FEDERAL COURT OF AUSTRALIA

Atkins v Minister for Home Affairs [2019] FCAFC 159

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal decided to affirm a decision of a delegate of the first respondent (the “Minister”) to cancel the appellant’s protection (subclass 866) visa pursuant to s 109(1) of the Migration Act 1958 (Cth) (the “Migration Act”). The appellant is from Iran. He arrived in Australia in 2010 and was issued a protection visa in 2011. This was subsequently cancelled because it was said that when the appellant made his visa application he provided false information to the Department of Home Affairs (as it is now called) (the “Department”).

Legislative Provisions

2    The legislative provisions which are the subject of this appeal are set out below.

3    Section 101 of the Migration Act provides that a non-citizen must complete a visa application in such a way that no incorrect answers are given or provided.

4    Section 107 of the Migration Act sets out what is to occur if s 101 is not complied with. It is relevantly in the following terms:

Notice of incorrect applications

(1)    If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)    giving particulars of the possible non-compliance; and

(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)    if the holder disputes that there was non-compliance:

(A)    shows that there was compliance; and

(B)    in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph  (A), there was non-compliance—shows cause why the visa should not be cancelled; or

(ii)    if the holder accepts that there was non-compliance:

(A)    give reasons for the non-compliance; and

(B)    shows cause why the visa should not be cancelled; and

  (c)    stating that the Minister will consider cancelling the visa:

(i)    if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)    if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)    otherwise—at the end of that period; …

5    Section 108 of the Migration Act confers on the Minister a power to relevantly decide whether there has been non-compliance with s 101. It provides:

Decision about non‑compliance

The Minister is to:

(a)    consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)    decide whether there was non-compliance by the visa holder in the way described in the notice.

6    Section 109(1) of the Migration Act confers on the Minister a power to cancel a visa for non-compliance. It provides:

Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)    considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

   (c)    having regard to any prescribed circumstances;

may cancel the visa.

7    Section 189(1) of the Migration Act provides:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

8    Section 198(5) of the Migration Act provides:

An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

  (a)    is a detainee; and

(b)    neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non-citizen has made a valid application for a bridging visa.

9    Section 198AD of the Migration Act relevantly provides:

Taking unauthorised maritime arrivals to a regional processing country

(1)    Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.

Note:    For when this section applies to a transitory person, see section 198AH.

(2)    An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.

(2A)    However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.

Note 1:    Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.

Note 2:    This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.

…

10    Section 5AA(1) of the Migration Act relevantly defines an “unauthorised maritime arrival” as follows:

For the purposes of this Act, a person is an unauthorised maritime arrival if:

(a)    the person entered Australia by sea:

(i)    at an excised offshore place at any time after the excision time for that place; or

(ii)    at any other place at any time on or after the commencement of this section; and

(b)    the person became an unlawful non-citizen because of that entry; and

(c)    the person is not an excluded maritime arrival.

11    Relevant to the assessment under s 36(2)(aa) of the Migration Act, “degrading treatment or punishment” is defined in s 5 of the Migration Act as follows:

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

  (a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

Background

12    The appellant’s protection visa had been issued in response to the following claims as summarised by the Tribunal (at [8]):

  a.    He is an ethnic Kurd

  b.    He has been targeted by the Basij in the past.

c.    If he is deported to Iran from a western country he will be seen as a failed asylum seeker.

  d.    Iranian authorities will assume he is against the regime

  e.    He has been critical of the regime in the past

f.    He departed the country illegally on a false passport in the name of Mohammed.

g.    He did not complete his national service and deserted the army after rescuing a friend who was a political prisoner on the army base where he was serving

  h.    He fears being jailed, tortured or killed for these reasons.

(Errors in original.)

13    Following the issue of his protection visa, the Department formed the view that a number of the appellant’s claims were false. It decided that he had in fact completed or been exempted from his national military service, that the claims arising from his alleged desertion from the army were thus false, that he did not use a false passport in the name of “Mohammed”, and that he had departed Iran lawfully using a passport issued in his own name. Because the appellant was able to leave Iran using his own passport, the Department also decided that he did not have an adverse risk profile of the kind that he originally had claimed.

14    What caused the Department to form these views was the appellant’s departure from Australia on 16 November 2012 using an Australian issued Titre de Voyage. Upon his return to Australia, he claimed in his incoming passenger card that he had spent most of his time abroad in Thailand. He was interviewed at Melbourne Airport and found to be in possession of an Iranian passport issued at Canberra on 19 October 2012 in his own name. The passport appeared to be genuine. The appellant later confirmed he had used this passport to travel to Iran to visit his sick mother.

