EWP17 v Minister for Immigration

[2018] FCCA 2133

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2133

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered an integer of the applicant’s claim.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CB, 473DD

Cases cited:

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

Minister for Immigration v DDK16 [2017] FCAFC 188

Applicant: EWP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1077 of 2017

Judgment of: Judge Jarrett

Hearing date: 1 June 2018

Date of Last Submission: 1 June 2018

Delivered at: Brisbane

Delivered on: 6 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Stolar Law

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. A writ of certiorari is issued calling up the record of the second respondent and quashing the decision dated 29 September, 2017.

2. A writ of mandamus is issued requiring the second respondent to determine the review according to law.

3. The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1077 of 2018

EWP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 29 September, 2017.  That decision affirmed a decision of a delegate of the first respondent made on 8 November, 2016 to refuse to grant a Safe Haven Enterprise (Class XE) (Subclass 790) visa to the applicant.

2. The applicant contends that the second respondent did not consider certain aspects of his claim appropriately.  The first respondent opposes the application and contends that the decision under review is not affected by jurisdictional error.  The second respondent enters a submitting appearance.

3. For the reasons that follow, I consider that the second respondent’s decision is affected by jurisdictional error and the applicant should have the relief that he seeks.

Background

1. The applicant is a citizen of Iran.   He is of Kurdish ethnicity and is a non-practicing Shia Muslim.  The applicant was born and raised in a province of Iran which borders on Iraq.  The applicant’s parents and seven of his adult siblings remain resident in this province.

2. One of the applicant’s brothers and his family are now resident in Germany, having travelled there as asylum seekers.  The applicant left Iran and travelled on his Iranian passport to Indonesia.  He then travelled by boat to Christmas Island in February, 2013.  He arrived on Christmas Island as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) on 6 March, 2013.

3. On 11 January, 2016 the applicant was invited to lodge an application for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise visa.  He chose the latter and applied for the visa on 19 April, 2016.  His application was accompanied by a statutory declaration dated 19 April, 2016.

4. On 11 October, 2016 the applicant attended an interview with a delegate of the first respondent. On 31 October, 2016 the applicant’s representative provided a post-interview written submission.

5. On 8 November, 2016 the delegate refused to grant the applicant a visa.

6. The delegate’s decision was referred to the second respondent for review. On 5 January, 2017 the applicant’s representative provided the second respondent with a further statutory declaration by the applicant.  The second respondent took some of that information into account, but not all out it.  It decided that while, in part, the statutory declaration raised a new claim that the applicant’s brother-in-law had started spreading rumours amongst his relatives about the applicant, that claim was relevant to its assessment and purportedly occurred after the delegate’s decision such that he could not have provided the information earlier and there were exceptional circumstances to justify considering it.  Thus, the general prohibition against the second respondent considering new information as provided for in s.473DD of the Act did not apply to that information.

7. On 18 January, 2017 the second respondent affirmed the delegate’s decision.

8. The applicant filed an application to show cause in this Court (BRG160/2017).  On 31 July, 2017 a judge of this court made orders, by consent, remitting the matter to the second respondent for reconsideration.

9. On 29 September, 2017 the second respondent again affirmed the delegate’s decision.  This is the decision presently under review.

10. The second respondent’s reasons for decision demonstrate that the second respondent considered the information referred to it by the Secretary of the first respondent’s department pursuant to s.473CB of the Act. The applicant does not suggest that the second respondent did not understand the applicant’s claims. It set them out as follows:

    ·He is an Iranian national of Kurdish ethnicity from Illam Province.

    ·He was discriminated against because of his Kurdish ethnicity.

    ·His father’s cousin (Abdollah) was involved in political activities and was imprisoned in 2002 for about eight years and eventually died in prison.

    ·His father was outspoken against the regime and was detained many times and he and two of his siblings suffered the consequence of this. Between 2002 and 2004, when transporting fruit and vegetables for his business, he was harassed by the Basij which insisted on searching his load and he eventually had to stop this trade.

    ·In 2009 during an anti -government protest being held in Illam, he was shot in the right knee but could not seek professional medical attention due to fear from the authorities.

    ·In 2012, he supported his sister and helped her seek legal advice in relation to obtaining a divorce, and this caused a conflict between the applicant and his brother -in-law, Hojjat. The applicant fled Iran because Hojjat threatened to report to the authorities that the applicant had been shot in the protest. After the applicant’s departure from Iran, Hojjat did lodge such a complaint with the authorities. Hojjat has recently started spreading rumours amongst relatives that the applicant has joined Kurdish activist groups in Australia and that he has changed his religion and wants to be a refugee in Australia to fight against the Iranian regime.

