CPQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Introduction 1 This is an appeal from a decision of the Federal Circuit Court refusing the appellants' claim for Constitutional writ relief in respect of the decision of the Immigration Assessment Authority given on 29 May 2019 to affirm the decision of the Minister's delegate not to grant the four appellants protection visas. 2 The appellants are a father and three of his adult children, a son and two daughters. The delegate and the Authority accepted their claim that they were Faili Kurds who had lived in Iran for many years prior to their departure for Australia in 2013. The delegate had found that, contrary to the appellants' claims, each of them was an Iraqi citizen who had departed Iran legally on an Iraqi passport. 3 The grounds of appeal are very narrow. The appellants essentially contended that, in arriving at its conclusions that they were Iraqi citizens, the Authority had failed to apply correctly the definition of "receiving country" in s 5(1) of the Migration Act 1958 (Cth), that provided that the country of which a non-citizen was a national had to be determined solely by reference to the law of the relevant country. That issue arose where a person claimed to have a well-founded fear of persecution as defined in s 5J; namely, a well-founded fear that he or she would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there was a real chance that, if the person were returned to the receiving country, the person would be persecuted for one or more of those reasons. 4 The grounds of appeal asserted that the trial judge had erred in failing to hold that the Authority committed jurisdictional error in finding that, based on what it had said in [47]-[49] of its reasons: (1) Iraq would be the receiving country without reference to its law at the relevant time; and (2) the three adult children became Iraqi citizens by 2003, relying on a provision of the 2005 Constitution of Iraq in circumstances where the later law could not have applied to their position in the receiving country, Iraq, at the earlier date when the Authority determined they had gained their citizenship. 5 It is fair to say that both the delegate and the Authority found the accounts of the appellants as to how they lived in and left Iran not to be credible. The appellants argued that in its evaluation, the Authority proceeded in a structured sequence that, when properly understood, would reveal why it had no evidentiary basis for being able to arrive at its finding that they lawfully departed Iran on valid Iraqi passports. 6 At no point in the administrative process did the appellants claim to fear persecution or significant harm entitling them to complementary protection obligations owed by Australia under s 36(2)(a) or (aa) of the Act, were they to be returned to Iraq. Their claims for protection were based solely on their fears of being returned to Iran, hence the focus on whether it was open to the Authority to determine that they would not be returned to the country (Iran) in which they feared persecution or significant harm, but rather to the country (Iraq) in which it had found they had citizenship. 7 The Authority structured its reasons in deciding the nationality of the appellants by considering, first, the identity of each of the appellants, secondly, their ethnicity, thirdly, whether they were stateless Faili Kurds, as they claimed, and last, of what country they were citizens.

The Authority's reasons 8 The Authority found that the adult children had given the Department a variety of inconsistent dates of birth and ages for each of them. Nonetheless, it concluded that it should accept the delegate's findings as to the dates of birth for each of the appellants. It found that the father was born in Iraq, and that each of the adult children were born in Iran. The Authority resolved the ethnicity issue, despite having some concerns, by accepting that the appellants were ethnic Faili Kurds, and were Shia Muslims, although the two adult daughters were no longer practising. 9 It then considered at length the appellants' claims that they were stateless by reference to their testimony and other information that they had provided about their background experiences, their accounts of having had amayesh cards, their efforts to obtain Iraqi citizenship, of their departure from Iran, and the circumstances of their extended family in Iraq, together with independent country information. An amayesh card was a refugee card issued by the Iranian authorities, which was also a form of identity document entitling the holder to certain rights in Iran. There was a variety of conflicting evidence about the appellants' amayesh cards, including when they were destroyed, whether they had them at the time of their departure from Iran, and whether they had ceased to renew them in 2003 or thereafter. 