GLX18 v Minister for Home Affairs

[2020] FCCA 1882

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLX18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1882

Catchwords:
MIGRATION – Review of decisions – judicial review – grounds of review – not undertaking statutory task – receiving country.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 5H(1)(a), 5J(1), 36(2), 57

Cases cited:

FJB17 v Minister for Immigration [2019] FCCA 1136
VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239

Applicant: GLX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 664 of 2018

Judgment of: Judge Jarrett

Hearing date: 14 April 2020

Date of Last Submission: 14 April 2020

Delivered at: Brisbane

Delivered on: 10 July 2020

REPRESENTATION

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Ms Oliver

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 30 November, 2018.

2. A writ of mandamus issue remitting the referred application the subject of this proceeding to the Second Respondent to consider and determine it according to law.

3. The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 664 of 2018

GLX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application filed on 23 September, 2019 the applicant seeks judicial review of a decision of the second respondent made on 30 November, 2018 which affirmed a decision of a delegate of the first respondent made on 25 September, 2018 not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa.

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.  Both the applicant and the first respondent have filed written submissions.

Background

1. The applicant arrived in Australia at Christmas Island in 2013 as an unauthorised maritime arrival.  He claimed that he was born in the Ghazni province of Afghanistan and that he was citizen of Afghanistan and of Hazara ethnicity.  In his entry interview he claimed that he held no other citizenships.  His UNHCR Asylum Seeker Certificate noted his nationality as “Afghanistan”.

2. At the invitation of the first respondent, on 15 May, 2017 the applicant lodged an application for a Safe Haven Enterprise (Subclass 790) visa.

3. In general terms, the applicant raised claims to fear harm in Afghanistan for reasons of his ethnicity, his extended absence from Afghanistan, certain family disputes and the dangerous security situation that existed in that country.  In his visa application, the applicant declared that he was born in and a citizen of Afghanistan.  He declared that he was not a “current citizen or national of any other country”.  He claimed that both his mother and father were citizens of Afghanistan and that Afghanistan was the only country that he was able to legally enter or in which he could legally reside.

4. He claimed that that he fled Afghanistan for Pakistan when he was about eight or nine years of age following the Communist coup d'état in 1978 in Afghanistan.  The applicant’s father was a Communist loyalist and was accused by the Islamic establishment of being an atheist or “unbeliever”.  While in Pakistan, the applicant’s family obtained fake Pakistani identity documents, including passports, which allowed them to masquerade as Pakistan citizens.

5. The applicant said that he travelled from Pakistan to Indonesia, via Sri Lanka and Malaysia, by plane on a Pakistani passport.  The passport and other false Pakistani identification documents he had where thrown in the ocean by a people smuggler whilst he was on the boat journey to Australia.  Therefore, he said, he did not possess any identification documents from either Afghanistan or Pakistan but only a UNHCR card issued in Jakarta.

6. On 15 December, 2017 the applicant attended an interview with a delegate of the Minister to discuss his visa application.

7. On 1 June, 2018 the delegate wrote to the applicant pursuant to s.57 of the Act and explained that, contrary to the applicant’s claims, there was information before the Department that were inconsistent with the applicant’s claims. The Departmental officer wrote:

   …In your Safe Haven Enterprise Visa (SHEV) application and subsequent interview you stated that the last contact with your wife and children, who were living in Quetta, Pakistan, was in July 2015. You claimed that you had informally divorced your wife and no longer had any contact with her or your children. You also stated that you had no family members residing in Australia.

   Information before the Department indicates that your wife, five children and son-in-law are all residing in Australia and have previously been residing with you at the same address in Perth. Information before the Department indicates that a ‘Death Certificate’, purportedly referring to your death in Afghanistan in 2006, has been provided to the Department.

   In addition, I note that Afghan taskeras purportedly relating to your wife and siblings, have previously been identified as being ‘not registered’ by the Afghan authorities. You have claimed that you have lived illegally in Pakistan since approximately 1978/1979 and have not returned to Afghanistan since, however your children have stated that they were born in Afghanistan. You may wish to comment on the aforementioned information that is currently before the Department.

