounted, for the purposes of a document the applicant was likely have, to the same document.
It is possible that this is the correct interpretation, although if so, it is unfortunate that the DFAT report uses the word ‘receive’ in the opening sentence of [3.40] because that word tends to suggest that some sort of document is given out in respect of the birth of all children born in hospital in Iran.
(c)Alternatively, it may be that the two types of documents referred to in paragraph [3.41] of the DFAT report are two alternatives which comprise the ‘official birth record’ referred to at [3.40]. It would appear that the ‘official birth record’ referred to at [3.40] cannot amount to a ‘birth certificate’ in every case because it is recorded at [3.40] that all children born in hospital in Iran are able to receive an official birth record, whereas [3.41] speaks of limitations on those who can receive an official birth certificate. However, if the two types of documents referred to in [3.41] are intended to refer to the two types of documents that can comprise the ‘official birth record’ in [3.40], then DFAT’s use of the description ‘unofficial’ to describe the hospital certificate appears to be contradictory to its use of the word ‘official’ in the first sentence of [3.40].
In the end, I do not consider it necessary to make any finding as to the proper meaning of the DFAT report in this judgment. That is because I accept the Minister’s submission that, where the Authority referred to the documents from the hospital that the applicants previously held as the ‘only official record of [the first applicant’s] children’s dates and places of birth’, it was using the term ‘official’ to describe documents given by a reputable or authoritative source. Contrary to the applicants’ submissions, I do not consider that this interpretation of the Authority’s reasons amounts to putting a ‘gloss’ on the reasons or reconstructing the reasons. It is rather an interpretation that is open on the plain English reading of the Authority’s reasons and taking into account the whole of the reasons.
It was open to the Authority to find it to be implausible that the applicants would lose the only official, in the sense of reputable or authoritative, record of the children’s births. This reading of the word ‘official’ in this context is open and appropriate whether or not DFAT intended to use the word ‘official’ in the same way or in a different way in its report.
Ground 2 is not established.
Ground 3
Relevant evidence and parts of Authority’s reasons
In his statutory declaration of 3 November 2016 (November 2016 statutory declaration), the first applicant offered the following explanation in relation to an attempt he made in Iran to obtain citizenship or recognised status. The first applicant said:
The officer at my Stateless Interview in 2013 also asked me whether I had ever applied for Iranian citizenship. As I think I said at the interview, I went with a friend to the registry of death and marriage in about 2005 and enquired about applying for citizenship or something that would give us recognised status. The person we spoke to at the registry asked us to provide details of our family names. The person went away to check the names against their records and came back and said he could not help us because they did not have any record of our ancestors. He said that I had to be able to prove that my ancestors, a relative or I were recorded as being registered in their system. I was also told that I could undergo a blood test to prove that I was related to a person already registered. I did not know of any relative registered. I knew of relatives who had applied for citizenship and who were told that because there was no name or record for them or their ancestors or relatives they could not obtain citizenship. I also tried to obtain a white card around the time I enquired about applying for citizenship but was told each time that I could not get one because I did not have any identification documents and I did not hold a green card. Because of these things I did not keep trying after that.
In summarising the first applicant’s claims, the Authority said at [9]:
… He claims that in about 2002 he applied for both citizenship and a white card, but was unsuccessful because he could not prove Iranian ancestry…
Both parties appear to accept that the reference to ‘2002’ is a typographical error and that the extracted sentence is a reference to the November 2016 statutory declaration. The Authority did not otherwise specifically refer to the November 2016 statutory declaration in its reasons.
Applicants’ submissions
The applicants submitted that the Authority did not refer to the November 2016 statutory declaration which explained the first applicant’s attempts to obtain documentary identity evidence in respect of himself. There is no reference to the first applicant’s explanation of his unsuccessful attempts at obtaining the documentation under the Authority’s application of s 91W of the Migration Act, and the Authority instead focuses on why it considered it implausible that the marriage and birth documents had been lost. The applicants submitted that the November 2016 statutory declaration was clearly capable of satisfying s 91W(3)(a) and (b)(ii) of the Migration Act, and the Authority’s reasons do not show any active intellectual process in respect of this part of the November 2016 statutory declaration.