10 The Authority found that country information from the Department of Foreign Affairs and Trade (DFAT) confirmed that the process to obtain Iraqi citizenship required particular steps to be taken, and that persons resident in Iran, such as the adult children, who were born there to Iraqi parents, such as the father in this case, would find that process to be somewhat difficult if they tried to obtain citizenship from the Iraqi embassy in Iran. 11 However, the Authority noted that since at least 2006, the Iraqi government had actively encouraged Faili Kurds to return and reclaim their citizenship, and had established a legal framework to assist that to occur. It found that Faili Kurds could re-avail themselves of Iraqi citizenship, and that many thousands had done so. It rejected the appellants' claims of their unsuccessful experiences in doing so, having considered those in some detail. It was not satisfied that the factors that had hindered some stateless Faili Kurds re-availing themselves of their Iraqi citizenship operated to impede the appellants from achieving that status. 12 It was not satisfied that the appellants had left Iran on false documents, as they claimed, because of the efficiency of the Iranian immigration officials at the airport and the extensive databases that they used. Nor did the Authority accept that a people smuggler could have assisted them using other means to achieve illegal departure from Iran for any of the appellants. It also found that the appellants had extended family in Iraq, some of whom were Iraqi citizens, and that the wife and two younger sons of the father had obtained protection visas in Australia at an earlier stage. 13 It was satisfied that the father was an Iraqi citizen, and that the accounts of the appellants to suggest that they had been unsuccessful in attempting to reclaim their Iraqi citizenship were implausible. It also considered that the father's wife (who was the mother of the adult children) had travelled back to Iraq on two occasions since her departure in 2011, which, together with their extended family in Iraq, indicated that the appellants themselves had substantial links to Iraq. It found (describing the father as 'applicant 1'): 43. The indications are that the applicants have substantial links to Iraq. I have considered their claims to be stateless Faili Kurds in Iran, but their inconsistent accounts cast doubt on the veracity of their claims and I consider their initial claim to have been undocumented since 2003, a claim which was amended only after the delegate brought the 2011 amayesh cards to attention, substantially damages their credibility. I have considered the medical conditions and confusion of Applicant 1 but this does not alleviate my concerns about the inconsistencies and my concerns also relate to the accounts given by the adult children applicants and are not restricted to the account given by Applicant 1. 44. Furthermore I find the account of their departure using fraudulent passports to be implausible in the light of the country information before me. I find that the applicants travelled to Australia on legally issued passports. Considered in its entirety the information before me does not support the claim that the applicants are stateless Faili Kurds. I do not accept this claim. … 47. I have accepted that Applicant 1 was born in Iraq as an Iraqi citizen and is a Faili Kurd and Shia. It is plausible that he left Iraq, or was expelled, around 1979 as the country information confirms the difficult experience for Shias, Faili Kurds and other minority groups in Iraq under the Ba'ath regime. I am willing to accept that Applicant 1 was stripped of his Iraqi citizenship in or around 1979 but I am not satisfied that this remains the case. I have not accepted his account that he departed Iran in 2013 using a fraudulently issued Iranian passport and I am satisfied that he travelled using his own legally issued passport. I find that Applicant 1 is an Iraqi citizen through re-availment and that he most likely regained his citizenship in 2003, being at the time he claims to have visited Iraq. I accept as plausible that the Iranian authorities destroyed his amayesh in 2003, however I find this was the result of the applicant obtaining Iraqi citizenship. 48. I have accepted that Applicants 2, 3 and 4 were born in Iran and their literacy in the Farsi language indicates they have spent substantial years living in Iran and were educated there. However I have not accepted their claims to be stateless Faili Kurds and noting their father was born in Iraq as an Iraqi citizen and the country information that demonstrates their ability to obtain Iraqi citizenship through their father ["DFAT Thematic Report: Faili Kurds in Iraq and Iran", 3 December 2014…; "UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Iraq", 31 May 2012] and my finding that they travelled on their own legally issued passports I am satisfied that Applicants 2, 3 and 4 are Iraqi citizens. 49. Given my concerns about the applicants' overall evidence and the country information before me I am satisfied that their amayesh were destroyed in 2003 and not replaced because they had obtained Iraqi citizenship. (emphasis added) 14 The DFAT report to which the Authority referred in [48] above relevantly stated, under the heading "Rights to Citizenship": Iraq 3.10 Faili Kurds have been returning to Iraq since 2003 (some also returned to Iraqi Kurdistan since the region achieved de facto autonomy in 1991). Many have since been able to reclaim their Iraqi citizenship. Since 2006, the Iraqi Government in Iraq has actively encouraged Faili Kurds to return and reclaim their citizenship. 