SZSPX v MIMAC

[2013] FCCA 1715

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSPX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1715

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal asked the wrong question, took into account an irrelevant consideration or failed to apply the statutory test. 

Legislation:  

Migration Act 1958 (Cth), ss.36, 424A

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6

Applicant: SZSPX

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 388 of 2013

Judgment of: Judge Barnes

Hearing date: 23 August 2013

Delivered at: Sydney

Delivered on: 25 October 2013

REPRESENTATION

Counsel for the Applicant: Mr C Jackson

Solicitors for the Applicant: City of Sydney Lawyers

Counsel for the Respondents: Mr Y Shariff

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 31 January 2013 in Tribunal case number 1203602.  

2. A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 19 March 2012.  

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 388 of 2013

SZSPX

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 31 January 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.  The sole ground of review (in an amended application filed on 26 August 2013) relates to only one part of the Applicant’s claim to fear persecution in Iran, that is, his claim to fear persecution as an undocumented child or person in Iran. 

2. The Applicant is an infant who was born in Australia on 3 November 2011.  His parents are Iranian citizens who arrived at Christmas Island in January 2011.  They applied for protection visas.  Their application was rejected in July 2011. 

3. On 16 December 2011 the Applicant lodged a separate application for a protection visa in which he claimed he belonged to the Persian ethnic group and that his religion was Muslim, Shia.  His parents’ statutory declarations in relation to their own (unsuccessful) protection visa claims were relied on in support of the Applicant’s application.  In essence, those claims were based on the father’s alleged participation in post-June 2009 demonstrations in Iran against the Iranian regime and the parents’ claims that once they had sought asylum in Australia they would be perceived as being anti-government and/or anti-Islam.

4. In a written submission of 19 January 2012 the Applicant’s solicitor/migration agent claimed that the Applicant’s parents feared that the child would be persecuted in Iran because of his parents’ political dissent which would be imputed to him and that as a child he was particularly vulnerable to persecution because he was unable to protect himself.  Relevantly, it was also claimed that the Applicant would be subject to additional persecution in Iran “because he will be undocumented”.  It was claimed that his parents “cannot obtain documentation for him because he was born in Australia and because of their political profiles in Iran”. 

5. The submission referred to independent country information in relation to what was said to be the particular vulnerability of children to persecution in Iran.  Included was a reference to information said to indicate that in Iran a “father’s citizenship will serve as a decisive factor in determining the citizenship of a child” and that there were substantial bureaucratic obstacles involved in obtaining Iranian citizenship through a complicated process requiring proof of Iranian ancestry. 

6. On 19 March 2012 the application was refused by a delegate of the First Respondent.  The Applicant sought review by the Tribunal.  In submissions of 22 May 2012 the Applicant’s solicitor advised that the child’s claims were “intertwined with those of his parents” and that the Applicant’s father had instructed that due to his own imputed opposition to the Iranian regime and perceived political dissidence and apostasy he feared persecution of the Applicant in Iran. 

7. The submission addressed the impact on the Applicant of being imputed with his father’s perceived political opinion.  In that context it was contended that treatment of the Applicant’s parents as political dissidents would lead to them being monitored and the child being deprived of essential aspects of childhood development, including education, social contact with peers and parental support. 

8. This submission also included a lengthy outline of independent country information in relation to Iran, including the treatment of perceived opponents of the regime and persecution of failed applicants for asylum.  Included under the heading “Persecution of Faili Kurds in Iran” was information about the circumstances of stateless and undocumented persons in Iran, including refugees other than Faili Kurds.  Also included was information about the risk of arrest, detention and deportation for undocumented or unregistered persons in Iran. 

9. The Applicant’s parents attended a Tribunal hearing (on 24 August 2012 and 28 November 2012).  The Tribunal summarised the parents’ oral evidence including evidence about the Applicant’s claims as an undocumented child discussed further below. 

10. The Tribunal put certain information to the Applicant for comment or response under s.424A of the Migration Act 1958 (Cth) (the Act) by letter of 10 October 2012. It did not receive a response. However the issues raised in that letter were canvassed at the resumed hearing on 28 November 2012 after it emerged that the information in the letter had not been put to the Applicant’s parents by the representative. The Tribunal also gave them the opportunity to submit further information after the hearing addressing these and other issues in the review.

11. In a written submission of 30 November 2012 the Applicant’s advisor stated that he sought to clarify the Applicant’s claims, as distinct from those of his parents.  The Applicant was said to fear harm for reason of: 

    (1) his perceived political opinion that was in opposition to the Iranian regime, which was said to arise because of his father’s political activities, his parents’ applications for asylum in Australia, and his own application for asylum; 

    (2) his perceived apostasy, based on his father’s perceived apostasy; 

    (3) his membership of a particular social group of children of perceived political dissidents;  and

    (4) “his membership of the particular social group of undocumented children in Iran.  [The Applicant] was born in Australia.  His birth has not been registered with the Iranian authorities, and he has no Iranian identity documentation.” 

12. The submission addressed the substance of the Applicant’s parents’ claims, the impact of the parents’ claims on the Applicant’s claims, the situation of failed asylum seekers and a claimed death penalty said to have issued in respect of the Applicant’s father.  In addition, independent country information was attached which was said to indicate, among other things that, “undocumented people in Iran are unable to access essential services, including health care, education and employment, exposing them to significant subsistence-based threats.” 