In oral submissions, Counsel for the applicants emphasised that the power to request documents relating to a person’s identity, nationality or citizenship in s 91W(1) of the Migration Act is not limited to specific types of documents. He submitted that, independent of the marriage certificate and birth records that the applicants claimed to have once had, there was another way that the first applicant could have satisfied the exception in s 91W(3), and that is because he had attempted to obtain citizenship documents and had a reasonable explanation for not providing any citizenship documents. Counsel for the applicant submitted that the Authority did not engage with the first applicant’s explanation that he approached the Registry of Death and Marriage in 2005 and was unable to obtain any citizenship because he could not prove that he, or an ancestor or relative, was registered in the system, and he was unable to get a white card because he did not have identification documents and did not have a green card.
Minister’s submissions
The Minister submitted a clear inference is to be drawn from the Authority’s reasons that it was aware of the November 2016 statutory declaration and the matters it raised because:
(a)the Authority made reference at [9] of its reasons to a claim that relates to matters raised in the November 2016 statutory declaration, even if there was a typographical error in relation to a claim being made in ‘2002’ rather than ‘2005’;
(b)the Authority clearly had regard to the delegate’s decision, which contained a detailed summary of the applicant’s explanation given in the November 2016 statutory declaration;
(c)no error is revealed by the fact that the Authority did not specifically refer to this particular aspect of the applicant’s evidence in its reasons, as it is not required to give a line-by-line refutation of the evidence; and
(d)the Authority was not considering a refugee claim per se but rather the application of s 91W of the Migration Act, which provides for an assessment of whether an applicant has given a reasonable explanation for his or her failure to comply with a request for identity documents, which is entirely for the Authority to determine.
The Minister submitted that, reading the Authority’s decision as a whole, it must be inferred that the Authority took the matters raised in the November 2016 statutory declaration into account in reaching its decision.
In oral submissions, Counsel for the Minister emphasised, just as Counsel for the applicant did, that s 91W empowers the Minister to request documents relating to the identity, nationality and citizenship of the applicant, without specifying the nature of the documents. Counsel referred to the broad nature of the request issued to the first applicant in this particular matter, requesting that he produce ‘documentary evidence of [his] identity, nationality or citizenship’. The Minister submitted that the first applicant produced no documents in response to this request. It is not simply that he did not produce the documents that he sought in 2005, but also that he gave evidence of other documents, namely some sort of marriage certificate and records of his children’s birth, that he had in his possession which he then lost, and the Authority decision turns on whether or not it was plausible for him to have lost those documents. Nothing in the Authority decision turns on the possibility that the first applicant might have obtained other documents but did not.
Counsel for the Minister submitted that s 91W(3) has two cumulative limbs. Here, the Authority was not satisfied that the first limb was satisfied, which requires consideration of whether the first applicant failed to comply with the request under s 91W(1) and, if so, whether he has a reasonable explanation for that failure. Counsel for the Minister submitted that, at its highest, the applicants’ ground suggests that the first applicant might have had a partially reasonable explanation, in the sense that he might have had a reasonable explanation for not having provided certain documents which he never had in the first place, but there is no reasonable explanation for not having provided any documents, which is what s 91W(3)(a) asks.
Post-hearing submissions
Both parties provided supplementary submissions in relation to ground 3 after the hearing.
The applicants submitted that the issues raised in the oral submissions advanced by Counsel for the Minister go to the construction of s 91W of the Migration Act, rather than to materiality. The applicants submitted that the construction proposed by the Minister was not the correct one and could give rise to a hypothetical scenario whereby a decision-maker could always hypothesise that there should have been a further document for which an applicant had offered no reasonable explanation for not producing until there was an endless chase to infinity. The applicants submitted that s 91W should not be held to operate in this way because it is productive of obvious unfairness and absurdity.
