FEDERAL COURT OF AUSTRALIA

AHG18 v Minister for Home Affairs [2019] FCA 410

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely upon the amended ground of appeal in the draft amended notice of appeal.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant brings this appeal against a decision of the Federal Circuit Court of Australia given on 20 June 2018 by which the Court dismissed the appellant's application for judicial review of a decision of the Immigration Assessment Authority (Authority) dated 30 November 2017. The Authority had affirmed a decision of a delegate of the Minister to refuse the appellant’s application for a protection visa as he failed to meet the requirements in s 36(2) of the Migration Act 1958 (Cth).

Background

2    The appellant arrived in Australia in October 2012, and claimed to be a stateless Bidoon who was born in Kuwait. The Authority identified that in support of his application for a protection visa the appellant claimed that his parents were born in Kuwait and were stateless, and that his father had served in the Kuwaiti army and had been imprisoned in Iraq during the Iraqi invasion of Kuwait. The appellant claimed that he and his family left Kuwait in 1993 and moved to Iraq but that he and his family did not obtain citizenship in Iraq.

3    The Minister’s delegate made some adverse credit findings in relation to the appellant. The delegate did not accept that the appellant was stateless, but found that the appellant and his family had obtained Iraqi citizenship following the Gulf War through an assistance package called ‘makremiayah’, as explained by a country information report, CISEC96CF1160: “Country Information Report – Iraq”, Department of Foreign Affairs and Trade (DFAT), 13 February 2015.

4    On review, the Authority accepted that the appellant and his parents were Shia Muslims who were born in Kuwait, and that his family had been stateless Bidoons in that country. The Authority accepted that the appellant’s father had been in the Kuwaiti army and was imprisoned in Iraq between 1990 and 1991; that his uncle had been in the Iraqi army; and that the appellant and his family fled to Iraq in 1993.

5    In relation to the appellant’s status in Iraq, the Authority did not accept that the appellant was a stateless Bidoon or nomad living in the desert, as claimed. The Authority took account of an active Facebook page which the appellant had under a different surname. The Facebook page contained photographs of the appellant’s father on a pilgrimage to Mecca. The significance of these photographs was that the Authority took account of information that an individual required a travel document to exit Iraq, such as a passport, which would be unavailable to a stateless Bidoon. One photograph of the appellant’s father depicted him as part of an organised tour group who were wearing tote bags with an image of the Iraqi flag. The Authority rejected a submission that the trip was arranged by a smuggler who obtained a false passport for the appellant’s father, and found that the evidence suggested that the appellant’s father had travelled from Iraq, and having regard to independent information, that he had Iraqi identity documents in order to leave Iraq.

6    The Authority also had regard to the fact that the appellant was a “friend” of a number of people on his Facebook page who lived in Iraq and who appeared to have connections to the Iraqi police and military. The appellant gave explanations for this which the Authority rejected as implausible. The Authority also considered that the fact that the appellant had an active Facebook page, together with his Facebook activity, undermined his evidence that he was an illiterate stateless Bidoon with no education. The Authority also considered that the fact that the appellant was able to make his way to Australia by air was inconsistent with his claims that he grew up in a remote location in the desert, had only been to the city once or twice in his life, and was illiterate. The Authority also referred to discrepancies in the appellant’s accounts concerning his travel to Australia, which led the Authority to doubt the appellant’s evidence more broadly, including his account of his past in Iraq.

7    The Authority did not accept the appellant’s claims to be stateless, and stated its conclusions at [26] as follows –

26.    I have taken into account all of the evidence and submissions before me on this matter. Overall, the concerns raised above are not overcome by the applicant’s oral evidence at the DIBP interview. Rather when taken cumulatively, the concerns I have identified above strongly suggest that the applicant is not stateless as claimed. Rather, I consider it is highly likely that the applicant and his family were among the approximately 47,000-50,000 Kuwaiti Bidoon who were granted Iraqi citizenship prior to 2003 as part of the assistance package called ‘makremiayah’ set up by the Iraqi government.

8    The Authority referred in a footnote to this paragraph to the Country Information Reports on Iraq, of DFAT, dated 13 February 2015 and 26 June 2017.