13. In the attached information, under the heading “Undocumented people in Iran”, it was claimed that recent independent country information showed that “any undocumented persons, such as foreign nationals, Faili Kurds and refugees, [were] systematically denied essential services, education and employment in Iran” (emphasis added).  It was also submitted that “independent country information already submitted in [relation] to the plight of undocumented persons living in Iran (including undocumented Faili Kurds and undocumented Afghan refugees) [w]as relevant to [the] assessment of the future prospects for [the Applicant]”, as it was said he would have “no way to prove his Iranian nationality and [would] not be able to produce identity documents on demand”.  The advisor submitted that because the Applicant’s father was “unable” to obtain Iranian documentation for him, the Applicant’s “situation in Iran will be equivalent to other undocumented persons living in Iran, and like them, he will be denied essential services such as medical assistance, education and employment”.  The submission drew to the Tribunal’s attention independent country information in relation to the denial of or restrictions on the provision of services to undocumented foreign nationals, penalties on employers hiring undocumented persons and the treatment and deportation of undocumented refugees. 

The Tribunal Decision

1. In its reasons for decision the Tribunal outlined in detail the oral and written evidence before it.  It addressed the capacity of the Applicant’s parents to participate in the Applicant’s review having regard to evidence regarding mental health concerns.  While the Tribunal accepted that the parents had mental health vulnerabilities, it was satisfied that the processes it had employed had allowed the Applicant a real and meaningful opportunity to participate in the review and hearing process.  It was not satisfied that its cumulative credibility concerns were overcome by reference to the parents’ vulnerabilities. 

2. Relevantly, the Tribunal addressed the issue of the Applicant’s nationality having regard to the fact that he was born in Australia and had never resided elsewhere.  The Tribunal found on the evidence before it that it was appropriate to assess the Applicant’s claims against Iran as the country of reference. 

3. In reaching this conclusion it observed that Iran had been identified as the Applicant’s country of citizenship in the protection visa application submitted on his behalf and prepared with the assistance of a lawyer/migration agent, that his parents were classified as Iranian nationals and that no country other than Iran had been presented as the country against which his claims could be assessed. 

4. The Tribunal also referred to independent sources indicating that under Iranian law a person was regarded as an Iranian national by descent if his or her father was an Iranian national, regardless of the child’s place of birth.  It was satisfied on the evidence presented that the Applicant’s father was an Iranian national. 

5. However, the Tribunal also accepted that, as indicated in independent information, certain administrative steps would have to be taken to have the Applicant’s Iranian birth registered and his Iranian nationality documented.  The Tribunal referred to information about the Iranian Birth Registration Law which requires that the birth of every child born in Iran shall be reported within 15 days to the appropriate authority and that children born to Iranian nationals residing outside Iran shall be reported to the local consulate, to the nearest Iranian consulate or to the birth registration organisation of Iran.  It recorded that the information before it was that if a birth was not reported within 15 days, those who were legally bound to report the birth were considered violators of the law who would be prosecuted and, in case of conviction, liable not only for registration of the birth but also for payment of a fine.  The independent information was also said to indicate that these laws were often not comprehensive enough, were not enforced or did not function. 

6. The Tribunal summarised the Applicant’s express claims to fear serious or significant harm in Iran because of his perceived political opposition to the regime arising in connection with his father’s political activities, his parents’ requests for asylum and/or his own asylum application, his perceived apostasy because his father was viewed as an apostate and infidel; and/or his membership of a particular social group of children of perceived political dissidents and/or “[u]ndocumented children in Iran – as he was born in Australia, his birth has not been registered with the Iranian authorities and he has no Iranian identity”. 

7. The Tribunal found that in addition to these express claims other claims arose on the evidence before it, including that the Applicant faced harm in Iran because his parents would be harmed and, relevantly, that he “would not be documented in Iran because of his parents’ fears of persecution should they approach the authorities” and that he “would not be documented as he was born in Australia”. 

8. The Tribunal considered in detail, but rejected, the Applicant’s claims based on an imputed political opinion of opposition to the government and being the child of perceived dissidents.  In particular, the Tribunal did not accept the claims that the Applicant’s father had a profile as a political opponent of the regime in Iran or was identifiable as such or that either he or the Applicant were the subject of a death penalty order.  The Tribunal was not satisfied that the Applicant child would be imputed with any particular political opinion in connection with his father’s participation in the June 2009 demonstrations or otherwise, that he would be exposed to a real chance of serious harm or a real risk of significant harm on this basis or in relation to the claimed political opinions of his parents more generally. 

9. In reaching these conclusions the Tribunal found that it did not accept the truth and reliability of significant aspects of the Applicant’s father’s evidence about claimed events and circumstances in Iran.  It was not satisfied that the Applicant’s parents had any particular political opinions they would like to express or that they would suppress out of fear.  It was not satisfied that the Applicant would be imputed with any particular political opinions as the young son of his parents,

10. Nor was the Tribunal satisfied that the Applicant had a real chance of serious harm or a real risk of significant harm based on his parents’ and also his own requests for Australia’s protection, having regard to independent country information about the treatment of failed asylum seekers in Iran. 

11. For reasons which it gave, the Tribunal was not satisfied that the Iranian authorities perceived the Applicant’s father to be an apostate or infidel, that the Applicant, as his son, would be so perceived, that his parents had promoted or intended to promote conduct considered un-Islamic in Iran; that the Applicant would be harmed in any way if his parents were found to participate in such conduct; or that the Applicant would be considered the son of spies, and hence a spy, in Iran. 