15    The passport contained under the heading “observation” some words in Persian (Farsi). A Departmental “colleague” undertook “an informal translation” of these words which were said to be as follows in English: “Last departed on 05/03/2010 (14/12/1388 Persian calendar) from the Iran Khomeini Airport (Tehran Airport)”. From this, the Department concluded that the appellant had lawfully left Iran using a valid passport issued in his own name. Because it appeared to be accepted that an Iranian male citizen of military service age could not obtain such a passport without completing or being exempt from national military service, it followed that the appellant’s claims associated with his alleged desertion from the army were found to be false.

16    Before the Tribunal, the member may have misconstrued this evidence. The member said that the passport showed an “exit visa from Tehran dated [March] 2010” (at [10]). In fact, no such “exit visa” had been issued to the appellant. We shall return to this error.

17    At [20], the Tribunal described the appellant’s explanation for the presence of this Iranian passport as follows:

The [appellant] claimed that he was able to obtain an Iranian passport via payment of a bribe to an agent in Iran and not because of any incorrect information provided to the Department in his application. He claims that he sent his brother in law an amount of AUD$[amount] to pay agents in Iran to “secure the paperwork in Iran to ensure that the Iranian embassy in Canberra would issue my passport.” He further claimed that he was instructed by the agent in Iran to travel to and depart Iran on specific dates (and that he would be removed from relevant records from those dates) in order to navigate the country’s strict entry and exit procedures without coming to the adverse attention of the Iranian authorities.

The Tribunal’s Decision

18    The Tribunal rejected the appellant’s explanation for the existence of the Iranian passport. In essence, it found that it was highly improbable that a deserter, if the appellant was a deserter, would return to Iran using a passport issued in the deserter’s name. Surely, it put to the appellant, the authorities in Iran would have known that the appellant was a deserter and would have detained him when he either arrived or departed that country. It found the appellant’s responses to such propositions – such as a claim that the passport office and the justice office were “connected but not perfectly” – to be “convoluted and vague”.

19    Ultimately, the Tribunal found that the appellant’s claims were “implausible in all respects”. The Tribunal’s key reasoning is found at [54]-[55] as follows:

The Tribunal has considered the [appellant’s] accounts about these matters and finds them implausible and lacking in credibility. For example, the [appellant’s] reasons for purchasing a passport in his own name defy logic. He claims that he cannot return to Iran because of his adverse profile and there are subpoenas for his arrest. He claims that the justice and passport systems aren’t linked so they wouldn’t know necessarily, that there was a subpoena for him. His adviser claims they are linked sufficiently so as to generate a real chance that he would be apprehended at the airport if he returned. He claims that part of the payment he made went to airport officials and he had to depart at a particular time at a particular gate when a particular person was on duty. If the [appellant] had such an adverse profile it would defy logic to apply for and pay $[amount] for a passport in his own name and to then have to go to all the trouble of arranging for particular people to be at a particular place at a particular time to facilitate not only his re-entry but his departure. The Tribunal also noted and put to the [appellant] the fact that the subpoenas he provided to the Tribunal were unsigned.

The Tribunal does not accept that the [appellant] departed Iran on a false passport in a false name, or that the passport that he has subsequently acquired was obtained through bribes. The Tribunal notes the [appellant’s] submission that bribery is rife in Iran and obtaining false documents is easy. That may or may not be true but in the present case the Tribunal finds the [appellant’s] account of obtaining his passport implausible in all respects. Hence the Tribunal is not satisfied that the [appellant] departed Iran illegally and therefore will not come to their adverse attention should he return.

20    It followed that the Tribunal was satisfied that the appellant had given false answers in seeking his protection visa, thus enlivening the power of cancellation in s 109 of the Migration Act. It went on to consider whether that power should be exercised having regard to, amongst other matters, the appellant’s response to the Department’s notice concerning non-compliance and the prescribed circumstances set out in reg 2.41 of the Migration Regulations 1994 (Cth). In summary, the Tribunal considered the following matters:

(a)    the correct information;

(b)    the passport originally used to leave Iran;

(c)    whether the decision to grant the protection visa was based, wholly or partly, on false information;

(d)    the circumstances concerning the giving of the false information;

(e)    the appellant’s present circumstances;

(f)    the appellant’s subsequent behaviour concerning his obligations under Subdiv C of Div 3 of Pt 2 of the Migration Act;

(g)    any other instances of non-compliance by the appellant;

(h)    the time that had elapsed since the giving of false information;

(i)    any breaches of the law since that time;

(j)    any contribution made to the Australian community;

(k)    the circumstances of any affected children;

(l)    Australia’s non-refoulement obligations; and

(m)    other additional considerations.

