EYJ17 v Minister for Immigration and Border Protection

1. The appeal be allowed.
2. The orders made by the Federal Circuit Court on 24 September 2018 be set aside.
3. In lieu thereof, it is ordered that: (a) a writ of certiorari be issued, quashing the second respondent's decision dated 12 October 2017. (b) the first respondent pay the appellant's (applicant below) costs, of and incidental to the application, fixed in the sum of $7,328.00.
4. The matter be remitted to the second respondent for hearing according to law.
5. The first respondent pay the costs of the appellant, of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 This is yet another case which has its origins in an era, earlier this decade, when many thousands of persons came to Australia by sea and thereafter came to lodge claims under the Migration Act 1958 (Cth) (Act) for Protection Visas or, sometimes, a kindred such visa known as a Safe Haven Enterprise Visa (visa). So, in that sense, the case is an exemplar of the impact, consequentially, on public administration and later in the exercise of Commonwealth judicial power, including by this Court, of that particular era. 2 The appellant came to Australia by sea without a visa authorising his entry in 2012. So too, as it happens, did a cousin who, long beforehand, had become his adopted brother. It is convenient to refer to the latter person as his brother. A particular reason for that reference to his brother will become apparent later in these reasons for judgment. 3 It is common ground between the parties that the background to the case, both in terms of the appellant's personal circumstances and his visa claims, as well as the fate in public administration and in the exercise on occasion of judicial power of those claims, has been faithfully summarised by the appellant's counsel in his written submissions. I therefore adopt that particular summary, which is as follows: 3. The appellant is a male, born in Baghdad, Iraq on 6 September 1979. 4. Prior to his first birthday, the appellant was taken by his parents to the Islamic Republic of Iran where he remained, with the exception of two episodes discussed below, until leaving Iran for the last time in 2012. 5. The appellant arrived in Australia on or about 13 April 2012 as an irregular maritime arrival; was interviewed by the department on 4 and 15 May 2012; and applied for a protection visa on 22 July 2012. 6. The appellant claimed that his family entered Iran illegally in 1980 and that he only returned to his country of birth on two occasions. The first occasion was in 1991 when, following the death of his father in a work-related accident, his mother brought the appellant and his brother back to Iraq, only to returned two weeks later after the Iraqi Intifada had started. On return to Iran, he was initially placed in a refugee camp before he was given a green card (residence permit). The second occasion on which the appellant claimed to have returned to Iraq was in 2005 when the Iranian authorities deported him and his brother and they returned to his grandparent's village in Samarra. The appellant was able to return to Iran when, with the help of his cousin, [name omitted], he presented a fake Iraqi passport to the Iranian Embassy in Baghdad and obtained a pilgrimage visa. He claimed, in broad terms, to fear harm by reason of his Feyli Kurd ethnicity, undocumented status and illegal entry into Iran. 7. From his childhood in Iran to the present day in Australia, the appellant has been accompanied by, and his claims have involved, his brother. The appellant arrived in Australia on the same boat and applied for a protection visa, applied to the Tribunal for review, and applied to this Court for judicial review at the same times as the brother. 8. By letter dated 23 November 2012, the delegate refused the appellant's application for a protection visa. The delegate found that the appellant was not a Feyli Kurd, pointing to the fact that the interview had been conducted in Farsi (as opposed to Kurdish Feyli) and what the delegate found to be a lack of knowledge about Feyli Kurds, amongst other things. The delegate concluded that the appellant is an Iranian citizen, and not a stateless Feyli Kurd and therefore that he had no grounds for facing persecution in Iran. 9. The same delegate also refused the brother's protection visa application. Tribunal proceedings 10. On or about 27 November 2012, the appellant and his brother applied separately to the Tribunal for review of the delegate's decisions. 11. Initially, both the appellant and his brother's reviews were constituted to the same Tribunal Member, Francis Simmons. 12. On 5 February 2013, the Tribunal conducted a hearing in relation to the appellant's case, however the appellant had requested that the Tribunal take evidence from his brother, and the Tribunal adjourned the hearing to 20 February 2013 so that the appellant and his brother could give evidence in respect of each others' reviews. 13. On 20 February 2013, the Tribunal conducted hearings in relation to the appellant and his brother. In the morning, the Tribunal ostensibly conducted a hearing in relation to the appellant's review and, in the afternoon, conducted a hearing ostensibly in relation to the brother's review. The Tribunal said that it recognised that the appellant wanted it to consider the evidence in his brother's case and indicated that it would consider all of the evidence in the two cases together. 