12. As indicated, the only ground relied on by the Applicant in these proceedings relates to the Applicant’s claims to fear harm as an undocumented child.  This ground was addressed by the Tribunal as follows:

    (151) The claim that the applicant will be undocumented and subjected to serious or significant harm in Iran on that basis is grounded in evidence that his parents will not approach the Iranian authorities, or take the relevant administrative steps needed to have him documented.  It is also suggested in [his father’s] oral evidence that the applicant will not be given documentation as he is considered the child of an apostate and infidel, being [his father].  However, as reasoned above, the Tribunal, is not satisfied that [the Applicant’s father] is viewed an apostate or infidel in Iran or that the applicant, as his young child, would be viewed as the son of an infidel or apostate.  It follows that the Tribunal is not satisfied, on the evidence provided, that the applicant would be denied documentation evidencing his Iranian nationality and registration should his parents follow the administrative steps required to obtain that documentation. 

    (152)  [The Applicant’s father] gave evidence to the Tribunal that he and his wife haven’t gone through “all this” trouble just to approach the Iranian embassy to document his son, and he and his wife “have no interest in getting the documents to register their son” in Iran.  The Tribunal is satisfied on the evidence presented that the applicant’s parents do not intend to take the administrative steps required to have their son registered in Iran, or to acquire documentation for him such as an Iranian ID card or an Iranian passport.  As a matter of practical reality, the Tribunal is satisfied that this will result in the applicant not being able to enter Iran.

    (153) Notwithstanding this, the Tribunal must assess, even if only as a hypothetical possibility, what the applicant may face should he enter Iran.  The submissions made are that, as an undocumented child he will not be able to access education or medical services, and that his situation will be similar to undocumented persons such as foreign nationals and Faili Kurds.  However, the Tribunal is not satisfied on the evidence before it that the situation for a child in Iran who is considered under Iranian law to be an Iranian national by virtue of his birth to an Iranian national father would be the same as for an undocumented foreign national or Faili Kurd. 

    Regarding whether or not the applicant will in fact be an undocumented child in Iran, the Tribunal makes the following observations.  

    (154) Regarding the applicant’s parents’ claimed reluctance to approach the Iranian authorities to have the Applicant registered and documented, the Tribunal has considered whether this arises from a desire to remain discreet to avoid persecution by the Iranian authorities.  However, based on the Tribunal’s cumulative findings of fact and reasoning above, the Tribunal is not satisfied that the applicant’s parents face a real chance of persecution involving serious harm from the Iranian authorities in the reasonably foreseeable future, as they have claim (sic) nor is the Tribunal satisfied, based on its cumulative reasoning above, that they truly believe themselves to be.

    (155) The Tribunal accepts, based on reliable independent sources footnoted, that Iranian children are required, under Iranian law, to be reported to the Iranian authorities within 15 days of their birth, regardless of their nationality, and that the birth of children of Iranian nationals residing outside Iran should be reported to the local or nearest Consulate of Iran [reference to UNICEF report on birth registration in Iran].  The Tribunal also accepts that if a child’s birth is not reported within that time, the persons responsible would be prosecuted, pursuant to Article 3 of the Law on Contravention, Crimes and Punishments Concerning Registration of Personal Status enacted by the Council of Expediency (August 1991), and in the case of a conviction, the violator would be liable to have the child registered and to pay a fine.  The Tribunal is satisfied that any such penalty is one faced by the parents of the Applicant, and not the Applicant himself.  The Tribunal accepts that these laws are reported to be not comprehensive enough and not enforced/properly functioning [reference to UNICEF report].

    (156) The Tribunal accepts that the most commonly used identity cards in Iran are issued after the registration of a child’s birth [reference to independent country information] and that, for the last ten years and continuing, every Iranian national needs to have such an ID card as well as a birth certificate, with a person’s national ID number being requested by authorities on various occasions such as issuing passports, marriage certificates and land registry.  The Tribunal also accepts that each individual is traceable and identifiable by their ID number.  The Tribunal has also considered information on the Iranian Ministry of Foreign Affairs website which indicates that documentation comprising the following is required for a person who has never previously possessed an Iranian passport (which the Tribunal accepts the applicant to be) in order to obtain an Iranian passport:  a completed application form for the issuance of a first passport;  an original birth certificate;  an original residence permit card.  The Tribunal accepts this evidence.  On the basis of the cumulative evidence before it, taking into account the young age of the applicant and that the Iranian Minister of Foreign Affairs requires an Iranian national to provide their registration and ID documents in order to be issued with their first Iranian passport, the Tribunal is satisfied that the applicant, if he were to enter Iran in the reasonably foreseeable future, could only do so as the holder of an Iranian passport, and that he could only be the holder of an Iranian passport if he has been registered and holds the necessary ID to facilitate his documentation.  It follows that, if the applicant were to enter Iran, he would do so only as a documented child.  The Tribunal is also satisfied that, if the applicant were to return to Iran, he would only do so with his parents, and that he would enter Iran as a documented Iranian national in the company of his parents.  It therefore follows, on the basis of the evidence before it, that the Tribunal is not satisfied that the applicant faces any risk of harm as an undocumented child in Iran, as the Tribunal is not satisfied that he will be removed or returned to Iran as an undocumented child.

