EFY19 and Anor v Minister For Immigration and EID19 v Minister For Immigration and EDD19 v Minister For Immigration and EFU19 and Anor v Minister For Immigration

[2020] FCCA 1843

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFY19 & ANOR v MINISTER FOR IMMIGRATION and EID19 v MINISTER FOR IMMIGRATION and EDD19 v MINISTER FOR IMMIGRATION and EFU19 & ANOR v MINISTER FOR IMMIGRATION [2020] FCCA 1843

Catchwords:
MIGRATION – Protection Visa Application – Excluded Fast Track Review Applicants’ – Whether the delegate failed to properly consider country information that was before it about the operation of Iranian citizenship laws, in forming opinion that the applicant was covered by s.91N(1) of the Migration Act 1958 (Cth) for the purpose of determining that the Applicant was an “Excluded Fast Track Applicant’ within the meaning of s.5(1)(a)(i) of the Act – Article 989 of the Iranian civil code of the Islamic Republic of Iran – Mansour Farrokhi Article – The Court considers the delegates decision that the applicants’ hold dual Iraqi/Iranian citizenship, to be affected by jurisdictional error – The application is upheld.

Legislation:

Migration Act 1958 (Cth), ss.5, 91N, 476

Cases cited:

BIL17 v Minister for Immigration and Border Protection (2019) 268 FCR 114

FER17 v Minister for Immigration Citizenship and Multicultural Affairs and

Anor (2019) 269 FCR 580

First Applicant: EFY19

Second Applicant: EFZ19

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 2794 of 2019

Applicant: EID19

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 2840 of 2019

Applicant: EDD19

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 2737 of 2019

First Applicant: EFU19

Second Applicant: EFW19

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 2792 of 2019

Judgment of: Judge Humphreys

Hearing date: 7 July 2020

Date of Last Submission: 7 July 2020

Delivered at: Parramatta

Delivered on: 14 July 2020

REPRESENTATION

Counsel for the Applicants’: Ms Yu

Counsel for the Respondent: Ms Hooper

Solicitors for the Respondent: Sparke Helmore Lawyers

ORDERS

IN PROCEEDINGS SYG 2794 of 2019

1. The Amended Application is allowed.

2. The decision of the delegate of the Respondent that the Applicant was an “Excluded Fast Track Review Applicant” dated 4 October 2019, be quashed.

3. A writ of mandamus issue requiring the Respondent to reconsider according to law the question of whether the Applicants were “Excluded Fast Track Review Applicant”.

4. The Respondent to pay the Applicant’s costs fixed in the amount of $2000.

IN PROCEEDINGS SYG 2840 of 2019

1. The Amended Application is allowed.

2. The decision of the delegate of the Respondent that the Applicant was an “Excluded Fast Track Review Applicant” dated 4 October 2019, be quashed.

3. A writ of mandamus issue requiring the Respondent to reconsider according to law the question of whether the Applicant was an “Excluded Fast Track Review Applicant”.

4. The Respondent to pay the Applicant’s costs fixed in the amount of $2000.

IN PROCEEDINGS SYG 2737 of 2019

1. The Amended Application is allowed.

2. The decision of the delegate of the Respondent that the Applicant was an “Excluded Fast Track Review Applicant” dated 4 October 2019, be quashed.

3. A writ of mandamus issue requiring the Respondent to reconsider according to law the question of whether the Applicant was an “Excluded Fast Track Review Applicant”.

4. The Respondent to pay the Applicant’s costs fixed in the amount of $2000.

IN PROCEEDINGS SYG 2792 of 2019

1. The Amended Application is allowed.

2. The decision of the delegate of the Respondent that the Applicant was an “Excluded Fast Track Review Applicant” dated 4 October 2019, be quashed.

3. A writ of mandamus issue requiring the Respondent to reconsider according to law the question of whether the Applicant was an “Excluded Fast Track Review Applicant”.

4. The Respondent to pay the Applicant’s costs fixed in the amount of $2000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2794 of 2019

EFY19

First Applicant

EFZ19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

SYG 2840 of 2019

EID19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

SYG 2737 of 2019

EDD19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

SYG 2792 of 2019

EFU19

First Applicant

EFW19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants’ are part of an extended family group.

2. EFY19 is the male family head. EFZ19 is the female family head. EDD19 is their son. They also have 2 daughters, EID19 and EFU19. EFW19 is the son of EFU19, and her former husband.