14. Almost two years later, on 6 February 2015, the Tribunal wrote to the appellant's migration agent, notifying him that Member Simmons had become unavailable and that another Tribunal Member, Giles Short, would "finish the review". The same member was also to finish the brother's review. 15. The reconstituted Tribunal conducted further hearings in relation to each of the appellant and his brother's reviews on 6 March 2015. On that day, the Tribunal conducted a hearing in relation to the brother's review in the morning and a hearing in relation to the appellant's review in the afternoon. 16. On 27 October 2015, the Tribunal affirmed the delegate's decision to refuse the appellant a protection visa. The Tribunal's decision was based upon differences between the appellant's evidence and that which his brother had given, including that given at the hearing on 20 February 2013. The Tribunal also expressed reservations with respect to the cards said to have been issued by the Failyeen Kurd Society in Baghdad and the other supporting documentation and also with the plausibility of the appellant's claimed exit from Iran via Imam Khomeini airport. The Tribunal concluded that the appellant was not a stateless Feyli Kurd but an Iranian citizen and that he was not owed protection under the Convention or the complementary protection provisions of the Act. 17. The appellant applied to this Court for judicial review of the Tribunal's decision and on 1 November 2016 orders were made by consent setting aside the decision of the Tribunal and remitting the application for review for further consideration according to law. The Tribunal was found not to have complied with section 424A of the Act in respect of the brother's evidence. 18. Meanwhile, the same Tribunal had affirmed the decision of the delegate to refuse the brother a protection visa, the brother had applied for judicial review of the Tribunal's decision and orders were made setting aside the brother's decision and remitting the brother's application for review for further consideration according to law. 19. The appellant and his brother returned to the Tribunal and it was again requested that the Tribunal take evidence from his brother in relation to the appellant's review. 20. On 28 August 2017, a differently constituted Tribunal conducted further hearings in relation to each of the appellant and his brother's reviews. At the conclusion of the hearing, reference was made to the brothers· evidence being mutually corroborative and the fact that the earlier Tribunal had said the evidence given by each would be evidence in the other's review; and the Tribunal said that it would "take that ... on board". 21. On 12 October 2017, the Tribunal again affirmed the delegate's decision. 22. The Tribunal found that the appellant was not in fact stateless but, rather, an Iranian citizen. The Tribunal said that it was "reasonable to believe that an adult could have made some inquiries ... in order to solve his problem of statelessness" yet the appellant, the Tribunal said, had a "complete ignorance of the Iraqi citizenship laws" and had not made "any attempt to find out about them". The Tribunal also noted the appellant's apparent lack of understanding as to what identity cards had been issued and inability to provide the Tribunal with documentary evidence of his sister's Iranian citizenship. 23. The Tribunal also found that the appellant was not Kurdish. It gave "little weight" to the card issued by the Feyli Kurd Association or the appellant's white card and relied upon the fact that the appellant "has proven not to be a witness of truth, speaks no Kurdish, [and] has no links to any Kurdish organisation in Iran or Australia", amongst other things. 24. The Tribunal held that, given its finding that the appellant is an Iranian citizen and is not a Kurd, it did not accept his claim to have returned in Iran in 1991 after the death of his father, that he was detained in an refugee camp upon return, or that the appellant and his brother had been stopped without valid documentation and expelled from Iran in 2005. 25. The Tribunal also concluded that the appellant did not have a well-founded fear of persecution as a failed asylum seeker. 26. The Tribunal concluded that it was not satisfied the appellant met the refugee or complementary protection criteria. Federal Circuit Court of Australia proceeding 27. The appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision and, at final hearing on 24 September 2018, was granted leave to rely upon an Amended Application. The Amended Application contained five grounds of judicial review, of which only two (Grounds 3 and 4 of the Amended Application) are the subject of the present appeal. 28. His Honour dismissed the Amended Application with costs and gave ex tempore reasons for judgment. [sic, footnotes omitted] 4 There are two grounds of appeal, namely: 1. His Honour erred in finding that the second respondent had considered the evidence given by the appellant's brother and ought to have found that it committed jurisdictional error to consider that evidence. 2. Further or in the alternative, his Honour erred in not finding that, in considering whether the appellant may be harmed as a "failed asylum seeker", the second respondent asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.