1. The Tribunal went on to find, based on all the evidence before it, including cumulatively, and based on its cumulative reasoning and findings of fact, that it was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason or that there were substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to Iran there was a real risk he would suffer significant harm as defined in s.36(2A) of the Act. It affirmed the decision not to grant the Applicant a protection visa.

Whether Tribunal erred in its consideration of the undocumented child claims

1. The Applicant sought review by Application filed in this Court on 27 February 2013.  He now relies on an Amended Application filed with leave of the Court on 26 August 2013.  There is one ground in that application.  It is that the Tribunal “asked the wrong question and/or took into account an irrelevant consideration, or failed to apply the statutory test, and thus erred in the exercise of its jurisdiction”. 

2. The particulars to this ground (including references to certain pages in the bundle of relevant documents (RD)) are as follows:

   1.1  The Applicant claimed that he would be persecuted in Iran because he would be an undocumented person or child (RDP59, RDp331). 

   1.2  The Tribunal accepted that the Applicant’s parents would not obtain documentation for him (RDp382, [152]).

   1.3  Having first correctly recognised that it needed to assess as a hypothetical possibility what the Applicant would face if returned to Iran (at RDp382 [153]), and having considered the implications for the parents (at RDp32, [154] and [155], the Tribunal erroneously concluded or truncated its consideration by concluding that he would not be at risk as an undocumented child because he could not be returned as an undocumented child (at RDp383 [156]).

   1.4  The Tribunal should have asked whether the Applicant’s fear of persecution as a member of a particular social group (undocumented children in Iran, or undocumented individuals in Iran), if he were returned to Iran was well-founded (Chan (1989) 169 CLR 379, per Mason J, at [12]; section 36 of the Migration Act 1958 (Cth)).

   1.5 By asking whether the Applicant could, in fact, return to Iran as an undocumented child, the Tribunal asked the wrong question, took into account an irrelevant consideration, misunderstood the nature of the task it had to perform, and erred in its application of section 36 of the Migration Act, and thus erred in the exercise of its jurisdiction.

3. Counsel for the Applicant submitted that in paragraph 152 of its findings and reasons the Tribunal had clearly and categorically accepted that the Applicant’s parents would not obtain identity documentation for the Applicant and that by necessary implication if the Applicant were in Iran he would be without documentation.  The Tribunal was said to have recognised that the Applicant’s parents did not intend to (and hence would not) register him or take any other steps to obtain documents for him.  This recognition was said to involve an acceptance that the Applicant would not acquire such documentation and hence that he would not have any documentation or official status if he were returned to Iran in the reasonably foreseeable future. 

4. It was acknowledged that the Tribunal had then (correctly) accepted that it had to assess what the Applicant would face, hypothetically, should he enter Iran, but contended that it was apparent from what followed in the Tribunal’s reasons that the artificiality of such a task had ultimately “overcome” the Tribunal.  

5. The Applicant also acknowledged that the Tribunal had recorded the submission that as an undocumented child the Applicant’s position would be “similar to” undocumented persons such as Faili Kurds and foreign nationals.  However it was submitted that in finding in paragraph 153 that it was not satisfied that the position would be “the same” for the Applicant as for a foreign national or Faili Kurd, the Tribunal had only “half-performed” its task.  It was contended that the Tribunal failed to address and resolve the question of what consequences the Applicant was at risk of suffering as an undocumented child or person if he were returned to his country of nationality. 

6. Counsel for the Applicant submitted that, instead of continuing to address the assessment of the hypothetical possibility of what the Applicant may face as an undocumented child or person should he return to Iran, at paragraph 156 the Tribunal had fallen into error by performing the task that it had earlier acknowledged that it was not supposed to perform, in concluding, in essence, that the Applicant could not be returned to Iran without documentation, that he would not return unless he had documentation, and that therefore he would not be at risk of harm as an undocumented child in Iran.  It was submitted that this was not the question which the Tribunal had to address. 

7. It was pointed out that whether or not the Applicant could or could not return to Iran did not have to be determined by the Tribunal, as the question was whether the Applicant’s fear of persecution if he were returned was “well-founded”, not whether his return was possible.  This was said to be clear from Article 1A(2) of the Refugees Convention and Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62.

8. Thus, it was submitted that the question the Tribunal should have asked was whether, if the Applicant was returned to Iran without registration of his birth or documentation, he would be at risk of harm that would fall with the Convention definition of persecution by reason of his membership of the particular social group of undocumented children in Iran. It was contended that in addressing the question as it did, the Tribunal had asked the wrong question or taken into account an irrelevant consideration and that it had thus avoided the task that it had to perform pursuant to s.36 of the Act.

9. The First Respondent submitted that there was no necessary implication that the Applicant would enter Iran as an undocumented child as a result of his parents’ stated intention.  Contrary to the assertion for the Applicant, it was submitted that the Tribunal had not accepted that the parents would not obtain documentation for the Applicant.  It was contended that it was apparent from the Tribunal’s reasons for decision as a whole that, having comprehensively rejected the various claims of persecution made by the Applicant’s parents, the Tribunal was not satisfied of their claimed reluctance to obtain the necessary documentation for the Applicant.  It was submitted that while the Tribunal recognised that the Applicant’s parents stated that they did not “intend” to acquire the relevant registration documentation for the Applicant, the Tribunal was not satisfied that their claimed reluctance to obtain the necessary documentation had any basis.  It was said to be for this reason that the Tribunal was not satisfied that the Applicant would be removed or returned to Iran as an undocumented child.  In other words, the First Respondent submitted that the Tribunal acknowledged the parents’ stated intention, but did not accept that they would carry through with it. 