    ·His family has been questioned twice about his whereabouts since he left Iran and his father has been interrogated about how he helped the applicant leave the country.

    ·He was born into a Shia family but does not practise Islam or any other religion but believes in God. He has spoken publicly about his religious views to his friends and family and fears he will face serious problems on return to Iran for this reason.

    ·He has gone to church and has associated with Christian people in Australia who share their photos and stories of church on Facebook. He could easily be accused of converting to Christianity and punished for apostasy or Moharebeh.

    ·He fears being persecuted on return to Iran for being a failed asylum seeker from a western country.

11. The second respondent harboured significant concerns about the credibility of aspects of the applicant’s claims as a result of a number of inconsistencies in his evidence and the implausibility of parts of his claims.  On the evidence before it, it was satisfied that the applicant had exaggerated or fabricated the majority of his claims for protection.  The second respondent said:

    12.    I have significant concerns about the credibility of aspects of the applicant’s claims as a result of a number of inconsistencies in his evidence and the plausibility of parts of his claims. In particular I have concerns about how the applicant claims to have been affected by his father’s political opinion against the Iranian regime, the circumstances in which he was shot in the leg, the claims he has made in regards to threats from his brother-in-law and new claims he has raised in regards to attending church in Australia. On the evidence before me I am satisfied that the applicant has exaggerated or fabricated the majority of his claims for protection.

12. Notwithstanding that, the second respondent accepted various parts of the applicant’s claims and evidence.  For example, the second respondent:

    a)accepted the applicant’s claim that his father’s cousin was involved in political activities and was imprisoned for about eight years in 2002 and eventually died in prison.  However, the applicant had not claimed to be of any adverse interest to the Iranian authorities because of his father’s cousin’s political activities and arrest.  The second respondent was not satisfied on the evidence that he faced a real chance of harm in this respect;

    b)accepted that the applicant’s father disliked the Iranian regime, would shout profanities about it whenever he could and was detained on occasion for his political outspokenness but only for a few hours or a day because of his age and lack of literacy.  However, the second respondent was not satisfied with the applicant’s explanation as to why only he and his two other siblings were impacted by their father’s political outspokenness and did not accept that he or his two siblings had or would be harassed, impacted or imputed to be against the Iranian regime as a result of their father’s political outspokenness, even if it continued in the future;

    c)accepted that during his work transporting fruit and vegetables between 2002 and 2004, the applicant was stopped regularly by the Basij but was not satisfied he was specifically targeted for any reason (including his Kurdish ethnicity) or faced a real chance of harm because of this;

    d)accepted that the applicant had a bullet injury in his right knee but did not accept that he received the injury during an anti-government protest in 2009.  It found he received the injury near the border of Iran and Iraq while he was undertaking illegal work trying to purchase goods.  The second respondent was not satisfied on the evidence that the Iranian authorities identified him during that incident or afterwards and was not satisfied there was a real chance they would become aware of it or be of adverse interest to them because of the nature of his injury.  The applicant had not claimed he would continue to do such work on return to Iran and the second respondent was not satisfied he faced a real chance of harm as a result of his prior illegal work, because he was shot by the authorities in that incident, or because he sustained a gunshot injury;

    e)accepted the applicant holds a political opinion against the Iranian regime and that he attended a protest in 2009 against the Iranian regime.  However, it was not satisfied that he was of any adverse interest to the Iranian authorities or that he faces a real chance of harm on return to Iran because of this.  The second respondent was not satisfied on the evidence the applicant engaged in any public political activities against the Iranian regime in Australia nor that attending one protest in 2009 is indicative of someone who intends to speak openly or engage in public political activities on return to Iran, finding he would not do so due to lack of interest rather than fear of persecution; and

    f)accepted that the applicant was born into a Shia Muslim family but does not believe in Islam and does not practice any religion and has been more open about his beliefs since arriving in Australia.  However, the applicant gave evidence that he only spoke to his family and like-minded people among his friends about his beliefs, and the second respondent was not satisfied there is a real chance they would inform on him to the authorities.  The second respondent was not satisfied his non-belief would come to the attention of the community or Iranian authorities on the basis of his lack of public manifestation of Shia faith.  The second respondent was also not satisfied that he is committed to publicly promoting his religious views as it was not satisfied he has a genuine desire to do so beyond his family and friends.  The second respondent was not satisfied he faced a real chance of harm because he does not believe in Islam and/or has no religion, has expressed his religious views to his family and friends, because he is identifiable in his friends’ Facebook pages, or has Christian friends.