   The aforementioned information and inconsistencies may lead me to make adverse findings regarding your credibility and find that you are not a citizen of Afghanistan as claimed. The above information may also persuade me to make a finding that you are citizen of Pakistan. In the event that this finding is made, you are now invited now to put forward any reasons may have for not being able to return to Pakistan. …:

8. In response to the invitation to comment, on 21 June, 2018 the applicant provided a written statement to the Tribunal.  The applicant claimed that, contrary to what was stated in his visa application, he had never been formally married and he did not have any children.  He said that the reference to his wife “Ziba” in the visa application was in fact a reference to a woman who was not his wife.  He said that “Ziba” means “beautiful” and is the name he has always used for that woman who was the wife of his deceased cousin, who had the same name as he had.  He claimed that he had had a secret affair with Ziba, when Ziba’s husband was alive.  The applicant claimed that when he arrived at Christmas Island, Ziba and her children were still in Pakistan.  He said he put them down as his family as he wanted to look after her and the children and bring them to Australia so he could give them a better future.  He said he occasionally spoke to Ziba, but never told her he had listed her as his wife, and she did not tell him that she was coming to Australia.  He stated that he only heard she had arrived in Australia after she had arrived, and stated that they started their relationship again a few months after she arrived.

9. The applicant said that he had told the Department that he had divorced his wife and left his children because he was unable to explain that he had made up having a wife and children.

10. On 25 September, 2018 the delegate made a decision refusing to grant the applicant a visa.  The delegate accepted that the applicant was a Hazara and Shia Muslim.  The delegate noted that the applicant’s claimed country of birth and citizenship is Afghanistan, but found that “the applicant was born in Pakistan and that he has Pakistani citizenship”.  The delegate found that he had previously resided in Quetta, Pakistan before departing Australia using a valid Pakistani passport.  The delegate found that the applicant was married and has five children are currently residing in Australia.

11. The delegate found that the applicant faced a real chance and real risk of being killed in Quetta, but that it was reasonable for him to relocate to the Pakistani cities of Islamabad, Karachi or Lahore.

12. The delegate’s decision was referred to the second respondent pursuant to s.473CA of the Act.  The second respondent had regard to the material referred to it by the Secretary of the first respondent’s department in accordance with s.473CB of the Act and a submission provided by the applicant’s representative dated 10 October, 2018.  On 16 October, the applicant provided to the second respondent a copy of a taskera which the applicant said belonged to his deceased father.  However, the second respondent paid no regard to that information considering it to be new information for the purposes of the review and determining that there were no exceptional circumstances to justify considering that information.  In these proceedings, the applicant does not challenge that approach.

13. In its decision record, the second respondent acknowledged that the “applicant claims to be a citizen of Afghanistan but states that he and his family have previously held fraudulent Pakistani identity documents, including a passport”.

14. As to the question of the applicant’s country of reference, the second respondent said:

    22. I am not satisfied that the Applicant has been a witness of truth in relation to his family composition and on that basis I have concerns as to his truthfulness in relation to his citizenship. He did not provide any identity documents to the Department apart from the UNHCR letter.

    23. In his 18 June 2018 response to the Department, the Applicant provided a statutory declaration from a person claiming that he knew the Applicant as a child in Afghanistan and saw him once or twice in Quetta. The declaration states that based on the deponent’s knowledge of the Applicant, he believes the Applicant is a citizen of Afghanistan and is not married. The bases of this knowledge are not explained further but there is nothing to indicate that the citizenship and marriage comments are based on anything other than what the Applicant has said or claimed to the deponent. I do not give this declaration any weight in relation to the Applicant’s citizenship.

    24. I take into account that the children’s taskeras provided with the sponsorship application indicate that the children were all born in Afghanistan. This is entirely inconsistent with the Applicant’s evidence that the children were born in Pakistan and that he himself has never been back to Afghanistan. I have not given those taskeras any weight in relation to the Applicant’s citizenship.

    25. The Applicant claims that he held a CNIC and a Pakistani passport, although he claims that these were fraudulently obtained. He claims that these documents were disposed of by, or on the instructions of, the people smugglers. Although the information in the review material indicates that fraudulent documents are obtainable in Pakistan and that Afghan citizens have done so in the past, having regard to my finding that the Applicant has not been a witness of truth, I do not accept that his identity documents were false. I do not accept that he is an Afghan citizen who held false Pakistani documents. In these circumstances (and particularly the absence of documentation from any official source that directly confirms the Applicant’s nationality), I have decided not to exercise my discretion to obtain information from the Pakistani government as suggested in the Applicant’s post-interview submission.

    26. I find that the Applicant is a citizen of Pakistan, held genuine Pakistani identity documents, and that Pakistan is the receiving country for the purposes of this review.

15. The second respondent assessed the applicant’s claims for protection against Pakistan and not Afghanistan.  The second respondent concluded that the applicant faced a real risk of significant harm in Quetta, but that it was reasonable for him to relocate to Islamabad.

16. On 30 November, 2018 the second respondent affirmed the delegate’s decision not to grant the applicant a visa.

Grounds of Review

1. The applicant’s amended application contains one ground of review in the following terms:

   The Immigration Assessment Authority (IAA) failed to carry out its statutory task of review by failing to consider whether the Applicant satisfied the criteria for citizenship under Pakistani law.

