FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v EWP17 [2019] FCA 205

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 6 August 2018 be set aside.

3.    In lieu thereof, it be ordered that the application for judicial review be dismissed, with costs fixed in the sum of $6,000.

4.    The respondent pay the first appellant’s costs, of and incidental to the appeal, to be taxed if not agreed.

THE COURT NOTES THAT:

1.    In any taxation of the costs in respect of the appeal, the appellant has signified that he will not seek costs in respect of travel or accommodation for counsel.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    At common law, there is no duty on the part of a person exercising executive or administrative power to furnish reasons for a decision: see Public Service Board Public Service Board of NSW v Osmond (1986) 159 CLR 656. With the aim of promoting better decision-making and understanding of decisions, Parliament has chosen to make express provision in many if not most circumstances of executive or administrative decision-making for the furnishing of reasons for a decision. In the case of the Immigration Assessment Authority (Authority), such express statutory provision is to be found in s 473EA(1)(b) of the Migration Act 1958 (Cth) (Act).

2    Against the background of such statutory provision for the furnishing of reasons, it is only natural that, in the context of judicial review, attention focuses upon reasons delivered by an administrator in relation to whether the decision of that administrator is attended with jurisdictional error. A tempering sentiment in relation to such focus is that notably emphasised by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang). In short, an administrator’s reasons must not be scrutinised narrowly and with an eye for error. The frequency of encounter with that exhortation does not in any way diminish its force. This case exemplifies the need for a principled application of that exhortation.

3    The jurisdictional error which found favour in the court below was that identified, notably, in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. An administrative body such as the Authority will, having regard to that case, commit jurisdictional error in relation to a claim for a visa under the Act if that body fails to engage with a particular – sometimes termed “integer” – of a claim for asylum.

4    In this case, the learned primary judge considered that such an error was present. Highlighting why that conclusion was reached requires first something of an excursion into the identification of the basis of the respondent visa applicant’s claim and how it has been regarded and determined over time by the appellant, Minister for Home Affairs (Minister) and the Authority. It then requires that I set out how it was that the learned primary judge considered that a particular of that claim had not been dealt with by the Authority.

5    The respondent is a citizen of the Islamic Republic of Iran. He is an ethnic Kurd and a non-practising Shia Muslim. Using his Iranian passport, the respondent left that country and travelled initially to Indonesia. He then embarked by boat for Australian territory, arriving at Christmas Island in March 2013. The circumstances of his arrival were such that he was then, for the purposes of the Act, an unauthorised maritime arrival.

6    Some years later, on 11 January 2016, the respondent was invited to, and took up the opportunity, to lodge an application for a Temporary Protection visa or a Safe Haven Enterprise visa (visa). He applied for the latter class of visa on 19 April 2016. That application was accompanied by a statutory declaration of that same date. At [34] of that statutory declaration, the respondent stated:

34.    I will not go back to Iran voluntarily because I fear that the Ettela’at would punish me. I fear that I will be detained, questioned and tortured on arrival at the airport because I am returning as a failed asylum seeker. The authorities would want to know why I had left Iran in the first place and my profile will be checked. I believe the Ettela’at know by now that I was involved in antigovernment protests and that I was shot. The combination of being a Kurd, being involved in protests and seeking asylum in Australia can lead them to conclude that I am against the Iranian government and accuse me of being involved in political activities.

Suffice it to say, on its initial assessment by a delegate of the Minister, the respondent’s application was refused. That decision was affirmed by the Authority on 18 January 2017.

7    That decision by the Authority, though, was the subject of an order, consensually promoted to the Federal Circuit Court by both the Minister and the respondent, quashing it. That order was made by the Federal Circuit Court on 31 July 2017.

8    It then fell to the Authority again to consider the delegate’s decision. On 29 September 2017, the Authority again affirmed the delegate’s decision. The respondent then sought the judicial review of that second decision of the Authority by the Federal Circuit Court. On this occasion, there was no consensual promotion that the Authority’s decision be quashed. Nonetheless, on 6 August 2018, that court ordered that the Authority’s second decision be quashed. In so doing, the Federal Circuit Court apprehended that the circumstances of that case were not materially distinguishable from circumstances which had led Charlesworth J to hold that a decision of the Federal Circuit Court affirming a decision of the Administrative Appeals Tribunal was in error in CLS15 v Federal Circuit Court of Australia (2017) 72 AAR 502 (CLS15). The critical passage in the Federal Circuit Court’s reasons for judgment is:

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

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

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

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

[Emphasis in original]

9    Is it not necessary, in my view, in this case to decide, as was part of the Minister’s submissions, whether CLS15 was or was not correctly decided. Being a decision of another judge exercising appellate jurisdiction, I would depart from it only if persuaded that it was clearly wrong. To resolve this appeal it is not necessary to be persuaded at all about whether CLS15 was or was not clearly wrong, but rather to assume that it was correctly decided. That is because the Minister’s alternative submission was that there was a distinguishing feature on the facts of this case. That distinguishing feature was said to be found in a paragraph in the Authority’s reasons, not cited by the learned primary judge in the passage quoted. At [51], immediately preceding the passage cited in the reasons for judgment below, the Authority stated:

51.    In a written submission to the delegate it is claimed that, the mere fact that the applicant’s return will be facilitated by both the Australian and Iranian governments, will mean he is likely to come under scrutiny of Iranian officials and questioned on return by the authorities who will become aware of his past. In his new statutory declaration provided to the IAA, the applicant claims that he knows of some asylum seekers who returned voluntarily and were forced to sign into their Facebook accounts and were asked questions about their activities in Australia and their refugee claims. The applicant claims that Iranian asylum seekers know each other and know about each other's activities and that there are Iranian spies everywhere and even in Australia. I am not satisfied on the evidence that there is a real chance that Iranian spies or other asylum seekers have, or will, provide information to the Iranian authorities about the applicant.

10    For completeness, and apart from the statutory declaration annexed to the visa application, reference additionally needs to be made to a further statement of the respondent, made on 5 January 2017, which was before the Authority. In that statement, at [18] – [19] and by reference to the decision of the Minister’s delegate, the respondent stated:

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

19.    I know of some asylum seekers who have returned voluntarily and they have been forced to sign into their Facebook accounts and were asked questions about their activities in Australia and their refuge claims. I also know that Iranian asylum seekers know each other and know about each other's activities. Everyone knows that there are Iranian spies everywhere and they are even here in Australia.

11    In CLS15 at [16], Charlesworth J stated:

16.    By his first ground of appeal, the appellant contends that the Tribunal’s disregard of his claims to be converted was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. See also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [7], [11] – [12] (Allsop CJ); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [62] (Allsop CJ, Griffiths and Wigney JJ). It is submitted that the Tribunal’s conclusion was not reasonably open on the evidence before it and was, therefore, “legally illogical and irrational”.

12    Understanding that paragraph requires that [48] of her Honour’s reasons be set out:

48.    The finding is said to be implicit in paragraph 31 of the Tribunal’s reasons, read in the context of the two paragraphs that follow:

31.    The applicant claimed to fear persecution on return to Iran for having sought asylum in Australia. The Tribunal relies on information provided by DFAT to find there is not a real chance of the applicant being targeted for this reason:

The large Iranian diaspora seems to move back and forth between foreign countries and Iran with little difficulty and many Iranians have citizenship or residence abroad, including in North America, Europe and Asia ...

According to Iranian law, it is an offence to leave Iran illegally (ie without a passport). The penalty for leaving the country illegally is either two to six months imprisonment or a fine of Rials 2000-20,000, or both. Press reports suggest there is significant leeway by judges in interpreting the law due to individual circumstances. The destruction of passports is not penalised under the laws regulating passports ...

Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily to Iran. However, Iranian overseas missions will not issue travel documents to an Iranian that a foreign government wishes to return involuntarily. Officials have said Iran would assist with any person who wished to voluntarily return to Iran, even if they left irregularly. Anecdotal evidence suggests that official do not attempt to prosecute a voluntary returnee - largely because most failed asylum seekers leave Iran legally (eg regular departure through airports) ...

A voluntary returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians.

32    The Tribunal finds there is nothing in the applicant’s personal circumstance that would give him a profile such that the authorities would take an adverse interest in him upon his return. The Tribunal notes the applicant left Iran legally and therefore does not face the penalties that can be imposed on illegal departees. For the reasons given above, the Tribunal does not accept the applicant has a political profile or is wanted by the authorities, and finds there is not a real chance he’ll be imputed with one upon return to Iran in the reasonably foreseeable future. Whilst the applicant may be identified as a failed asylum seeker, having rejected his other claims the Tribunal finds there is not a real chance he will be seriously harmed on return to Iran on the basis of being only a failed asylum seeker.

33    The Tribunal accepts that the applicant is a young man who is unhappy with the level of social oppression in Iran. However, for the reasons given above, the Tribunal does not accept the applicant has a well-founded fear of persecution for any Convention reason if he returns to Iran in the reasonably foreseeable future.

(Footnote omitted)

13    At first blush, it seemed to me that the analogy drawn by the learned primary judge with CLS15, which was promoted by the respondent, was correct. However, reflecting upon the exhortation in Wu Shan Liang and reading [52] of the Authority’s reasons in context and particularly in light of [51] of those reasons, it appears to me that the Authority was well seized with and addressed a particular or integer of the respondent’s visa claim, namely, that his return, being an involuntary one, would be “facilitated by both the Australian and Iranian Governments” such that:

he is likely to come under scrutiny of Iranian officials and questioned on return by the authorities who will become aware of his past.

14    It is in that context, at [52], that the Authority finds on the basis of what it describes as “credible sources” that:

Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport … they will generally only be questioned if they had done something to attract the specific attention of authorities.

What one must not do is read [52] in isolation. Reading it in context takes this case, in my view, out of the error posited by Charlesworth J in CLS15. Here the claim as made has been addressed; it has been rejected on the basis of material which reasonably admitted of that rejection.

15    What necessarily follows is that the appeal must be allowed.

Associate:

Dated:    12 March 2019