The appeal to this Court

9    The appellant was unrepresented before the Federal Circuit Court. Before this Court the appellant sought to raise new arguments by way of an amended notice of appeal.

10    The appellant relied on only the first amended ground of appeal, as follows –

Ground 1

The Second Respondent (Authority) engaged in jurisdictional error in its determination that the Appellant is a citizen of Iraq. Leave should be granted to raise this ground not raised below.

Particulars

a.    The Authority accepted that:

i.    the Appellant and his family were born in Kuwait; and

ii.    the Appellant and his family were stateless Bidoon in Kuwait; Decision at AB 168 [11].

b.    The Authority found that it was "highly likely" that the Appellant and his family were ''among the approximately 47,000-50,000 Kuwaiti Bidoon who were granted Iraqi citizenship prior to 2003 as part of the assistance package called 'makremiayah' set up by the Iraqi government" (Makremiayah Conclusion): Decision at AB 171 [26].

c.    The Makremiayah Conclusion formed part of the basis for:

i.    the Authority's lack of satisfaction that the Appellant was a stateless Bidoon;

ii.    the Authority’s conclusion that the Appellant did not meet s 36(2)(a) of the Migration Act;

iii.    the Authority's conclusion that the Appellant did not meet s 36(2)(aa) of the Migration Act.

d.    In support of the Makremiayah Conclusion, the Authority cited:

i.    DFAT, "Country Information Report - Iraq", 13 February 2015, CISEC96CF1160 (2015 DFAT Report);

ii.     DFAT, "Country Report on Iraq", 26 June 2017, CISDB50AD4631 (2017 DFAT Report): Decision at AB 171 [26]n7 [sic].

e.    The 2015 DFAT Report (at p 18 [3.84]) and the 2017 DFAT Report (at p 19 [3.58]) state that to obtain citizenship of Iraq, Bidoon had to declare that Kuwait was not their place of birth (the Declaration Requirement).

f.    In concluding that the Appellant had gained Iraqi citizenship despite having been born in Kuwait, the Authority did not advert to, and made no findings in respect of, the Declaration Requirement.

g.    Had the Authority considered the Declaration Requirement in reaching the Makremiayah Conclusion, it would have made findings as to, or set out its reasons in respect of, the Declaration Requirement.

h.    In the premises:

i.     In reaching the Makremiayah Conclusion without considering the Declaration Requirement, the Authority failed to have regard to, or alternatively failed to give proper, genuine and realistic consideration to, relevant material.

ii.    Further or in the alternative, in reaching the Makremiayah Conclusion (and the conclusions based upon the Makremiayah Conclusion) without considering the Declaration Requirement, the Authority did not form the requisite state of satisfaction required by ss 36(2)(a) and 36(2)(aa) of the Migration Act: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [34].

iii.    Further or in the alternative, in reaching the Makremiayah Conclusion without regard to, or despite, the Declaration Requirement, the Authority's fact-finding was unreasonable, irrational, illogical or otherwise beyond power.

iv.    Further or in the alternative, in reaching the Makremiayah Conclusion without setting out its reasons for reaching that conclusion despite the Declaration Requirement, the Authority failed to satisfy its statutory obligation to set out the reasons for the Decision: Migration Act 1958 (Cth) s 473EA(1)(b).

i.    In the premises, the Decision was affected by jurisdictional error.

j.    Leave should be granted to rely on this Ground because:

i.    This ground has significant merit;

ii.    There would be no real prejudice to the Respondents in permitting this ground to be agitated;

iii.    This ground was not raised below because the Appellant was not represented in proceedings before Judge Driver;

iv.    The Appellant would suffer significant prejudice (in respect of prospective refoulement) if not permitted to raise reasonably arguable grounds on appeal, despite the fact that they were not raised below;

v.    Failure to engage with Iraqi citizenship law was identified at first instance as a deficient aspect of the Authority's decision: AHG18 v MHA [2018] FCCA 1630 at [18]-[20].

