FJB17 v Minister for Immigration

[2019] FCCA 1136

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJB17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1136

Catchwords:
MIGRATION – Application for safe haven enterprise visa – fears of harm if returned to Iran unfounded – assertion by applicant that he was stateless – how citizenship determined – laws of state to be considered – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 476

Cases cited:

AEH16 & Anor v Minister for Immigration & Anor [2019] FCCA 34

VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239
Minister for Immigration v SZIAI [2009] 259 ALR 429
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: FJB17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2663 of 2017

Judgment of: Judge Egan

Hearing date: 12 April 2019

Date of Last Submission: 12 April 2019

Delivered at: Brisbane

Delivered on: 12 April 2019

REPRESENTATION

Solicitor for the Applicant: Mr A. Francis

Counsel for the Respondents: Mr J.D. Byrnes

Solicitors for the Respondents: Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 28 March 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2663 of 2017

FJB17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant claimed that he was a stateless Faili Kurd.  He arrived on Christmas Island as an unauthorised maritime arrival in October 2012.  On 12 August 2015, he made application for a safe haven enterprise visa (SHEV).  On 10 February 2017, the delegate refused to grant the applicant a SHEV.  The delegate did not accept the applicant’s claim that he was stateless considering that the applicant could either resume Iraqi citizenship or otherwise obtain Iranian citizenship.

2. On 17 February 2017, the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the delegate’s decision. On 27 November 2017, the Authority affirmed the delegate’s decision. On 7 December 2017, the applicant made application for judicial review of the decision of the Authority pursuant to the provisions of s. 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

3. By [2] of its reasons, the Authority acknowledged that it had had regard to the material referred to it by the secretary pursuant to provisions of s. 473CB of the Act.

4. The applicant’s claims for protection were relevantly recorded in [6] of the reasons of the Authorityas follows:

   ·He was born on 23 September 1988 in Yazd, Iran and is a stateless Faili Kurd.

   ·His parents were born and lived in Iraq but were expelled from Iraq to Iran in 1980 by Saddam Hussein. They later met and married in Iran in 1985. His parents were registered as refugees in Iran and were first granted green cards which were later replaced with white cards.

   ·He does not have any right to Iraqi citizenship and he has never been to Iraq. His mother obtained her Iraqi birth certificate after 2008 but his father did not.

   ·As a stateless Faili Kurd he was systematically discriminated against in Iran and he fears discrimination in Iraq as a Kurd.

   ·His last white card was issued in 2008 for one year but was not renewed after that. This impacted his access to the legal right to work and other services.

   ·In 2011 he complained to the Office of Immigrants, Bureau for Aliens and Foreign Immigrants Affairs (BAFIA) after not getting a new white card and was threatened by an official who told him he would send him to a place “where his hair would become the colour of his teeth”. He was scared after being threatened by the official and went and stayed with an aunt in Qom for six months.

   ·He departed Iran using a false Iraqi passport in January 2012.

   ·He was brought up as a Shia Muslim but did not practise his religion whilst living in Iran.

   ·He was interested in Christianity whilst living in Iran and was baptised when he was Indonesia in April 2012. He attends a Protestant Church in Southbank, Victoria. His Christianity could cause him issues in Iran and Iraq.

5. The grounds for review are found in the amended application filed on behalf of the applicant and are as follows:

   1. The Second Respondent erred in dealing with the Applicant’s nationality for the purposes of s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).

   Particulars

   a. The Second Respondent made an affirmative finding that the Applicant had “re-acquired” Iraqi nationality (Court Book (CB) 149, [16]).

   b. In the circumstances of the case, a positive finding of Iraqi nationality required an assessment of whether the Applicant had satisfied the requirements for the grant of Iraqi nationality under Iraqi law for a person in the Applicant’s circumstances.

   c. In failing to undertake this inquiry, the Second Respondent failed to take into account relevant considerations.

   d. The Second Respondent’s failure to take into account relevant considerations was not an immaterial error.

6. By paragraphs [3] and [17] of its reasons, the Authority found that the applicant was entitled to obtain Iraqi citizenship.  The footnotes to [3] of the reasons of the Authority included DFAT country information as well as UK Home Office country information.  The finding at [3] of the reasons of the Authority as to the applicant’s citizenship differed from the finding of the delegate.  Reference was made to the delegate’s reasons for decision and, in particular, to pages 102-105 inclusive of the Court Book where the applicant’s nationality was discussed in detail.