13. The second respondent did not accept that the applicant’s brother-in-law threatened to report to the Iranian authorities that he was shot during the protest in 2009, or that he did in fact do so, or that he recently spread rumours about the applicant to his relatives.  The second respondent did not accept the applicant’s claims that the authorities had come looking for him at his home since he left Iran or interrogated his father about him.  Although the second respondent accepted that the applicant supported his sister’s divorce, it was not satisfied he faced a real chance of harm as a result, even if he continues to support the divorce.

14. As to his claim to fear harm by reason of being a failed asylum seeker, the second respondent was not satisfied that the Iranian authorities imputed failed asylum seekers from western countries with anti-regime, western sympathiser or anti-government opinion, or that the applicant would be imputed with such an opinion. It did not think that he would be accused of being involved in politics due to the combination of his Kurdish ethnicity and being a failed asylum seeker from a western country.  The second respondent was satisfied the applicant did not have a profile that would attract the attention of authorities on return.  It was not satisfied that there was a real chance Iranian spies or other asylum seekers had or would provide information to the authorities about the applicant.

15. The second respondent accepted the applicant left Iran legally but would likely return on a temporary travel document.  It found that even if it accepted that he would be questioned on return, it was not satisfied there was a real chance he would be questioned about why he left Iran, what he told the Australian authorities, his refugee claims, his activities in Australia or that he would be forced to sign into his Facebook account.  In any event, it did not consider that the applicant being questioned upon his return would amount to serious harm.  It was also not satisfied he would face a real chance of being harmed during any such questioning.

16. In the circumstances, the second respondent was not satisfied that the applicant faced a real chance of serious harm such that he did not meet the criterion of s.36(2)(a) of the Act. Nor did it think that he met the complementary protection criteria set out in s.36(2)(aa) of the Act.

Grounds for review

1. Ground 1 is particularised as follows:

   1. The Applicant is a citizen of the Islamic Republic of Iran and is of Kurdish ethnicity and was born into the Shia Muslim faith.

   (a) The Applicant is no longer a practicing Muslim; and

   (b) The decision of the Second Respondent (‘the IAA’) is affected by jurisdictional error in its decision dated 29 September 2017 as it failed to take into account the cumulative effect of the Applicant’s claim that he fears harm from the Iranian authorities due to his brother-in-law reporting to the authorities the following allegations, whether true or not:

   i. The Applicant has participated in anti-government protests; and

   ii. During one rally held in 2009 in Iran, the authorities shot the Applicant through the knee; and

   iii. Since arriving in Australia, the Applicant has engaged in Kurdish political activities against the Iranian authorities; and

   iv. The Applicant is currently an apostate.

2. The applicant argues that the second respondent fell into jurisdictional error because it failed to take into account a relevant consideration, namely the effect that the allegations made by the applicant’s brother-in-law to the Iranian authorities would have upon the applicant upon his return from Australia.  He argues that in dismissing the applicant’s application the second respondent failed to consider what effect the allegations would have on the Iranian authorities, irrespective of the truth of these allegations.

3. The applicant emphasises that:

   a)the allegations place the applicant in anti-government protests he was in Iran and during one such rally regarding the price of petrol, the Iranian authorities shot the applicant causing a wound to his knee;

   b)one of the allegations is that since he has been in Australia, the applicant has been actively involved in anti-Iranian government political activities; and

   c)one of the allegations is that the applicant is an apostate.  It is alleged that he was a known non-practicing Muslim while in Iran and since being in Australia he has attended Church, although he has not converted to Christianity.  Apostasy is an offence in Iran.