3.11 A legal framework is now in place in Iraq for Faili Kurds to reclaim their citizenship. Article 18 of the 2005 Iraqi Constitution provides that anyone born to an Iraqi father or Iraqi mother shall be considered an Iraqi. It further provides that anyone who has had their Iraqi citizenship withdrawn has the right to demand its reinstatement. The Iraqi Nationality Law of 2006 provides for the restoration of citizenship to Iraqis whose citizenship was revoked. … 3.20 Overall, DFAT assesses that reclaiming Iraqi citizenship is possible for the majority of Faili Kurds. In practice, those who would face difficulty reclaiming Iraqi citizenship are a limited subset of Faili Kurds. These might include children born in Iran to Faili Kurd refugee parents, whose parents are now deceased. Reclaiming citizenship presents similar difficulties for the children of Faili Kurds who went missing under the former Iraqi regime. (emphasis added)

The appellants' submissions 15 The appellants argued before the trial judge and in the appeal that the Authority's finding in [44] that they had travelled to Australia on legally-issued passports did not involve, at that stage of its structured reasoning process, any finding as to what country had issued those passports. They contended that the Authority's reasons in [49] should be ignored in reading [44], and that it was only when the Authority came to consider what the citizenship status of the appellants was that it came to grips with the question of how they may have acquired, as it found, Iraqi citizenship. They contended that the Authority found, in [47] and [49], that the Iranian authorities had destroyed the appellants' amayesh cards in 2003, and that those were not replaced. They submitted that it followed that the Authority must have found that by that time, the appellants, and particularly the adult children, had obtained Iraqi citizenship. The gravamen of the argument was that [3.11] of the DFAT report had identified the only way in which this could occur. 16 It was common ground that there was a degree of ambiguity in [49] of the Authority's reasons that supports a construction of those reasons, that it found that the appellants, and particularly the adult children appellants, had obtained Iraqi citizenship by 2003. The appellants submitted that this was a necessary finding for its conclusion, and that the Authority must have erred in making it. They contended that the Authority had failed to have regard to the fact that the only country information before it about Iraqi law, as that of the receiving country, was the DFAT report which stated that the process for a refugee to reclaim Iraqi citizenship had only been established, after 2003, in 2005 by the new Constitution. 17 The appellants complained that the Authority made no express finding as to how and in what circumstances they could have acquired Iraqi citizenship prior to 2005, despite, as they argued, that such an implication necessarily flowed from its findings in [48] and [49]. They contended that this was a material error going to jurisdiction. This was, they submitted, because the Authority must in some way have determined the issue of citizenship by reference to matters not stated in its reasons. They referred to its obligation pursuant to s 473EA(1)(b) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth) to make a written statement setting out its reasons for decision. Section 25D provided that, where an Act (such as s 473EA(1)(b)) imposes such a requirement on a decision-maker, the instrument giving the reasons must set out its findings on material questions of fact and refer to the evidence or other material on which those findings were based. 18 The appellants also argued that, in light of the Authority's findings that the adult children had been born, educated and had spent all of their substantial life in Iran before coming to Australia, departing from Tehran airport, it had failed to make any appropriate finding as to how they had been able to obtain Iraqi passports or citizenship, when it had found that they had never been in Iraq.

The trial judge's reasons 19 The trial judge rejected each of those grounds. In very brief reasons, he said that the Authority's reasons were not to be read with a keen eye for error, and that it was open for it to draw inferences from country information about events in 2003. His Honour found that there was no reason, in the circumstances, for the Authority to refer to the 2005 Constitution in arriving at its conclusions about acquisition of Iraqi citizenship in 2003, having regard to the credibility-based findings that it made as to how the appellants must have left Iran lawfully in 2011. His Honour found that the Authority's reasons had to be read as a whole as to how Faili Kurds could regain their citizenship. He was not satisfied that the Authority's reasons exposed any jurisdictional error in its reasoning or findings.