10. It was submitted that in assessing the Tribunal’s consideration of these issues, it was appropriate to have regard to the manner in which the claims had been put for the Applicant.  In particular it was suggested that the claim that he would suffer harm as an undocumented child had in essence been put on the basis that his parents would be “unable” to approach the Iranian authorities and could not obtain documentation for him because he was born in Australia and because of their political profiles in Iran.  Thus there was said to be a symbiotic relationship between the claim about the Applicant being undocumented and the parents’ own claims of persecution. 

11. The First Respondent contended that the starting point in the Tribunal’s reasoning in relation to the undocumented child issue was that it did not accept that the Applicant’s parents faced any real chance of persecution involving serious harm from the Iranian authorities as claimed by them and that they did not truly believe that they would be subjected to persecution in Iran.  It was pointed out that the Tribunal had concluded that the Applicant’s parents did not have a political profile in Iran;  that the claims they made lacked credibility; that they had both previously travelled outside Iran and returned without any persecution or detection by the authorities;  that it did not accept that the Applicant’s parents or the Applicant would be considered apostates or infidels;  and that it did not accept that the Applicant would be considered to be the son of spies.  It was said to be clear that having comprehensively rejected the various claims of persecution made by the Applicant’s parents, the Tribunal was not satisfied of their claimed reluctance to obtain the relevant registration documentation.

12. The First Respondent also submitted that the reasons the Applicant’s parents had given to the Tribunal for not being able or willing to get documentation were because of their own asserted profiles (in effect tied to the claimed activities of the father) and hence that there was a logical connection between the Tribunal’s rejection of the claims of imputed political profile by reason of the Applicant’s father’s conduct and the undocumented child claim which (as it pointed out in paragraph 151), was tied to his father’s claims. 

13. On this basis it was contended that, read fairly, in paragraph 154 of its reasons for decision the Tribunal clearly considered, but did not accept, the claimed reluctance of the Applicant’s parents to obtain documentation for their child, given that it did not accept their claims about their own profile or that they truly believed themselves to face a real chance of persecution involving serious harm from the Iranian authorities and found that the parents’ claimed reluctance to approach the authorities was not made out.  The First Respondent submitted that while the Tribunal acknowledged the parents’ stated intention, it did not accept this claim because such stated intention was premised upon the parents’ own concern about their political profile which was not accepted by the Tribunal. 

14. In any event, the First Respondent submitted that, contrary to the Applicant’s submissions, the Tribunal did consider what consequences would flow in the event that the Applicant entered Iran as an undocumented child.  It was said to have concluded that the Applicant would not be exposed to harm as an undocumented child because he was in a different position to other foreign nationals as his father was an Iranian citizen (which entitled him to Iranian citizenship) and because the penalty for being unregistered was a fine that would be imposed on the Applicant’s parents and not on the Applicant himself. 

15. It was also submitted that in circumstances where the only material presented to the Tribunal by the Applicant’s representative related to Faili Kurds and foreign nationals, it sufficed for the Tribunal, in assessing the hypothetical possibility that the Applicant may enter Iran and the harm that he may face, to find as a matter of fact that the situation for a child who was considered under Iranian law to be an Iranian national because of his birth to an Iranian national father would not be the same as for an undocumented foreign national or Faili Kurd. 

Resolution

1. It is not in dispute that the question of whether the Applicant had a well-founded fear of persecution in Iran in this context had to be addressed on the basis of what would happen if he were to return to Iran, and not on the basis of whether he could return to Iran.  It was necessary for the Tribunal to consider not whether the Applicant could in fact return to Iran as an undocumented child, but rather whether the Applicant had a well-founded fear of persecution in the reasonably foreseeable future as a member of the particular social group of undocumented children in Iran (or undocumented persons in Iran) if he were returned to Iran. 

2. It is relevant to have regard to all the bases on which it was claimed that the Applicant would be an undocumented person or child in Iran.  Initially his claims were presented as intertwined with those of his parents and reliance was placed on statutory declarations outlining the parents’ claims.  As described by the Tribunal, in the course of the interview with the delegate and in subsequent written submissions the Applicant’s representative also claimed that because of his parents’ fears of the Iranian authorities they would not be able to obtain the documentation needed to register their child.  The Tribunal noted in relation to the delegate’s decision, that this was a claim that was tied to the father’s claimed political opinion and his claimed involvement in post-election protests.  This part of the claim was that the Applicant could not apply for a passport from the Iranian consulate as his father was known to the Iranian authorities for his adverse political opinions. 

3. Notably, however, in the advisor’s written submission of 19 January 2012 it was also claimed that the Applicant would be subject to additional persecution (beyond that by reason of his parents’ political dissent) because he would be undocumented.  It was said that his parents could not obtain documentation for him because of their political profiles.  However it was also claimed he would be undocumented because he was born in Australia. 

4. Despite this, the delegate saw the Applicant’s claims as tied to and as an extension of his father’s claims.  He found that the claim the Applicant could not apply for a passport from the Iranian Consulate “revolves around” the claim his father was known to the Iranian authorities for his adverse political opinion.  The delegate did not accept the parents’ claims for protection were based on fact and hence did not accept the Applicant’s claims.  He did not consider the separate claim that the Applicant feared persecution as an undocumented child or person in Iran. 