4. The difficulty with this ground is the second respondent’s rejection of the applicant’s claims that his bother-in-law had made those allegations to the Iranian authorities at all.  The second respondent’s decision in this respect did not turn upon a finding that the allegations were not true.  Whether they were true or not was not to the point.  The second respondent simply was not satisfied that the applicant’s brother-in-law made the specified allegations to the Iranian authorities.  The second respondent dealt with this matter in the following way:

   30.    The applicant claims that his sister’s husband, Hojjat, accused him of not allowing Marzieh to go home and when that accusation failed in court, he made threats against him and said if he continued supporting Marzieh, he would inform the authorities that he was shot during protests and that this news had spread amongst the relatives. He claims this was the reason why he fled Iran when he did and claimed that he left Iran one or two days after Hojjat started to spread the rumours. He claims that since leaving Iran, Hojjat has reported him to the divorce court informing it that the applicant had been shot during protests in 2009.

   31.    During the protection visa interview, when the delegate asked the applicant if the authorities had come looking for him at his home since he left Iran he first replied “No I was not in Iran” but then said some people had gone to his house and had asked his father about him and his whereabouts within days or a week of his departure. He was not sure who they were and claims his father told them that he had gone to Tehran. When the delegate asked the applicant if anybody had come looking for him since that time, his first response again was “I do not know I haven’t asked” but then changed his evidence when asked again by the delegate and subsequently claimed that they had come one more time to his home and his father told them that he had gone to Indonesia. He further claimed in the interview that his father had been taken for interrogation and questioned about how he managed to help the applicant leave the country. I have considerable concerns about the credibility of these claims as the applicant appeared to formulate these new claims for the first time in the protection visa interview and have given weight to the fact that the applicant did not raise these claims in his application for protection but only when prompted by the delegate. I am satisfied the applicant fabricated these claims during the protection visa interview to strengthen his claims for protection.

   32.    In a new statutory declaration provided to the IAA the applicant now claims that after his application for protection was refused by the delegate and towards the end of 2016, his mother told him that Hojjat started spreading rumours amongst their relatives that the applicant had joined Kurdish activist groups in Australia and had changed his religion and wants to be a refugee in Australia to fight against the Iranian regime. He claims Hojjat did this to protect himself because he sees the applicant as a threat and that if the applicant returns to Iran that he will support his sister and encourage her to divorce him and he is doing everything to stop the applicant from going back to Iran and to ensure that he would be caught by the Iranian authorities upon return. Many people are naive and would believe him and gossip and rumours spread fast amongst Iranians and especially in a small city like lllam and he fears that this news will reach the Iranian authorities. He also claims that if Hojjat tried to harm him he would not receive protection from the Iran authorities because of his injury.

   33.    As I have not accepted that the applicant was in fact shot during protests in 2009, I do not accept that Hojjat threatened to report this to the Iranian authorities and that that was the reason why the applicant left Iran. The applicant claims that his sister returned to her husband shortly after he left Iran which I accept so there appears to be no reason why Hojjat would report the applicant to the authorities when he succeeded in having his wife returned to their home. I do not accept that Hojjat did in fact report this to the Iranian authorities after the applicant’s departure from Iran and recently spread rumours amongst the applicant’s relatives and that the applicant had joined Kurdish activist groups in Australia and had changed religion and wants to fight against the Iranian regime. I also do not accept that, since the applicant’s departure from Iran, the Iranian authorities or any other group approached his home twice seeking his whereabouts and interrogated his father about how he helped the applicant leave the country. I am satisfied that the applicant has fabricated these aspects of his claims.

   34.    Although I accept that the applicant supported his sister’s divorce, on the evidence before me, I do not accept that he has been threatened by Hojjat. I am not satisfied the applicant faces a real chance of harm from Hojjat or any other person or group because he supported his sister’s divorce. Even if the applicant returns to Iran and continues to encourage his sister to divorce Hojjat, I am not satisfied he faces a real chance of harm from Hojjat or any other person or group for this reason.

1. Because the second respondent dismissed each of the individual bases for establishing this claim, I accept the first respondent’s submission that as a matter of “inexorable logic”, no cumulative assessment of those rejected claims could be capable of producing a different result: Minister for Immigration v DDK16 [2017] FCAFC 188 at [34].

2. That the second respondent was not satisfied that the applicant’s brother-in-law did not make the allegations he is alleged to have made to the Iranian authorities is dispositive of this ground of review.  This ground does not demonstrate any jurisdictional error.

3. Ground 2 is in the following terms:

   The Second Respondent erred in determining whether the Applicant would face serious harm given that Department of Foreign Affairs and Trade reports state that Islamic Republic of Iran does not accept involuntary returnees.

4. It is unclear if this ground of review is directed to the applicant’s claims for protection or complementary protection.  I have considered them as claims in respect of both.