3. All of the applicants’ arrived in Australia as unauthorised maritime arrivals on 13 July 2013.

4. On 13 September 2017, EFY19 and EFZ19 lodged an application for an XD-785 Temporary Protection Visa (TPV). A delegate of the Minister for Immigration (“the delegate”) refused the applications on 4 October 2019.

5. On 31 May 2018, EDD19, EID19, EFU19 and EFW19 lodged applications for an XD-785 Temporary Protections Visa (TPV). On 4 October 2019, the delegate refused each of the applicants’ a protection visa.

6. In the decision, the delegate found that each applicant held dual Iraqi and Iranian nationality. As a result, the delegate applied s 91N and s 5(1)(a) of the Migration Act1958 (Cth) (“the Act”), to find that they were all ‘Excluded Fast Track Review Applicants’.

7. Accordingly, the applicants’ were not entitled to be referred for merits review to the Immigration Assessment Authority.

8. The applicants’ now seek judicial review of the delegate’s decision.

9. Each matter is being heard together by consent, as the applicants’ are jointly represented and the grounds of the application are the same, as set out below.

The Delegate’s Decision

1. Given the narrow compass of the ground of appeal, which is set out below, it is not necessary to summarise the entirety of the delegate’s decision, in relation to each applicant. The reasoning of the delegate was the same in relation to each applicant, in regards to their dual Iranian/Iraqi nationality.

2. At Part 4 of the delegate’s decision, the identity of the applicants’ are accepted, as claimed. Documents produced by the applicants’ included copies of Iraqi Nationality Personal ID cards. The family heads, EFY19 and EFZ19, are of Kurdish ethnicity. They obtained Iraqi citizenship at birth. They were stripped of their Iraqi citizenship in 1980 and expelled to Iran. The family obtained Iranian citizenship documents in about 1990, after the father paid a large amount of money to an Iranian official. The father returned to Iraq in 2003 to try to regain Iraqi nationality. The father was able to acquire Iraqi citizenship documents for the family in around 2008.

3. The family departed Iran on genuine Iranian passports. Those passports were disposed of during travel to Australia. The family’s Iranian citizenship documents were confiscated by Iranian authorities when the applicant’s sister-in-law, tried to mail them to the applicant father in Australia. The applicants’ claim that the confiscation of the family’s Iranian documents, means that they have been stripped of their Iranian citizenship.

4. At paragraph 44 of the delegate’s decision, it is noted that Iraq recognises dual citizenship, but Iran does not. At paragraph 46 of the decision, the delegate notes that under Article 41 of the Iranian Constitution, the Iranian Government cannot withdraw citizenship from any Iranian citizen unless he/she himself requests it, or acquires the citizenship of another country. Citizenship can be withdrawn from persons if another state accepts them as its citizens, or they request it.

5. In a paper relating to the non-recognition of dual citizenship in Iranian law, Mansour Farrokhi, Assistant Professor of the Hormozgan University, noted that, pursuant to both articles 41 and 42 of the Iranian Constitution, Iranian citizenship will be withdrawn from an Iranian subject, if he/she acquires the citizenship of another state. It means that one’s acquisition of a foreign nationality, will amount to his/her deprivation of Iranian citizenship.

6. The delegate noted that two considerations must be taken into account. First, the existence of all conditions stipulated by law and second, the Iranian Government’s approval to the applicant’s request for the renunciation of nationality. Professor Farrokhi further noted that a focal point, is that though the article describes the foreign nationality as null and void, it simply means that such a nationality cannot be revoked by Iranian authorities and it is by no means, equivalent to the invalidity of the nationality because such a nationality, is considered as a valid by the foreign country, which has naturalised the person. Another way of explaining this, is that while an Iranian citizen’s foreign nationality may still be valid in the eyes of the second country, Iranian authorities will consider this second citizenship as not existing and that they are solely Iranian citizens.

7. At paragraph 48 of the delegate’s decision, it was noted that the applicants’ have never applied for or held Iraqi passports and have always travelled on the Iranian passports when departing and returning to Iran. EFY19 also stated that he and his family members had not applied to have their Iranian citizenship revoked.

8. Accordingly, the delegate determined that the applicants’ were dual citizens of Iraq and Iran.

Grounds of Appeal

1. In an Amended Application filed on 2 March 2020, each of the applicants’ relies upon the following ground:

   Ground One

   The Respondent’s delegate (the delegate) failed to properly consider country information that was before it about the operation of Iranian citizenship laws, in forming the opinion that the applicant was covered by s.91N(1) of the Migration Act 1958 (Cth) for the purpose of determining that the Applicant was an “Excluded Fast Track Applicant’ within the meaning of s.5(1)(a)(i) of the Act.