11    Particular (h)(iv) was not pressed.

The appellant’s submissions

12    The particulars of the amended ground of appeal raised different manifestations of alleged jurisdictional error, the focus of which was one feature of the Authority’s reasons, and the material before the Authority. Counsel for the appellant submitted that the Authority committed jurisdictional error in determining that the appellant was a citizen of Iraq. Counsel for the appellant relied on the terms of the country information in the two DFAT reports which the Authority cited in the footnote to [26] of its reasons. The two DFAT reports were received into evidence on the appeal without objection. To put the appellant’s submissions in context, I shall set out the material passages from the 2015 report –

3.82    The Bidoon are a group of often stateless persons in the Gulf region, primarily Kuwait. There is little verifiable information available on the status of the Bidoon in Iraq. During the first Gulf War, a number of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait without appropriate documentation. Kuwait considered those who fled to Iraq as supporters of the Iraqi regime and affiliated with the Iraqi army, and therefore not loyal to Kuwait.

8.83    The number of Bidoon who entered Iraq at this time is unclear, with estimates ranging from 100,000 to 500,000. DFAT considers credible UN assessments that the number of Bidoon remaining in Iraq is now around 100,000. The majority of Bidoons are Sunnis, with a small minority being Shia. More than 80 per cent are reported to live in the southern part of Iraq, though some also went to the northern provinces.

3.84    Approximately 50,000 Bidoon were granted Iraqi nationality by the Ba’ath regime through an assistance package called `makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (that is, they had to renounce association with Kuwait) and often needed sponsorship by a local tribe (especially around the city of Samawa where the Bdour and Ghizi tribes wielded influence). The remaining Bidoon remain stateless in Iraq because they were unwilling to renounce their association to Kuwait, did not secure the sponsorship of an Iraqi tribe, were unaware of the naturalisation procedures, or entered Iraq from a third country after makremiayah.

3.85    In Iraq, a stateless person has to prove that he or she was registered during the 1957 Iraqi national census in order to gain citizenship. However, Iraqi authorities reportedly maintain a certain degree of flexibility regarding Bidoons. Bidoons can access Iraqi nationality through their affiliation to some tribes, provided they do not declare “Kuwait” as a place of birth.

13    I also set out a shorter extract from the 2017 DFAT report –

3.58    Approximately 47,000 Bidoon were granted Iraqi nationality by the Ba’ath Party regime through an assistance package called `makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (that is, they had to renounce association with Kuwait) and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through `makremiayah’. Bidoon who were unable or unwilling go through `makremiayah’ remain stateless. In country contacts report that approximately 54,000 Bidoon remain stateless. A stateless person has to prove that he or she was registered during the 1957 Census in order to gain citizenship. Local authorities reportedly maintain a certain degree of flexibility for Bidoons with regards to this requirement. Bidoons can access Iraqi nationality through their affiliation with some tribal groups, provided they do not declare `Kuwait’ as their place of birth. Bidoon may face difficulty in obtaining Iraqi nationality documentation due to a combination of not being registered or not being able to meet the supporting documentation requirements. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit. Births and deaths of stateless Bidoons are not normally registered by Iraqi officials.

14    Counsel for the appellant submitted that the two DFAT reports both indicated that, in order to have been granted Iraqi citizenship as part of the ‘makremiayah’, the appellant was required to declare that Kuwait was not his place of birth in circumstances where the Authority had accepted the appellant’s evidence that Kuwait was his place of birth. Counsel for the appellant submitted that the Authority did not make any findings as to whether the appellant would have been able to satisfy the requirement that he declare that Kuwait was not his place of birth, to which counsel referred as the “declaration requirement”. Counsel submitted that the Authority’s failure to refer to the declaration requirement supported an inference that the Authority had overlooked or otherwise failed to deal with this requirement, with the consequence that the claims of jurisdictional error that were alleged in the amended notice of appeal should be upheld.

15    Counsel for the appellant advanced three arguments in support of the claim of jurisdictional error by the Authority, in respect of which counsel acknowledged that there was substantial overlap. First, counsel submitted that the declaration requirement was a material feature of the information before the Authority to which it was required to have regard. Counsel relied on the reasons for judgment of Robertson J in Minister for Immigration and Citizenship v SZRK (2013) 212 FCR 99 at [72] to support a submission that the relevance of the declaration requirement in this case was so high that the obvious inference from the absence of reference to it in the reasons of the Authority was that the Authority did not take it into account. Counsel accepted that the Authority need not refer to every piece of evidence in its reasons (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]), but submitted that this was a case where the relevance of the declaration requirement was so high that the absence of reference to the requirement in the reasons of the Authority supported the conclusion that it was not taken into account.