5. What occurred in the course of the Tribunal review is to be seen in light of this background.  According to the Tribunal, at the first hearing it raised with the parents the fact that the Applicant’s claims appeared to rely entirely on those made by his parents.  At the same hearing the Applicant’s father claimed he and his wife would be afraid to get documentation for their son and that “they” would never give him documentation.

6. The nexus between the parents’ fears and their claimed inability to obtain documents for their son was also discussed at the resumed Tribunal hearing, at which the Tribunal pointed out that the review related to the Applicant’s circumstances and any risk of harm he may face in Iran.  The only evidence before the Court of what occurred in the hearing is the Tribunal’s account in its reasons for decision.  No issue has been taken about the accuracy of that account.  The extent of the claims ultimately made for the Applicant in relation to being undocumented in Iran emerged more clearly in this hearing. 

7. After a discussion of issues about the parents’ claims addressed in the s.424A letter, the Tribunal stated that it continued to explore other matters relevant to the Applicant’s claims with his father. It recorded:

   It asked if [the Applicant’s father] can express, in his own words, what harm he thinks the applicant will face in Iran and why.  He responded that: the applicant is his son, and he, ie, [the Applicant’s father], is considered an infidel who has opposed them, so the applicant will also be a target.  When asked what he thinks will actually happen to the applicant in connection with [the Applicant’s father]’s claimed political profile, he responded that if his son wants to go to Iran, what identity and birth certificate would he get?  The applicant’s mother and father would have to be there to get the applicant’s documents.  When asked whether he is referring to the ability of the applicant to be registered as an Iranian national and get an Iranian passport, he responded that if the applicant goes to Iran, [the Applicant’s father] can’t go and can’t get documents and the applicant will be considered an infidel like his father.  He can’t even get the documents to get into Iran. 

   The Tribunal noted its understanding that independent information indicates that, generally, a child born outside Iran to an Iranian father is considered an Iranian national.  He responded that this doesn’t apply to a child whose father is considered an infidel, apostate and opponent to the government.  However for another Iranian father who has no problems with the Iranian government, his child could go back to Iran.  [The Applicant’s father] does not have any Iranian identity documents.  The identity documents he submitted with his own assessment were copies.  The originals were in Iran but he doesn’t know where they are now.  His sister had sent him the copies he previously submitted.  She only had copies, not the originals.  If he tries to apply for identity documents for his son the Iranian authorities would ask for him.

   The Tribunal put to [the Applicant’s father] that, from what he is saying, the applicant will not obtain the documents to enter Iran.  He responded that this is correct, and their lives are in danger so that they cannot go to Iran.  

8. After further discussion, focusing on the Applicant’s claims as a child of a suspected political opponent, apostate or spy, the Tribunal asked the Applicant’s father what harm he thought the Applicant might face if the Applicant managed to enter Iran undocumented.  The Applicant’s father was recorded as stating that:

   …unless you can get documents for your identity and religion you cannot live in Iran.  You need documentation for everything, including going to school, getting a job, university.  For an Iranian to live freely in Iran, they must be Shia.  You cannot say you are Bahai or an infidel and get documents.  The applicant had no religion right now and has to grow up and choose his religion. 

9. The Tribunal noted that it appeared from the information provided that both the Applicant’s parents were recorded as Shia, to which the Applicant’s father responded that he was born Shia, but he did not “like the name”, and “his religion is in his heart”.  The Tribunal went on to discuss aspects of the Applicant’s father’s claims to be an apostate and a failed asylum seeker.  The father claimed he did not think the Applicant would even get the documents for Iran because his father was considered an apostate, that the Applicant would not be able to return to Iran and that if he did he would be harmed to get at his father who was viewed as an escapee. 

10. The Tribunal explained the Applicant’s father that it must consider any risk of harm to the Applicant in all the circumstances, including if the father’s own circumstances were accepted in part, in full or not at all.  Relevantly, the Applicant’s father responded that the Applicant needed documents which he did not have and also that in Iran his (the father’s) profile would be known. 

11. The Tribunal then put to the Applicant’s father for comment that the Tribunal may not accept that the father himself had an adverse profile in Iran and that the Applicant’s young age would suggest that he did not have his own profile.  Importantly, according to the Tribunal the father responded:

    …that the main thing is that the applicant can’t get documents.  This would be the case also if the applicant was in Iran.  He would need evidence of who his parents are.  [The Applicant’s father] cannot approach the Iranian authorities to get this documentation for the Applicant.  Neither he nor his wife have gone to all this trouble just to ask the Iranian embassy for documents.  His wife escaped Iran as well, as she told the authorities initially that she has separated from [the Applicant’s father] and then she fled with him.  She would have no interest in getting the documents to register their son.  Even if his wife was willing to approach them they would still need the father’s signature.  (Emphasis added.)

1. The father also claimed that he thought that if his son went to Iran without documentation he would be deported. 

2. The Tribunal suggested to the advisor that independent information already submitted regarding the treatment of Faili Kurds did not appear to relate to the Applicant’s circumstances. 

3. It was in that context that the advisor clarified the Applicant’s claims in post hearing written submissions which referred specifically to a claim based on membership of the particular social group of undocumented children in Iran.  It was said by the advisor to reflect his birth in Australia, the fact his birth had not been registered with the Iranian authorities and the fact that he had no Iranian identity documentation. 

4. It is apparent from a consideration of all the material before the Court that, contrary to the First Respondent’s submission, the Applicant’s claim based on being an undocumented person in Iran was not merely symbiotic to his parents’ own claims of persecution. 