   Particulars

   a.   At [43]-[49] of the delegate’s decision (CB 200-201) the delegate found that the First Applicant was a dual national of Iran and Iraq for reasons including that the First Applicant had never applied to have their Iranian citizenship revoked. In doing so, the delegate relied on country information cited as ‘CISEC96CF13283: “Non—Recognition of dual citizenship in Iranian Law: A Compendious Survey of Statutory Law” Centre for Promoting Ideas (CPI) USA, 1 April 2015’ (the Farrokhi article).

   b. As a consequence of making the finding above at (a), the delegate found at [150] – [157] of its decision that s.91N(1) of the Act applied to the First and Second Applicants (CB215-216). By reason of this, the delegate found that both applicants were “Excluded Fast Track Applicants’” as defined in s.5(1) of the Act.

   c.   In making the finding stated above at(a)-(b) , the delegate did not properly consider other relevant parts of the Farrokhi article which indicate that the operation of Iranian law is such that it would not be possible for the Applicant to be both a national of Iran and Iraq. Namely:

   i.that in accordance with Articles 41 and 42 of the Iranian Constitution, one’s Iranians citizenship will be withdrawn by the Government if he/she acquires foreign citizenship (pp160, 163 Farrokhi Article);

   ii.That Article 989 of the Iranian Civil Code provides that ‘ Every Iranian subject acquiring foreign citizenship after solar year1280 (1901) without the observance of the provisions of law, his/ her foreign citizenship will be considered null and void and he/she will be regarded as an Iranian subject” ( pp 162-163 Farrokhi Article);

   iii.That although there are differences in the interpretations of the Note to Article 989, the general approach of Iranian private international law is such that dual nationality is not accepted (p163 Farrokhi Article);

   iv.That the general rule that every inhabitant of Iran is considered an Iranian subject will not apply to persons whose foreign citizenship is certain and indisputable(p163 Farrokhi Article); and

   v.That those who are born in Iran and are qualified to acquire Iranian citizenship will only be granted Iranian nationality if they abandon their patrilineal citizenship (p163 Farrokhi Article)

   d. The delegate’s failure to properly consider the matters set out in (c) was material to its conclusion that the applicants were Excluded Fast Track Applicants as defined in s.5(1) of the Act. The applicants were denied the opportunity to seek review under part 7AA of the Act by the reason of the fact that the delegate found them to be Excluded Fast Track Applicants. Consequently, the delegate’s decision was affected by jurisdictional error.

The Applicants’ Submissions

1. In submissions, Counsel for the applicants’ sets out [43] - [49] of the delegate’s decision. It was noted that having purported to find that each of the applicants’ was a dual national of Iran and Iraq, the delegate went on to find at [150] - [157] of the decision, that s 91N(1) of the Act applied to the applicants’ and that they were thus ‘Excluded Fast Track Review Applicants’, as defined in s 5(1) of the Act.

2. Counsel for the applicants’ contends that a proper reading of the Farrokhi article and a proper understanding of the operation of an Iranian citizenship laws, is such that the applicants’ are not necessarily dual nationals. If this is the case, then the applicants’ are not ‘Excluded Fast Track Review Applicants’ and were entitled to a merits review, at the Immigration Assessment Authority.

3. It was submitted by Counsel for the applicants’ that where a decision-maker fails to pay attention to relevant country information and instead, effectively takes a selective reading of the country information, by focusing on aspects that were peripheral or irrelevant to the claims made by the applicants’, this constitutes jurisdictional error: (see BIL17 v Minister for Immigration and Border Protection (2019) 268 FCR 114 (“BIL17”) at [62]-[64]). In this case, it was submitted that the delegate took a selective reading of relevant country information that supported the fact that the applicants’ held dual nationality. A failure to take into account relevant information constitutes jurisdictional error.

4. Counsel for the applicants’ submitted that in accordance with Article 41and 42 of the Iranian Constitution, one’s Iranian citizenship will be withdrawn by the government if a citizen acquires foreign citizenship (see p 160, 163 Farrokhi article). It is noted that Article 989 of the Iranian civil code of the Islamic Republic of Iran (“Article 989”) provides that

   “every Iranian subject acquiring foreign citizenship after solar year 1280 (1901) without observance of the provisions of law, his or her foreign citizenship will be considered null and void and he/she will be regarded as an Iranian subject” (see p162-163 Farrokhi article).