7. At CB102, part of the delegate’s reasons were recorded as follows:

   The 2006 Iraqi Nationality Law repealed decree 666 and states that all persons that had been denaturalized by the former government should have their Iraqi nationality reinstated. According to the Iraqi Ministry of Displacement and Migration (MODM), since 2003 about 20,000 families (or roughly 100,000 individuals) have had their citizenship reinstated. In order to reacquire Iraqi citizenship, Faili Kurds needed to show that they were registered during the 1957 Iraqi national census

8. It must be inferred that the reference in the delegate’s decision relating to the national laws of Iraq regarding Iraqi citizenship were considered by the Authority when arriving at its conclusion that the applicant was of Iraqi nationality entitled to obtain Iraqi citizenship.

9. The Authority dealt with the question of the applicant’s identity and his claimed statelessness in great detail.  It addressed all relevant questions in that regard at [7-17] of its reasons. 

10. At [13] of the authority’s reasons, the applicant was recorded as having admitted that his mother had travelled back to Iraq in 2008 and had thereafter obtained her Iraqi birth certificate.  It was conceded that the applicant’s mother had obtained Iraqi citizenship notwithstanding the fact that she had been earlier denaturalised by a former Iraqi Government.

11. Having determined that the applicant’s nationality was Iraqi, the Authority then went on to consider the applicant’s refugee claims.  The Authority was not satisfied that the applicant had genuinely converted to Christianity, finding that the applicant had attended church in Australia for the sole purpose of strengthening his refugee claims.  It therefore placed no regard on such aspect of the applicant’s claims.  The Authority did not accept that the applicant’s baptism and church attendance in Indonesia would become known to Iraqi authorities or to the community in Iraq, or that he would seek to practice Christianity in Iraq, and therefore, the Authority was not satisfied that the applicant faced a real chance of harm if returned to Iraq for those reasons.

12. At [27] of its reasons, the Authority found that the applicant was not actively involved in a militia or any tribal group, and that therefore, based on credible in-country contacts and country information, there was a low risk of the applicant being harmed should he return to areas in and about Kut where he had family contacts. The Authority also found at [30-31] of its reasons that it was not satisfied that the applicant would face a real chance of harm in Iraq as a failed asylum seeker having been repatriated from Australia. The Authority was not satisfied that the applicant would face a real chance of serious harm in Iraq if returned to the country, and concluded that the applicant did not meet the relevant section 36(2)(a) criteria.

13. Based on its findings, the Authority was not satisfied that the applicant would face a real risk of significant harm in Iraq as a Shia, or a non-practicing Shia, or as a result of being a failed asylum seeker. It found that the applicant did not meet the relevant complementary protection criteria as set out in section 36(2)(aa) of the Act.

14. As to the question of determining nationality on the part of an applicant, the Court was referred to a decision of his Honour Kelly J in AEH16 & Anor v Minister for Immigration & Anor [2019] FCCA 34 and to [52] thereof where his Honour said:

    The applicants correctly submitted that a finding of nationality was to be determined by reference to the domestic law of putative nationality.

15. Reliance for that proposition was placed upon the decision of Justice Weinberg  in VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [29]-[31].

16. It should be noted that in paragraph [31] of the reasons of Weinberg J, his Honour said as follows:

    [31].  It should be noted that Ryan J did not stipulate that the only way in which foreign law can be proved is through one of the means set out above.  These were examples, rather than an exhaustive statement of the methods of proof that was legally permissible. 

17. In the case before the Court, it is clear that the Authority must have had reference to the laws of Iraq as set out in the delegate’s reasons as recorded on CB page 102 when determining that the applicant’s nationality was Iraqi.  Such approach is entirely legitimate and in accordance with the principles as enunciated by Weinberg J.  An Authority does not need to address with particularity the legislative regime of each and every nation capable of being found as an applicant’s country of origin before it makes a finding that any one applicant is a national of one country. 

18. To the extent that the applicant has asserted that the Authority failed to take into account the laws of Iran relating to the acquisition of citizenship, or the circumstances in which citizenship might have been obtained by the applicant, and that such constituted a failure to take into account a relevant consideration, such argument is dismissed.  The Authority had before it sufficient information to enable it to find that the applicant was an Iraqi national.  

19. The Authority did not fail to make an obvious inquiry about a critical fact as was held in Minister for Immigration v SZIAI [2009] 259 ALR 429 at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

20. It cannot be said that no other rational or logical decision maker could not have made the same decision as did the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

21. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

22. The applicant has not demonstrated jurisdictional error on the part of the Authority. 

23. The application for review is without merit and is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 10 May 2019