FEDERAL CIRCUIT COURT OF AUSTRALIA
AHY15 v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1324	

Catchwords: 
MIGRATION – International Treaties Obligations Assessment – Protection (class XA) visa – whether the ITOA was a decision under the Migration Act 1958 – no jurisdictional error – application dismissed.	

Legislation:  
Migration Act 1958, ss.36(2)(a), 197C, 476	

SZTZI v Secretary of the Department of Immigration & Anor [2015] FCCA 1271	

Applicant:	AHY15	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	GILLIAN SULLIVAN, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION	

File Number:	SYG 862 of 2015	

Judgment of:	Judge Street 	

Hearing date:	15 May 2015	

Date of Last Submission:	15 May 2015	

Delivered at:	Sydney	

Delivered on:	15 May 2015	

REPRESENTATION
Counsel for the Applicant:	Mr P. Bodisco	

Solicitors for the Respondent:	Mr A. Markus
Australian Government Solicitor	

ORDERS
(1)	The application be dismissed. 
(2)	The applicant pay the first respondent’s costs fixed in the sum of $5500. 

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT sydney	
SYG 862 of 2015
ahy15	
Applicant

And

minister for immigration & border protection 	
First Respondent

GILLIAN SULLIVAN, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application purportedly within the Court’s jurisdiction under s.476 of the Migration Act 1958 seeking declaratory and injunctive relief in respect of what is said to be a future decision or other action by the Minister or an officer under the Migration Act concerning an offshore entry person following the making of an ITOA in respect of a recommendation made 27 February 2015.  The declaratory relief asserts that the assessment was not made in accordance with law and the Court’s injunctive jurisdiction is sought to be invoked in respect of that assessment.
2.	The assessment is not a migration decision and does not fall within the jurisdiction inferred under s.476.  Whilst I accept that this Court does have injunctive jurisdiction, I regard the prayer for injunctive relief as merely a colourable invocation given that the challenge to the assessment is, in my opinion, hopeless.  In this regard I follow what was said in this Court in SZTZI v Secretary of the Department of Immigration & Anor [2015] FCCA 1271:
	Picking up what was said by the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at [580]-[581], it is clear that the ITOA report is not a decision under the Migration Act and is not a report that has any legal affect under the Migration Act, and it is not a report that of itself can found jurisdiction under s.476. Mr Nikjoo sought to argue that the report operated as a precondition to a step in a process capable of altering the rights of the applicant and, therefore, was something in respect of which declaratory relief might be granted.  
	The problem confronting Mr Nikjoo in that regard is s.197C of the Migration Act, which commenced operation on 16 December 2014.  That provision provides:
	Section 197C – Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
	(1)  For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
	 (2)  An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen
	It is clear from the language of s.197C(2) that the ITOA decision is not a matter that can be raised to prevent removal of an unlawful non-citizen under s.198.  I accept the first respondent’s submission, consistent with the explanatory memorandum, was to make clear Parliament’s intention that it is not the law that a person cannot be removed from Australia under s.198 until his or her claims for protection under Australia’s international law obligations have been assessed according to law.
	Relevantly, the explanatory memorandum recognises:
	The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the government.   
	I accept that this Court has power to grant an injunction to prevent a removal under s.16 but not in a case such as the present where the originating application of relief has been abandoned and where what is sought is a declaration in respect of a process that is precluded under s.197C from impeding an officer’s duty to remove, as soon as reasonably practicable, an unlawful non-citizen under s.198, and I take into account, in that regard, that under s.198(1) for the purpose of s.198 it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.  
	The ordinary meaning and effect of s.197C is that the ITOA process, the subject of the identified alleged decision in this case, is irrelevant to the duty imposed under s.198.  It is in these circumstances that it is clear that there is no decision within s.476 of the Migration Act invoking this Court’s jurisdiction.  I accept the respondent’s submission that, in light of s.197C, any attempt to obtain injunctive relief against removal can properly be regarded as not a bona fide invocation of this Court’s jurisdiction, as the application is hopeless.  
	Being merely a colourable invocation of alleged injunctive jurisdiction, I am satisfied this case falls within the principle identified by Gibbs J in R v Cook;  ex parte Twigg (1980) 147 CLR 126 and that this Court has no jurisdiction in respect of the amended application.  
3.	In those circumstances the matter is one in respect of which the Court does not have jurisdiction.  The grounds of the application are:
	1. The Assessor erred by not considering all integers of the applicant's claims.
Particulars
	a. The Applicant claimed that he was not an Iranian citizen and he has no Iranian identity documents and had not right to return to Iran
	2. The Assessor erred by considering the wrong issue.
Particulars
	a. The Assessor found that the Iranian authorities did not record the passport the applicant used as fraudulent. As a result the Assessor satisfied this reduced the risk to the applicant of being questioned or arrested on return to Iran.
	3. The Assessor erred in misapplied country information and made mistaken conclusions.
Particulars
	a. Article 34 of the Penal Code applies to Iran citizens and not stateless Faili Kurds with no identification documentation;
	b. In its 2013 country report, DFAT stated that it is not aware of any legislative or social barriers to voluntary or involuntary returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran. This country information supports his claim that he has no Iranian identification documentation to enter Iran;
	c. DFAT assesses that residual official discrimination against stateless Faili Kurds in Iraq (an assumption is made that the Assessor means "Iran") is generally based on ethnicity, but on the absence of documentation resulting from their statelessness. This country information supports his claims that he will face harm upon return to Iran.
4.	In relation to ground 1 it is not correct that there is a failure to take into account an essential integer in the assessment undertaken.  Relevantly, the assessor accepted the applicant was a stateless Faili Kurd and that his country of former habitual residence was Iran, at Court Book pgs.185, 195 and 202.
5.	The assessor accepted that the applicant had not obtained citizenship of Iraq or any other country, at Court Book pgs.194 to 195, and accepted the applicant’s claim that he would not be eligible for Iraqi citizenship, at Court Book pg.197.  It was in light of those findings and consistent with s.36(2)(a) of the Act and art.1A of the Refugee Convention, the assessor assessed the applicant against his country of former habitual residence, being Iraq, at Court Book pg.195.
6.	Relevantly, the assessor found that there is no current information to suggest that the applicant would be definitely targeted in Iran by authorities for persecution by virtue of being a stateless Faili Kurd and found that the consequences of the applicant having illegally left Iran under a false passport were due to the enforcement of a law of general application, not for any convention reason, at Court Book pg.204. The assessor concluded as a finding of fact that the applicant did not face a real chance of persecution in Iran in the reasonably foreseeable future by reason of his ethnicity, his imputed political opinion or his membership of a particular social group of stateless Faili Kurds, at Court Book pg.205.  I accept the material before the assessor that that finding was reasonably open.
7.	There are two cumulative requirements under art.1A(2) and in the circumstances where the first condition is not satisfied, there is no need for the assessor to address the second issue, nor is there any error in the assessor’s approach to the complementary protection.  Ground 2 also fails to identify any error of law.  It was a matter for the assessor to determine the steps that would be taken as a result of the fraudulent passport and illegal departure. The adverse finding, in that regard, was open on the material before the assessor.
8.	In relation to ground 3, this is again an impermissible challenge in relation to the adverse findings of fact. There is no substance that there is any error of law in failing to have regard to the country information or that there was any material error by the assessor.  The finding of the assessor, at Court Book pgs.206 and 207 was clearly open and, accordingly, there is no substance in the proposition of an error of law by the assessor in the assessment.  The application is dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street 

Associate:  

Date:  21 May 2015