5. Although there are differences in the interpretations of the note to Article 989, the general approach of Iranian Private International Law, is that such dual nationality is not accepted (see p163 Farrokhi article). It is a general rule that every inhabitant of Iran is considered an Iranian subject however, this will not apply to persons whose dual citizenship is certain and indisputable (see p163 Farrokhi article). Further, those who are born in Iran and are qualified to acquire Iranian citizenship, will only be granted Iranian nationality if they abandon their patrilineal citizenship (see p 163 Farrokhi article).

6. It is submitted by Counsel for the applicants’ that there is significant doubt as to whether or not the applicants’ have dual Iraqi/Iranian citizenship. It is clear that if an Iranian citizen acquires foreign citizenship, that Iranian citizenship will be withdrawn by the Government, pursuant to articles 41 and 42 of the Iranian Constitution. It was submitted by Counsel for the applicants’ that the delegate made no assessment of whether the applicants’ would be caught by these provisions, given that the applicants’ claim to have reacquired Iraqi citizenship after obtaining Iranian citizenship and returning to Iraq post 2003.

7. It is possible that the Iranian authorities would not recognise the applicants’ Iraqi citizenship, but this is by no means certain. The delegate made no finding in this regard. The delegate accepted, based on the applicants’ Iraqi documentation, that they were Iraqi citizens. If this was viewed by Iranian authorities as certain and indisputable, then this would displace the applicants’ Iranian citizenship.

8. In these circumstances, the delegate’s finding that the applicants’ were caught by s 91N(1) of the Act and were ‘Excluded Fast Track Review Applicants’, within the meaning set out in s 5(1) of the Act cannot stand, as the delegate did not first properly engage with the content and operation of Iranian citizenship laws.

9. This error was material to the outcome of the delegate’s decision, as it resulted in the applicants’ being denied the opportunity to have the decision to refuse their applications’ reviewed by the Immigration Assessment Authority. Counsel for the applicants’ submits that this constitutes jurisdictional error.

The Respondent’s Submissions

1. Counsel for the respondent submitted that the delegate did not fail to consider country information. It is further submitted that the delegate did not misconstrue the Farrokhi article, to the extent that the article did not reflect the terms of the applicable Iranian legislation. The delegate proceeded by reference, to the relevant Iranian legislation as required by s 91N(6) of the Act.

2. In particular, it was noted that the Department of Foreign Affairs and Trade stated in December 2001, that Article 989 stipulated that Iranian citizens could not acquire a foreign nationality and that if they did so without first renouncing their Iranian citizenship, then “their foreign nationality will be considered null and void and they will be considered Iranian citizens”.

3. The delegate was required to determine the applicants’ nationality or nationalities, by reference to the provisions of applicable Iranian law. Although the Authority noted that Iranian citizenship will be withdrawn from an Iranian national, if that person acquires foreign citizenship, the relevant articles of the Iranian law set out at page 160.6, merely indicate that Iranian authorities can withdraw Iranian nationality in such circumstances. Articles 41 and 42 of the Iranian Constitution do not indicate that withdrawal is automatic or mandatory.

4. It was submitted by Counsel for the respondent that the delegate was not able to be affirmatively satisfied that Iranian authorities knew of, or recognised the applicants’ Iraqi citizenship. Therefore, the applicants’ did not fall within the category of a person or persons’ whose foreign citizenship was indisputable, from the perspective of the Iranian authorities.

5. It was submitted by Counsel for the respondent that even in circumstances where the Iranian authorities became aware that a person may have foreign citizenship, that citizenship will be considered null and void by Iranian authorities. It is submitted that there was no evidence that any of the applicants’ had lost one or other of their nationalities.

6. Counsel for the respondent emphasised that it was not the role of the Court to review the factual finding made by the delegate that the applicants’ held dual nationality. Counsel for the respondent emphasised further that the Court could only quash the decision if it was satisfied that it was legally unreasonable, to have made the finding that the applicants’ were dual nationals. This is a stringent test that will occur rarely.

Consideration

1. It is common ground between the parties that the applicants’ initially had Iraqi citizenship, but as a result of their expulsion from Iraq to Iran, the family gained Iranian citizenship after the payment of a large sum of money by the applicant father. It is also not contested that in about 2008, the applicant father re-entered Iraq and was able to obtain Iraqi citizenship papers for each member of the family.