Consideration 20 As the appellants argued, the Authority was obliged to set out its reasons and its findings of fact and the evidence on which they were based. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69], McHugh, Gummow and Hayne JJ said that the reasons of an administrative decision-maker, in the position of the Authority, could reveal that there was some error of law, or a jurisdictional error in the way in which the decision-maker had proceeded to his, her, or its conclusion. They said, of the decision of the Refugee Review Tribunal, that its … identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration, or that it did not take into account some relevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). (emphasis in original) 21 While that is possible, it is also necessary to read the reasons of the decision-maker fairly as a whole. French CJ, Bell, Keane and Gordon JJ said in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 195-196 [59]-[60]: In Minister for Immigration and Ethnic Affairs v Wu Shan Liang ((1996) 185 CLR 259 at 272), Brennan CJ, Toohey, McHugh and Gummow JJ approved the statement of the Full Court of the Federal Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic Enterprises Pty Ltd ((1993) 43 FCR 280 at 287) that "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". … The Delegate's letter must be read fairly as a whole. It is apparent that the Delegate expressed his conclusion in respect of the application in the paragraph before that on which the plaintiff has fixed. … (emphasis added) 22 Here, the Authority was confronted with accounts of events that it considered to be implausible. The appellants make no challenge to its reasons for finding those accounts implausible. The Authority was then faced with a situation in which the country information on which it relied to find that implausibility also demonstrated that it was necessary, in order for them to have left Iran, that the appellants had to have had valid Iraqi passports. It found that because of the father's previous Iraqi citizenship when he had been expelled from Iraq in about 1979, fleeing to become a refugee in Iran, that he was a person who could reclaim and, in or by 2003, had reclaimed his Iraqi citizenship. 23 Once again, the appellants did not attack the findings of the Authority in coming to that conclusion. Their real attack was based on its findings about the adult children, by focusing on the Authority's wording of [49]. 24 The Authority found that the essential reason why the appellants were able to depart Iran lawfully was that they must have had valid Iraqi passports. It is impossible to read [44] of its reasons in any other way than that the legally-issued passports were Iraqi ones. The Authority was entitled to arrive at that position, having considered the country information, because its evaluation of that information was a matter within its jurisdiction. As Gray, Tamberlin and Lander JJ said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]: … It is clear from its reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal. (emphasis added) 25 Here, the critical question for the Authority was to determine the country of which the appellants were citizens, in circumstances in which it did not believe their accounts of what had happened to them or their assertions that they had not been able to obtain, or regain their entitlement to, Iraqi citizenship. There was material before the Authority by which it was clear, at least from 2005, that the Constitution of Iraq allowed them to reclaim their Iraqi citizenship. 26 The Minister accepted that the evidence was silent about whether the law of Iraq had previously so provided. However, the country information in [3.10] of the DFAT report did not preclude the possibility that from 1991 displaced Faili Kurds, including children born in Iran to refugee Iraqis living there, were able to reclaim their Iraqi citizenship. There was evidence before the Authority that this could have been done at any time, including in 2003 and certainly in 2005. The fact that the position had been clarified and formalised in the later 2005 Constitution did not deprive the Authority of the capacity to interpret or rely on country information to come to its conclusion. That is so even if what it did in [49] was to find that the adult children had obtained Iraqi citizenship at, or very soon after, the destruction of their amayesh cards. However, given their accounts to the Authority that they were able to live without amayesh cards in Iran for some period after 2003, there was also material before it which did not require it to make a precise finding of the time at or by which they obtained their Iraqi citizenship. 27 Relevantly, the issue for the Authority was whether they were citizens of Iraq, and could be returned there in circumstances where, if they were, they had no fear that they would suffer significant or serious harm so as to engage Australia's protection obligations. 28 Accordingly, the appellants' argument that the Authority made a jurisdictional error by failing to have regard solely to the law of the receiving country, being Iraq, has no substance and must be rejected. 29 Likewise, the reasons of the Authority did not rely, as the appellants argued, only on what the DFAT report said about the 2005 Constitution. It relied generally on the DFAT report. That stated in [3.10] that Faili Kurds had been returning to Iraq since 2003 and some had also returned to Iraqi Kurdistan since the region had achieved de facto autonomy in 1991, and that many had since been able to reclaim their Iraqi citizenship. In those circumstances, where the report did not ascribe a particular year to when this process first operated, it was open to the Authority to make its own evaluation of the country material in arriving at its findings that, however they gained their Iraqi citizenship, by the time they left Iran the appellants did so on valid Iraqi passports: see NAHI [2004] FCAFC 10 at [13].

Conclusion 30 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Thomas and Banks-Smith.

SCHEDULE OF PARTIES NSD 406 of 2020 Appellants Fourth Appellant: CPX19