The applicants referred to the legislative history of s 91W and the decision of the Full Court of the Federal Court in BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97; [2017] FCAFC 72 (BGM16) to the effect that the purpose of s 91W was to permit the Minister determine the true identity, nationality and citizenship of an applicant. It is not logically right to say that identity can only be ascertained after having forensically examined every possible document which might bear on the question. The applicants submitted that once that is recognised, the Minister’s argument falls away, because while it is true that the Authority did not accept the explanations for the destruction and loss of the marriage and birth certificates, proof of the first applicant’s identity was not fatally harmed by the non-production of them. He had remaining his attempt to obtain citizenship and white card documentation, which would also have been capable of establishing his identity. It was just that he was unable to obtain such documentation from the Iranian authorities, as he explained in his statutory declaration.
The applicants submitted that the inability of the first applicant being able to produce any one particular document does not mean that other documents were incapable of establishing his identity. The November 2016 statutory declaration showed that he had at least made an attempt to prove his true identity. Therefore, the Authority would have realised that the November 2016 statutory declaration, had it been considered, went to the exculpatory provision in s 91W(3) such that the disqualifying provision in s 91W(2) could not apply.
Alternatively, the applicants submitted that the failure to consider the November 2016 statutory declaration was material because the Authority’s approach to identity and s 91W was governed by its assessment of the first applicant’s credibility. It rejected the first applicant’s explanations for not being able to produce marriage and birth certificates because it disbelieved him. It is not possible to confidently say that had the Authority appreciated that the first applicant had actually sought to obtain official documentation concerning his identity and citizenship, the Authority would still have approached the explanations about the marriage and birth certificate with the same disbelief.
The Minister submitted that the proper construction of s 91W supports his contention that, even if the Authority did not consider the applicant’s attempts to obtain a white card (which was not conceded by the Minister), that cannot have any material impact on the outcome of the Authority’s review. That is firstly because s 91W(2) requires a decision-maker to refuse to grant a protection visa if the applicant does not have a reasonable explanation for refusing or failing to comply with the request under s 91W(1). That does not invite a separate assessment of each document or potential document that might have been available to the applicant. It looks at whether the request under s 91W was complied with and, where there has been non-compliance, requires a decision-maker to determine if there has been a reasonable explanation for the refusal or failure to comply. The fact that there might be a partial explanation for not providing some documents that might have satisfied the request does not displace the absence of a reasonable explanation for not providing all documents that might have satisfied the request.
The second reason advanced by the Minister is that the proper construction of s 91W(3) does not produce any contrary result. The Authority did not consider that there was a reasonable explanation for the first applicant’s failure to produce the marriage and birth certificates and in those circumstances, consideration of whether he had a reasonable explanation for not producing a white card could have made no difference to the Authority’s conclusion about s 91W(3)(a). Therefore, even if the Authority did not consider the first applicant’s explanation relating to why he did not produce a white card, the Authority’s failure to consider that explanation could not have had any material effect on its conclusions about the operation of s 91W(2)(c) and (3)(a) of the Migration Act.
The Minister further submitted that the legislative changes introducing the current version of s 91W also introduced s 5AAA of the Migration Act which shows that Parliament sought to amend the Migration Act in a way that makes it clear that the onus was always on an applicant for a protection visa to provide sufficient evidence to support his or her claims.
Resolution
It is convenient to commence consideration of this ground by addressing the proper construction of s 91W of the Migration Act. While both parties have made submissions as to the proper construction of this section, neither party has referred me to any authorities evidencing judicial consideration of the construction of s 91W of the Migration Act.
Taking into account the text, context and purpose of s 91W of the Migration Act, I accept that the construction advanced on behalf the Minister is the correct construction.
To start with, I accept both parties’ submissions, based on BGM16, as to the purpose of s 91W. The applicants particularly relied on the description of Siopis J at [7] that the purpose of the provision was to permit the Minister to determine ‘the true identity, nationality and citizenship of the applicant’. The Minister particularly relied on paragraph [63], which was also referred to in the applicants’ submissions, where Mortimer and Whitney JJ said:
… an individual’s identity, nationality and citizenship are critical in the assessment of a protection visa application. This information goes to the fundamentals of the decision-making process, such as the country of nationality against which a person’s claims are to be assessed. This information will often go to the core of an applicant’s claims, because who a person is and where she or he comes from are integral aspects of why she or he claims to have a well-founded fear of persecution, or to fear significant harm for the purposes of complementary protection. Finally, whether an individual’s claims are accepted as credible will often depend on the decision-maker being satisfied of a person’s true identity.