2. When the applicants’ left Iran, they did so legally on Iranian passports. The applicants’ disposed of these documents either prior to, or during their voyage to Australia. The applicants’ claim that their Iranian citizenship documents were confiscated by Iranian authorities, when the applicants’ aunt attempted to mail them to the applicants’ in Australia. This was not conceded as a fact by Counsel for the respondent. It is accepted however, that the applicants’ have been able to provide documentary evidence of Iraqi citizenship.

3. Firstly the Court is satisfied and it is not disputed by either party, that as each of the applicants’ has been classified as an ‘Excluded Fast Track Review Applicant’, pursuant to s 91N of the Act, the Court has jurisdiction to hear any appeal against the delegate’s decision under

   
   

   s 476(1) of the Act.

4. The sole issue agitated in the matter, is whether there has been jurisdictional error by the delegate, in correctly classifying each of the applicants’ having dual Iraqi/Iranian citizenship. The Court is of the view that if this is the case, the error is material in that, as a result of this classification, the applicants’ have been denied the opportunity of merits review by the Immigration Assessment Authority. The application of wrong law (see FER17 v Minister for Immigration Citizenship and Multicultural Affairs and Anor (2019) 269 FCR 580).

5. The applicants’ assert that they are of the view that Iranian Authorities are aware of the applicants’ being in Australia and presumably making a refugee claim. The applicants’ assert that this is likely a result of Iranian Authorities having seized the applicant’s Iranian citizenship documents.

6. Of course, the most convenient manner of determining if Iranian authorities have cancelled the applicants’ Iranian citizenship, as a result of regaining Iraqi citizenship, would be to make inquiries of Iranian authorities. This has not and cannot occur for obvious reasons associated with the refugee claim being made in Australia. Instead, the delegate has relied upon relevant provisions of the Iranian Constitution, as well as a learned article by Professor Farrokhi which discusses these issues.

7. Whilst the Court accepts it is a possibility that Iranian authorities will treat the applicant’s Iraqi citizenship as ‘null and void’, the claim of the applicants’ that their Iranian citizenship papers have been confiscated by Iranian Authorities, stands unanswered. The Court therefore cannot be certain that the applicants’ have not had their Iranian citizenship withdrawn.

8. While the Farrokhi article discusses what the usual practice in Iran is, in regards the recognition of dual nationality by Iranian Authorities, this does not mean that this practice is always followed in every case, or indeed is the situation in this case.

9. Country information relied upon by the delegate indicates at [1.39.4] that the Iranian judicial and government administrative system, is affected by corruption, religious prejudice, cronyism, and political partisanship. The same country information at [2.1.2] indicates that there is a degree of official discrimination against Sunni minorities such as Baluchis and Kurds, on account of suspicions about political affiliations and activities. It appears that legal norms and processes appear to be flexible in Iran. This information does not appear to have been addressed by the delegate at any point in their consideration, as to whether the applicants’ may have been stripped of their Iranian citizenship.

10. In BIL17 at [62] - [64] Griffiths, Gleeson and Colvin JJ found that if the pathway adopted by the Tribunal did not pay attention to relevant country information, then there had not been the requisite statutory review.

    [63] … The active intellectual engagement has been misdirected in a way that has resulted in a failure to undertake the review that was invited by the nature of the claim advanced and the material before the Tribunal concerning that claim. By focusing upon aspects of the country information that were peripheral or irrelevant, the Tribunal has not dealt with the country information germane to the nature of the claim advanced.

11. In the Court’s view, the delegate dealt with the available country information in a manner that did not effectively come to grips with the applicants’ claims that they may have been stripped of the Iranian nationality, due to them holding Iraqi citizenship. At no point did the delegate deal with the lack of transparency of the Iranian administrative or legal system given that the country information is less than complimentary of it. The delegate did not deal with the information that Kurds are actively discriminated against and viewed with suspicion by Iranian authorities.

12. This country information supports the possibility that the applicants may have been stripped of their Iranian citizenship, without reference to the usual policies and procedures outlined by Professor Farrokhi in his article. Given the realistic existence of this possibility, the Court considers that the delegates decision that the applicants’ hold dual Iraqi/Iranian citizenship, is affected by jurisdictional error.

Conclusion

1. Accordingly, the application is upheld.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 14 July 2020