   Particulars

   a. The IAA concluded that the Applicant was a Pakistani citizen and that his ‘receiving country’ was Pakistan.

   b. Section 5(1) of the Migration Act 1958 (Cth) required the IAA to determine the Applicant’s ‘receiving country’ ‘solely by reference to the law of the relevant country’.

   c. Therefore, the IAA was obliged to consider whether the Applicant had acquired Pakistani citizenship or could satisfy the test for naturalisation under Pakistani law before it could conclude that he is a Pakistani citizen.

   d. By failing to make the ‘receiving country’ determination ‘solely by reference to the law of the relevant country’, the IAA failed to carry out its statutory task of review.

Consideration

1. The applicant argues that in determining the receiving country for the purposes of the review, the second respondent was obliged to consider whether the applicant had acquired Pakistani citizenship or could satisfy the test for naturalisation under Pakistani law before it could conclude that he was a Pakistani citizen and it did not do so.  In order to do that it needed to identify the relevant laws and what they required.  The facts of the applicant’s case needed to be measured against those laws.

2. He points out that his claim to have been born outside of Pakistan to Afghan citizen parents was not rejected by the second respondent but rather was recorded by the second respondent in its reasons apparently without criticism.  In light of the second respondent’s failure to reject the applicant’s claim that he was born in Afghanistan, the applicant argues that the finding that he was Pakistani citizen necessarily required the second respondent to assess and explain in its reasons how the applicant gained citizenship under Pakistani law.  He points out that the second respondent’s decision is bereft of any assessment of how or why the applicant met the legal criteria to hold Pakistani citizenship. 

3. To fully understand the applicant’s argument, it is necessary to review the statutory framework relevant to the present application. Section 36(2) of the Act provides:

   A criterion for a protection visa is that the Applicant for the visa is:

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

4. Section 5H(1) of the Act provides a definition of the term refugee.  It provides:

   For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

5. The phrase receiving country is relevant to the definition of well-founded fear of persecution” as that term is used in s.5H(1)(a) of the Act. The term well-founded fear of persecution is defined in s.5J(1) as follows:

   For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c) the real chance of persecution relates to all areas of a receiving country.

6. The term receiving country is defined in s.5(1) of the Act to mean:

   receiving country, in relation to a non-citizen, means:

   (a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country

7. The applicant argues that for the purposes of his visa application, the definition of receiving country in (a) of the definition of that term was, and remains, applicable.  He did not contended that he was a non-citizen or stateless.  I accept that submission.

8. Thus, he argues that when determining a receiving country for the purposes of his application, the second respondent was required to solely consider:

   a)the citizenship (and other) laws of Pakistan; and

   b)the applicant’s circumstances, insofar as they are determinative of whether an applicant falls within the scope of Pakistan is citizenship laws.

   I accept this submission also.  The first respondent also accepts that that was the task of the second respondent.

9. Thus, the issue at the heart of this application is whether the second respondent undertook that exercise.  The applicant argues that it did not.  The first respondent argues that it did. 

10. The applicant argues that because the second respondent made no finding all about the basis all upon which the applicant was a Pakistani citizen it is impossible to tell whether it made that determination by reference solely to the laws of Pakistan.  The applicant asks rhetorically; was his Pakistani citizenship acquired through jus soli, jus sanguinis or by some other method of naturalisation?  He argues that the second respondent simply made no findings in relation to the applicant’s claimed place of birth or the claimed citizenship of his parents.  He points out the second respondent made a finding that the applicant’s previously held Pakistani passport and Computerised National Identity Card were not fraudulent as claimed, but were genuine. 

11. The first respondent argues that the Tribunal did not accept the applicant’s claims about where he was born uncritically.  Whilst it is true that there is no direct criticism of that claim in the second respondent’s reasons for decision, what is clear is that the second respondent rejected most of the claims that the applicant made.  Specifically, it was concerned with the inconsistencies between the applicant’s claims about when he left Afghanistan and where his family lived and where his children were born.  I have set out the relevant paragraphs above.

12. The second respondent expressly said that it had concerns about the truthfulness of the applicant’s claims about his citizenship.  Given that he claimed that he was a citizen of Afghanistan by reason of having been born there, it follows that the second respondent was concerned about the truthfulness of that claim. 

13. The Tribunal noted that the applicant had a passport and identity documents for Pakistan but rejected his claim that they were obtained fraudulently.  It expressly did not accept that the applicant is an Afghan citizen who held false Pakistani documents.  That finding was sufficient to signify a rejection of the applicant’s claim that he had been born in Afghanistan given that his claim to be a citizen of Afghanistan rested upon the proposition that he was born there. 