Both parties accepted that s 91W is not confined to allowing the Minister to request only specific documents but rather allows the Minister to request that an applicant provide documents falling into the broad category of documents that show the applicant’s identity, nationality or citizenship.
Once a decision-maker is satisfied that there has been has been a request issued under s 91W and an applicant has failed to comply with that request, to determine whether the grant of a protection visa is prohibited under s 91W(2), amongst other things, the decision-maker must determine whether the applicant has offered a reasonable explanation for failing to comply with the request. That question is relevant to both s 91W(2)(c) and (3)(a).
Precisely what amounts to a reasonable explanation and what documents an applicant might reasonably have been expected to produce will necessarily turn on the specific facts of the case being considered. In the present case, the approach of the Authority was to focus on the documents that the first applicant claimed to have once been in possession of, and to consider whether he had a reasonable explanation for not producing those documents. There is no error in this approach.
Once the Authority was satisfied that the first applicant did not have a reasonable explanation for failing to produce the documents that, on his own evidence, he once held, it is difficult to see how the applicant could have a reasonable explanation for failing to comply with the request under s 91W at all.
The applicants’ proposed construction, which would allow an applicant to meet the exception to s 91W(2) if they had a reasonable excuse for failing to produce just one specific document or type of document, would appear to be contrary to the purposes of s 91W as accepted by both parties. For example, an applicant who had documents available to him or her relating to his or her identity, nationality or citizenship, but who for some reason did not wish to provide these documents to the Minister, might on the applicants’ proposed construction, be able to avoid the consequences of not producing any documents in response to a request under s 91W(1) by simply showing that they had a reasonable explanation for not providing one particular type of document, such as by explaining that they never applied for a passport, or that their passport was taken from them by people smugglers. Such an approach would deny the Minister the opportunity that would otherwise be available to properly establish an applicant’s identity and properly assess their claims for protection.
I do not consider that the applicants’ concerns about a hypothetical decision-maker always requiring an explanation for one further document would be likely to eventuate. While it would be reasonable for a decision-maker to explore with an applicant all types of documents that they might have held or might be able to access, the concept of a ‘reasonable’ explanation requires that there be some limit.
Given that the requirements of s 91W(3)(a) and (b) are cumulative, if the decision-maker is not satisfied that the applicant has a reasonable explanation for not complying with the request under s 91W(1) for the purposes of s 91W(3)(a), it is not then necessary for the decision-maker to be satisfied that the requirements of s 91W(3)(b) are met, although I accept that there may be some cases in which matters relevant to s 91W(3)(b) may also inform the assessment of s 91W(3)(a).
Turning then to the facts of the present case, as mentioned above, in my view the Authority’s finding that the first applicant did not have a reasonable explanation for failing to produce the documents relating to his identity, nationality or citizenship that were once in his possession meant that it could not be satisfied that he had a reasonable explanation for failing to comply with the request under s 91W, even if he could have provided a reasonable explanation as to why there were some types of identity documents that he never held.
In those circumstances, the failure of the Authority to refer to the November 2016 statutory declaration in its consideration of whether the first applicant had a reasonable explanation for not complying with the request under s 91W(1) of the Migration Act does not support a finding that it failed to consider that evidence, particularly in circumstances where it otherwise demonstrated its awareness of the evidence by referring to it at [9]. Rather, the failure to specifically refer to the November 2016 statutory declaration in its reasons at [30] and [31] more accurately reflects an assessment that the content of that statutory declaration was not material to its findings in those paragraphs: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47]. As acknowledged by the Minister in his submissions, the Authority was not required to give a line-by-line refutation of the evidence.
I therefore do not find that the Authority failed to consider relevant evidence. In circumstances where I have found that there is no error in the approach of the Authority, it is not necessary to consider materiality.
Ground 3 is not established.
Conclusion
The applicants have not established that the Authority decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 March 2023
SCHEDULE OF PARTIES
MLG 1882 of 2017 Applicants
Fourth Applicant:
DXL17, BY HER LITIGATION GUARDIAN, DXG17
Fifth Applicant:
DXM17, BY HIS LITIGATION GUARDIAN, DXG17
0
10
0