5. The applicant’s written submissions in relation to this ground are as follows (footnotes omitted):

   18. Finally, what view the Iranian authorities will take upon the Applicant’s return is unknown. Evidence before the Second Respondent supports the view, as the Applicant left Iran using a valid passport he has not committed an offence.

   Complementary protection assessment:

   19. It is submitted by the Applicant, there are substantial grounds for believing that, as a necessary and foreseeable consequence of returning the Applicant to his country of origin, there is a real risk he will suffer significant harm, in the form of ‘inhuman treatment or punishment’ or ‘degrading treatment or punishment’5 and on that basis meets the criteria for a protection visa.

6. They were not expanded upon during oral submissions.

7. The first respondent has drawn my attention to CLS15 v Federal Circuit Court of Australia [2017] FCA 577 as of potential application in this matter. As explained in the first respondent’s submissions (footnotes omitted):

   28.    In CLS15, the appellant had relevantly made a claim that ‘there is a real chance that he will be persecuted in any event if forcibly returned to Iran because he would come to the attention of Iranian authorities as a person who had made a failed claim for asylum in Australia’.

   29.    The Federal Court (Charlesworth J) found that ‘[h]is claim was clearly articulated as one based on a premise that he would be “forced” to return to Iran if he were not granted a protection visa. … His failed claim for asylum, based as it was on a claim to have converted to Christianity, would come to the authorities’ attention because of his forcible removal from Australia’: [41]. Her Honour was satisfied that the claim was advanced in respect of s 36(2)(a) and, to the extent that it was necessary to expressly articulate (which the Federal Court doubted) s 36(2)(aa): [46].

   30.    The Tribunal in CLS15 did not expressly address the appellant’s forcible return to Iran. The Minister in CLS15 argued that nonetheless ‘the Tribunal did in fact consider and determine the appellant’s claim to fear persecution or significant harm because of his status as an involuntary returnee’, in that there was an implicit finding that the appellant could not and would not be returned to Iran forcibly (based on the Tribunal’s summary of country information): [47].

   31.    After citing the authorities on making inferences regarding the Tribunal’s reasoning, the Federal Court held at [56]-[60]:

   56     In circumstances where the reasons of a decision-maker may be fairly amenable to different meanings, one of which might demonstrate error, the principles stated in WAEE and Wu Shan Liang may of course require that the reasons be interpreted beneficially, that is, in favour of validity. However, not all kinds of ambiguity are suitable for resolution by preferring one of two alternative meanings. The ambiguity may be such as to evidence confused thinking on the part of the Tribunal or to fairly indicate that the Tribunal has asked itself the wrong question. In such cases, the ambiguity should not be resolved by attributing to the Tribunal implied findings that do not naturally arise from the text of the reasons for the decision, considered in light of all of the surrounding circumstances. In some cases, the very nature of the ambiguity may prevent such an implication being made. I consider this to be such a case.

   57     The circumstance that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important. No occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily.

   …

   60     If the premise underlying the Tribunal’s reasoning in paragraph 32 is that of a voluntary return, then it has erroneously assessed a claim the appellant had not in fact made. If the premise underlying its reasoning is that of an involuntary return, then that premise is not only inconsistent with the inference the Minister seeks to have drawn from paragraph 31, but gives rise to an alternative error: the Tribunal has not dealt with the claim that the appellant would necessarily come to the attention of the authorities, not merely after his forcible return but because of the forcible return. In my opinion, neither assumed premise can be safely attributed to the Tribunal. The proper inference is that the Tribunal has engaged in confused thinking resulting in a failure to make factual findings concerning the appellant’s particular circumstances and a failure to apply the statutory criteria to the facts as found, particularly the criterion in s 36(2)(aa).

   32.    The Federal Court also held there was another reason not to make the relevant inference sought by the Minister, in that the Tribunal’s reasoning said nothing about the possible consequence of the applicant not being willing to be returned and the Iranian authorities not being willing to accept forcible returnees (i.e. indefinite detention). The Federal Court held at [62] that ‘[t]he Court should be slow to attribute to the Tribunal, by inference or implication, a finding that has or may have far reaching legal and practical consequences for the appellant. That is particularly so where the reasons for the Tribunal are not expressed in comprehensive terms.’

   33.    The Federal Court therefore held that the Tribunal had failed to consider an integer of the appellant’s claim, namely his claim to be a failed asylum seeker forcibly returned to Iran.