16    Second, counsel submitted that the failure to consider the declaration requirement was fundamentally a failure to form the state of satisfaction – one way or the other - required for the purposes of the Authority’s review in respect of the criterion in s 36(2)(a). Put slightly differently, the failure to consider the declaration requirement was a failure to undertake the review that was invited by the nature of the claim advanced, and the material before the Authority concerning the claim. Counsel relied on the decisions in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [45]-[46], and BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 at [58], [62]-[64]. Counsel submitted that in order to conduct the review in accordance with the statute, the Authority had to resolve the contradiction between the declaration requirement, and the Authority’s acceptance that the appellant was born in Kuwait. Counsel submitted that the Authority’s reasons failed to disclose a process of reasoning by which the declaration requirement was substantively addressed.

17    Third, and alternatively, counsel for the appellant submitted that the Authority’s decision was legally unreasonable because no rational or logical decision-maker would have reached the conclusion that the appellant had become a citizen of Iraq as part of the ‘makremiayah’ process without evidence to suggest that the declaration requirement did not exclude the appellant from becoming a citizen of Iraq. Consideration of any such evidence should have been disclosed by the Authority’s reasons, and there was no consideration of the declaration requirement disclosed by the Authority’s reasons. During the course of argument counsel for the appellant clarified that if the Court were to infer that the declaration requirement had been taken into account, then the appellant did not submit that the result was legally unreasonable.

Consideration

Leave to raise new arguments on appeal

18    Leave is required to raise a new argument on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. In view of the fact that the Minister did not oppose leave, the fact that the appellant was unrepresented before the Federal Circuit Court, that the arguments advanced in support of the proposed ground appeared to have some merit, and because of the potential substantial injustice to the appellant should leave not be given, I gave leave to the appellant at the hearing of the appeal to raise the new arguments captured by the amended ground of appeal.

The ground of appeal

19    I am not persuaded that the Authority erred by overlooking or failing to give proper consideration to the information in the Country reports concerning the ‘makremiayah’ process.

20    The requirement referred to in the DFAT reports that Bidoons had to declare that Kuwait was not their place of birth, was explained in paragraph [3.84] of the 2015 DFAT report as a requirement that they had to renounce association with Kuwait, and at paragraph [3.85] of the 2015 DFAT report and paragraph [3.58] of the 2017 DFAT report as a requirement that they do not declare “Kuwait” as a place of birth. I do not consider that these requirements are to be equated with birth in Kuwait as disqualifying Bidoons born in Kuwait from becoming Iraqi citizens. Rather, I consider that fairly understood, the DFAT reports refer to a process that existed prior to 2003 whereby Bidoons, including those born in Kuwait, could become Iraqi citizens if they renounced, or at least did not declare Kuwait as their place of birth. For these reasons, I do not accept the appellant’s submission that there was an inconsistency between the Authority’s acceptance that Kuwait was the appellant’s place of birth, and the requirements to attain Iraqi citizenship under the ‘makremiayah’ process that were described in the DFAT reports. It follows that I do not accept that any reconciliation of these features of the material before the Authority was required.

21    The Authority inferred that the appellant and his family had become Iraqi citizens by reference to the combination of a number of circumstantial facts, the principal ones being those referred to in paragraphs [5]-[6] above. The Authority’s conclusion that it was highly likely that the appellant and his family were granted Iraqi citizenship prior to 2003 as part of the ‘makremiayah’ process carried with it a subsidiary finding that the appellant and his family had taken the steps that were required to avail themselves of this process. Those steps were not so significant that the Authority was required to give them detailed consideration beyond inferring that the steps were necessarily taken, which was implicit in the primary inference that the Authority drew. In the circumstances, it was not necessary for the Authority to make separate findings about such detail: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47].

22    For these reasons, the foundations for each of the three ways in which counsel for the appellant advanced the ground of appeal are not established, and the ground of appeal is therefore not made out. The appeal will be dismissed with costs.

Associate:

Dated:    26 March 2019