5. Moreover, while initially the Applicant’s parents had referred to their inability (based on their own fears) to approach the Iranian authorities in respect of registration of the child’s birth, they also later referred to his birth in Australia, the absence of identity documents and their unwillingness to ask the Iranian Embassy for documents to register their son. 

6. As, the Tribunal recognised (at paragraph 151), the claim the Applicant would be undocumented was “grounded in evidence that his parents will not approach the Iranian authorities or take the relevant administrative steps needed to have him documented”. 

7. Insofar as it was claimed that the child “will not” be given documentation as the son of an apostate and infidel, this aspect of the claim was rejected by the Tribunal.  However, reading the Tribunal decision fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6) I am satisfied that while the Tribunal did not accept that the Applicant would be denied documentation “should his parents follow the administrative steps required to obtain that documentation”, it did accept, in particular, on the basis of the father’s evidence at the resumed Tribunal hearing to which it referred, that the parents “do not intend” to take the administrative steps required to have the Applicant registered in Iran or to acquire documentation for him such as an Iranian ID card or passport. 

8. The Tribunal’s statement that it was satisfied on the evidence presented that the Applicant’s parents did not intend to take such steps or to acquire such documentation is expressed clearly and categorically.  The Tribunal had recognised that the Applicant’s claim that he would be undocumented and subjected to harm in Iran on that basis was grounded in evidence that his parents “will not” approach the Iranian authorities or take the relevant administrative steps.  At no point did the Tribunal make an adverse credibility finding in relation to whether it accepted the parents’ evidence in this respect. 

9. It is the case that the Tribunal found (at paragraph 154) that there was no objective basis for the parents’ claimed reluctance to approach the Iranian authorities arising from a desire to remain discrete to avoid persecution by the Iranian authorities.  In that context the Tribunal referred to its cumulative findings of fact and reasoning that it was not satisfied that the Applicant’s parents faced a real chance of persecution involving serious harm from the Iranian authorities as they claimed or that they truly believed themselves to be at such risk.

10. However there is a clear difference between not accepting the reasons for the parents’ claimed reluctance to obtain documentation for their son as an objective justification for such reluctance and not accepting that they had the intention stated.  As the Tribunal had recognised in paragraph 152, the Applicant’s father’s evidence at the Tribunal hearing was that he and his wife had not gone through “all this” trouble just to approach the Iranian embassy to document their son and that he and his wife had “no interest in getting the documents to register their son” in Iran.  Seen in context, the Tribunal’s acceptance that the Applicant’s parents did not intend to take the necessary steps, was not merely an acknowledgment of their stated intention that had already been described by the Tribunal, but rather an acceptance that that was their intention.  The Tribunal did not make a finding that it was not satisfied that the parents would maintain their stated intention to refrain from taking the necessary steps to have their son registered in Iran or to acquire documentation for him.  Nor can it be inferred that it proceeded on this basis. 

11. Rather, consistent with the Tribunal’s acceptance that it was the Applicant’s parents’ intention not to seek documentation for their son or to take the necessary steps to have him registered, it acknowledged that as a “matter of practical reality” it was satisfied that this would result in the Applicant not being able to enter Iran.  The Tribunal recognised, correctly, that notwithstanding this it must assess, “even if only as a hypothetical possibility”, what the Applicant may face should he enter Iran.  Had the Tribunal not accepted the parents’ claimed reluctance (as the First Respondent suggested could be inferred) it would not have been relevant for it to refer to the “practical reality” and the “hypothetical possibility” in this manner. 

12. Having stated that it must assess as a hypothetical possibility what the Applicant may face should he enter Iran, the Tribunal then started to address the situation for the Applicant as an undocumented child in Iran.  However, as considered further below, the Tribunal diverted from and did not complete this task.  Rather it considered whether or not the Applicant “will in fact be an undocumented child in Iran”. 

13. Apart from rejecting the objective basis for the claimed reluctance of the Applicant’s parents, the Tribunal observed in paragraph 155 that the penalty that would be imposed for violation of the Iranian law in relation to registration at birth would be a penalty faced by the parents of the Applicant and not the Applicant himself (although there was no consideration of whether or not the parents would be able to pay such penalty and, if not, the impact on the Applicant). 

14. The Tribunal then addressed the Iranian requirements for an ID card and other prerequisites for an Iranian passport.  Contrary to the First Respondent’s contention, what follows does not support the conclusion that the Tribunal did not accept the parents’ stated intention not to seek the necessary documentation or passport.  Rather, the Tribunal found that certain documents were required in order to obtain an Iranian passport.  Given the youth of the Applicant, it was satisfied that if the Applicant were to return Iran in the reasonably foreseeable future he “could” only do so as the holder of an Iranian passport and that he “could” only be the holder of an Iranian passport if registered and holding the necessary ID to facilitate his documentation.  Based on the discussion of the documentation needed to enter Iran, the Tribunal found that the Applicant could only enter Iran as the holder of a passport, so if he were to enter Iran he would do so “only” as a documented child.  It was on the basis of considering whether the Applicant could return to Iran that the Tribunal found that he did not face any risk of harm as an undocumented child in Iran as it was not satisfied he would be removed or returned to Iran as an undocumented child. 