8. The first respondent accepts that this Court is bound by the decision in CLS15, however, argues that it is distinguishable because the applicant’s claim here is not one clearly articulated on the basis that he would be forced to return to Iran.  But in my view, that is not so.  The applicant has clearly articulated his position that he would only ever return to Iran forcibly.  He made those claims:

   a)in his statutory declaration dated 19 April, 2016 where he said:

   I will not go back to Iran voluntarily because I fear that the Ettela’at would punish me.  I fear that I will be detained, questioned and tortured on arrival at the airport …

   …

   I know that if I am forced to return to Iran I will not be able to seek help from anyone, including the authorities, Iran is an Islamic country and anyone against Islam is also considered against the Iranian authorities.  I am not able to go to any authority, such as the police, because all government agencies work in tandem and all follow the Sharia law.

   at Court Book 77 and 78 respectively

   b)in his second statutory declaration dated 5 January, 2017 where he said:

   8. In her decision, the case officer has referred to some country information she has read over the Internet. The fear I hold is a genuine fear I have experienced and know about by living in Iran. There is every chance that when I arrive at the airport in Iran (if I am forcibly returned to Iran) that I will be interrogated at the airport in Tehran. This happens to everyone who is returned.

   at Court Book 165.

9. There is nothing to suggest that the applicant would return to Iran voluntarily. Contrary to the first respondent’s submissions, nowhere did the applicant raise the issue of his agreeing to return to Iran.  His case was always that if he was to return, he would only do so forcibly.  The first respondent argues that his statement ‘if I am forcibly returned’ should be taken to have meant, in  the broader sense, that he would have no choice but to agree to return to Iran if his protection claims were refused.  But in my view that interpretation is no topen, given the applicant’s express statement that “I will not go back to Iran voluntarily…”.

10. The first respondent points out that the second respondent made an express finding that the applicant would “likely return on a temporary travel document”.  In that regard the second respondent said (footnotes omitted):

    52.    I accept that the applicant left Iran legally on his own passport and that the smuggler took his passport on route to Australia and he will likely return on a temporary travel document. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.  Even if I accept that the applicant will be questioned on return by the Iranian authorities as someone who will be returning on a temporary travel document, on the basis of the country information before me, the applicant’ s profile and legal departure from Iran, I am not satisfied there is a real chance he will be questioned in regards to why he left Iran, what he told the Australian authorities, his refugee claims and his activities in Australia or that he will be forced to sign into his Facebook account. I also do not consider being questioned to amount to serious harm. I am also not satisfied that he would face a real chance of being harmed during questioning on the basis of being a failed asylum seeker from a western country or in combination with his Kurdish ethnicity, or for any other reason.

11. However, the second respondent’s finding that he would likely return on a temporary travel document says nothing about whether his return is forced or voluntary, or if it is intended to do so, it does not expressly provide for that.  As the first respondent points out, it is uncontested that the applicant left Iran legally but his passport had since been destroyed. However, without further explanation by the second respondent, there is no basis for a finding, if indeed the second respondent actually made one, that the applicant will “likely return on a temporary travel document”.

12. The consequences of the applicant being forcibly returned were not considered by the second respondent.  At the very least, just like CLS15, the second respondent’s reasons about the nature of the applicant’s return are at best ambiguous.  The second respondent’s reasons say nothing about the possible consequence of the applicant not being willing to be returned and the Iranian authorities’ position concerning forcible returnees.   

13. The first respondent argues that the second respondent here made broad findings of fact that “subsumed the specifics of the applicant’s claim in the sense that it found that, even if the applicant were questioned due to the nature of his return, being questioned did not amount to serious harm and it did not accept that he would be harmed during questioning”.  But that argument too, fails to appreciate that the applicant’s position was that he would only return to Iran forcibly.  No consideration seems to have been given to the applicant’s position if that were so.

14. In my view the second respondent did not deal with this aspect of the applicant’s claims.  It arose squarely upon the material before the second respondent.  The second respondent’s reasons do not clearly deal with that aspect of the applicant’s claims.  This aspect reveals that the second respondent fell into jurisdictional error.

Conclusion

1. In the circumstances, the second respondent’s decision is attended by jurisdictional error.  The second respondent’s decision made on 29 September, 2017 must be set aside and the application remitted to be determined according to law.  The applicant should have his costs of the application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 August, 2018.

Date: 6 August, 2018