1. The delegate, in his decision, had referred to the Pakistani Citizenship Act 1951 by saying:

   Only Hazaras who were born, or their parents or grandparents were born, in Quetta before 1947 would have been ‘deemed’ citizens. Section 3(a) of the Pakistani Citizenship Act 1951 states:

   ‘At the commencement of this Act every person shall be deemed to be a citizen of Pakistan:-

   Who or any of whose parents or grandparents was born in the territory now included in Pakistan and who after the fourteenth day of August, 1947, has not been permanently resident in any country outside Pakistan.’

2. The second respondent did not discuss any of the laws of Pakistan relating to citizenship or any other matter.  The second respondent did not expressly find that the applicant had been born in Pakistan.  It did, at least by implication, reject his claim that he had been born in Afghanistan.

3. The second respondent seems to have made its finding that the applicant was a citizen of Pakistan on the basis that he held a genuine passport and genuine identity documents.  But nowhere in the second respondent’s reasons, or in any of the other material to which I have been taken, is it apparent that the second respondent considered any laws of Pakistan relating to citizenship. 

4. There is an underlying assumption in the second respondent’s decision that because he held a genuine passport and genuine identity documents he must, therefore be, a citizen of Pakistan.  But to reach that conclusion, there must be some consideration of the relevant citizenship laws.  There is none.  The consideration of the Pakistani Citizenship Act by the delegate does not assist.  The legal connection that must exist between the implicit finding that he was not born in Afghanistan, the finding that his passport and identity documents were genuine and the finding of citizenship, is not exposed in the second respondent’s reasons.  That he was not born in Afghanistan does not necessarily mean that he is a citizen of Pakistan.  It depends upon the citizenship laws of Pakistan.  Nor does the fact that he holds a genuinely issued Pakistani passport necessarily mean that he is a citizen of Pakistan.  It depends upon the laws pursuant to which passports are issued in that country.  That he holds identity documents, apparently genuinely issued, does not necessarily mean that he is a citizen of Pakistan either.  It depends upon the laws pursuant to which those identity documents were issued.

5. None of these matters are explored by the second respondent in its reasons.  There are no findings about the relevant law that might have applied in the applicant’s circumstances so as to mean that he was a citizen of Pakistan.

6. The applicant emphasises that his argument is not one to the effect that there was no evidence upon which the second respondent could reach a conclusion that he was a citizen of Pakistan.  As the decision in VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 demonstrates, the holding of a passport might indeed supply evidence from which an inference of citizenship or nationality might be drawn. But VSAB was decided against a different legislative scheme.  The obligation on the second respondent here was to make a finding about citizenship determined solely by reference to the laws of Pakistan.  All that could be drawn from the facts of the present case was that the applicant met the conditions necessary to be granted a Pakistani passport and identity documents.  That says nothing about citizenship without more.  The second respondent does not identify any laws pursuant to which it made its determination.

7. The first respondent relied upon FJB17 v Minister for Immigration [2019] FCCA 1136 to argue that the absence of any specification in the second respondent’s reasons of the relevant laws upon which he relied to make a determination of citizenship was not significant. In particular I was taken to [17]-[18] where the Court said:

   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.

   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.

8. This, however, is of little assistance in the present case because it does not stand as authority for the proposition that when the second respondent makes a finding that an applicant is a citizen of a particular country (and citizenship is an issued in the application before it) it does not have to have regard to the laws of the particular country of which the applicant is found to be a citizen.  In that case, the Court found that eh Authority had, by compelling inference, had regard to the laws of the relevant country by reference to the delegate’s decision that was the subject of the review.

9. However in the present case, I cannot be satisfied that the second respondent had before it sufficient information to enable it to find that the applicant was a Pakistani citizen.  I was not taken to any information about the citizenship laws of Pakistan that was before the second respondent which might be said to have been sufficient to enable it to make the relevant finding. 

10. In the absence of anything in the second respondent’s reasons to indicate that it determined the question of the applicant’s citizenship solely by reference to the laws of Pakistan, I cannot be satisfied that it did so.  It is more likely than not, that the second respondent has determined the question of citizenship by reference to:

    a)its refusal to accept the applicant’s claims of having been born in Afghanistan as credible;

    b)its finding that the applicant held a genuine passport and identity documents; and

    c)an implicit assumption that to be the holder of such documents, the applicant must have been a citizen of Pakistan.

11. Such an approach by the second respondent demonstrates jurisdictional error on its part because the second respondent has not carried out its statutory task to determine the applicant’s receiving country in the way authorised by the Act.

Conclusion

1. For the above reasons, I find that the second respondent fell into jurisdictional error.  The second respondent’s decision should be set aside and the matter remitted to the second respondent for determination according to law.  The parties are agreed that costs should follow the event.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 July, 2020.

Associate: 

Date: 10 July 2020