15. It is apparent that in this part of the Tribunal’s reasons for decision it was considering whether the Applicant “could” return to Iran.  I am not persuaded that the Tribunal was considering whether the Applicant would have a well-founded fear of persecution if he returned to Iran as a documented child on the basis that his parents would take the steps required to have him registered or to acquire documentation such as an identity card or a passport.  It may have been open to the Tribunal to reason in that way.  However I am not satisfied that it can be inferred that the Tribunal did not accept that the parents in fact held and maintained the stated intention. 

16. In other words, I am not satisfied that the Tribunal can be seen to have implicitly rejected the parents’ claim that they did not intend to apply for the necessary documentation.  The Tribunal’s lack of satisfaction about the existence of an objective basis for the parents’ claimed reluctance (and the truth of their claims to fear persecution) does not involve a necessary implication of a lack of satisfaction with the parents’ stated intention not to apply for documentation for their son, particularly given the Tribunal’s express acceptance that this was their intention.  The fact that it may have been open to a decision-maker not to accept such a stated intention is not to the point. 

17. In proceeding on this basis the Tribunal fell into jurisdictional error in the manner contended for by the Applicant.  It erroneously asked whether the Applicant “could” return to Iran as an undocumented child, rather than asking whether his fear of persecution as an undocumented child or person if he were returned to Iran was well-founded. 

18. As mentioned, the Tribunal did briefly discuss the correct question, being the hypothetical possibility of what the Applicant may face as an undocumented child should he enter Iran (at paragraph 153 of the reasons for decision).  However such consideration was incomplete.  The Tribunal referred to submissions that the Applicant would not be able to access education or medical services and that his situation would be “similar” to undocumented persons such as foreign nationals and Faili Kurds.  However the only finding it made in this respect was limited to a finding that the Applicant’s position as a child considered under Iranian law to be an Iranian national by virtue of his birth to an Iranian national father would not be “the same” as for an undocumented foreign national or Faili Kurd.  The Tribunal made no finding as to what the position would be for a person in the position of an undocumented child of an Iranian national father, in particular in relation to access to education and medical services. 

19. The First Respondent suggested the Tribunal’s approach sufficed, given that the only material presented to it in support of the Applicant’s claims was said to relate to Faili Kurds.  However in written submissions of 30 November 2012 the Applicant’s advisor not only expressed the Applicant’s claim to be a member of a particular social group of undocumented children in Iran generally, on the basis that his birth had not been registered as he had no Iranian documentation, but also referred to attached independent country information in support of the proposition that “undocumented people” in Iran were unable to access essential services, including health care, education and employment, exposing them to significant subsistence-based threats.  The attached country information should be seen in light of this general proposition.  In the discussion of independent country information the advisor made it clear that the country information in question was said to be relevant to the issue of what was described as “undocumented people in Iran”.  It was submitted by the advisor that recent independent country information showed that “any undocumented persons such as foreign nationals, Faili Kurds and refugees, are systemically denied essential services, education and employment in Iran”. 

20. The advisor also submitted that independent country information already submitted in this matter relating to the plight of undocumented persons living in Iran (who were said to include undocumented Faili Kurds and undocumented Afghan refugees) was relevant to the Tribunal’s assessment of the future prospects for the Applicant “as he will have no way to prove his Iranian nationality, and will not be able to produce identity documents on demand”. 

21. The Applicant’s advisor did not submit that the Applicant’s position would be “the same” as Faili Kurds and refugees.  Nor did his parents.  The independent information cited was not confined to information relating to Faili Kurds (albeit there was information in that respect). 

22. In its reasons for decision, while the Tribunal recognised the Applicant’s claim was that his situation would be “similar” to undocumented persons such as foreign nationals and Faili Kurds, it dealt only with the issue of whether the situation for a child considered an Iranian national by virtue of his birth to an Iranian national father would be “the same” as for an undocumented foreign national or Faili Kurd.  The Tribunal reached no conclusion as to what the situation would be for the Applicant as an undocumented child (albeit one who would not be denied documentation should his parents follow the administrative steps required to obtain that documentation) in a situation where the parents did not intend to take such steps.  

23. It may be that the Tribunal’s failure to address this issue reflects the fact that it then proceeded to consider whether the Applicant would in fact be an undocumented child in Iran on the basis that he could not return to Iran otherwise than as the holder of an Iranian passport.  In any event, this aspect of its reasoning does not adequately address the claim made by the Applicant on the basis of being an undocumented child in Iran.  Nor does it lead to the inference that the Tribunal did not accept the parents’ stated intention that they would not apply for the necessary documentation. 

24. Similarly, in its discussion (at paragraph 155) of the penalties for failure to register a child the Tribunal accepted that, despite the requirement of registration within 15 days, registration could be sought and obtained after that time, but that if it was the parents would be prosecuted and fined.  However these findings did not address the consequences for the Applicant child.  Indeed the Tribunal did not go on to discuss the implications for the Applicant in the event that his parents were unable to meet any such fine (beyond the general acceptance that the laws were reported not to be comprehensive enough, enforced or properly functioning). 

25. I am not satisfied that the Tribunal’s findings in relation to the situation for the Applicant as an undocumented child are such that the Tribunal sufficiently addressed the claim that the Applicant had a well-founded fear of persecution as an undocumented child in Iran, or that it sufficiently considered the complementary protection criterion in that respect.  I am satisfied that jurisdictional error has been established on the basis contended for by the Applicant.  The matter should be remitted to the Tribunal for reconsideration according to law. 

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date:  25 October 2013