21    It is not necessary to set out the Tribunal’s consideration of each of these factors. It is noteworthy that the appellant’s claims concerning his exposure to the risk of serious and significant harm included, amongst other things, the fact of his conversion to Christianity since arriving in Australia as well as his Kurdish ethnicity. The Tribunal considered the risks associated with being a Christian in Iran. It found, based on country information, that the appellant would not face significant and/or serious harm in Iran because of the appellant’s Christian faith. It addressed the other risks identified by the appellant at [93] as follows:

I have also considered whether each of the integers of claims identified above would amount to the [appellant] being at real risk of significant harm and have found them not to be so.

In that respect, it should be noted that the appellant only ever alleged that as a Kurd he had been discriminated against. He did not allege that his Kurdish ethnicity exposed him to more serious types of harm such as, for example, the threat of violence. These claims were considered by the Tribunal at [59] in the following way:

The Tribunal sought information from the [appellant] about the harm he claims to have suffered prior to departing Iran as a result of his Kurdish ethnicity. The [appellant’s] evidence amounts to what could be identified as harassment, teasing and possibly bullying, but most certainly not significant harm envisaged by the Refugees Convention and Australia’s Migration Act. The Tribunal is not satisfied that the [appellant] was or would suffer significant harm as a result of his Kurdish ethnicity, if he was returned to Iran.

22    It is also noteworthy that the Tribunal considered, under the heading “Additional considerations” the possibility that the cancellation of the appellant’s visa might lead to “indefinite detention”. The possibility of indefinite detention arose, it was thought, because the Iranian government might refuse to accept the appellant as an involuntary returnee. That understanding was said by the appellant to be baseless. Earlier, at [61], the Tribunal appeared to make a finding of fact about Iran’s attitude to involuntary returnees. It said:

The [appellant] made earlier written submissions about his fear of returning to Iran because he would be persecuted as a failed asylum seeker. However he did not pursue this at [the] hearing and in any case, the Tribunal notes that the Iranian authorities do not accept involuntary returns. If the [appellant] returned to Iran he would do so voluntarily and it is difficult to see, in these circumstances, how he could be perceived as being anti-regime.

(Emphasis added.)

23    The Tribunal decided that affirming the delegate’s decision would not result in indefinite detention. At [95]-[96], the Tribunal said:

The Tribunal is mindful that a decision to cancel the [appellant’s] visa may result in his indefinite detention. The Iranian government, for example, has refused to accept involuntary returnees and that as a result the [appellant], if he were unwilling to return, would face indefinite detention.

The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention. In this case it does not. The [appellant] is an Iranian citizen and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm whether the [appellant] faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.

We shall return to these paragraphs.

24    Applying the factors required by reg 2.41, and having considered the appellant’s contentions, the Tribunal affirmed the delegate’s decision.

The proceeding in the Federal Circuit Court

25    The three grounds of review before the learned primary judge were as follows:

(1)    The Tribunal failed to carry out its statutory task or alternatively, failed to have regard to a relevant consideration, namely that on cancellation of his visa the appellant was at immediate and ongoing risk of being removed to Iran or taken to a regional processing country pursuant to s 198AD of the Migration Act.

(2)    The Tribunal erred by failing to perform its statutory task, namely by failing to give reasons for concluding that the appellant was not at real risk of “significant harm” other than in respect of his conversion to Christianity.

(3)    The Tribunal erred by making a decision which was legally unreasonable, in that it made adverse credibility assessments which were perfunctory, emphatic and unsustainable on their own terms.

26    Each ground of review was dismissed below. Again, it is unnecessary for the purposes of dealing with this appeal to set out in any detail the reasons of the learned primary judge. In substance, her Honour found as follows:

(1)    The first ground was dismissed because s 198AD (set out above) did not apply to the appellant because he had entered Australia by sea before 13 August 2012. The provision, correctly construed, only applied to those individuals who had entered Australia after that date. Moreover, the Tribunal did not err in failing to consider the possibility of the appellant being removed to an offshore processing centre. The better view was that this would not happen. The Tribunal otherwise properly considered the risk of indefinite detention.

(2)    The second ground was dismissed after a consideration of the Tribunal’s reasons. Her Honour decided that the appellant’s claims about his Kurdish ethnicity had been considered and the Tribunal had not erred in deciding that the risk of harassment, teasing and possible bullying did not amount to “significant harm”, as defined.

(3)    The third ground was dismissed on the ground that whilst reasonable minds might differ about the plausibility of the appellant’s explanation of his return to Iran on a passport in his own name, the conclusion reached by the Tribunal about this matter could not be characterised as illogical or otherwise legally unreasonable.

The Appeal

27    The three grounds of appeal comprised the failure of the Court below to agree with the three grounds of review which were before it.

Ground One

28    The appellant contended that the Tribunal erred when it failed to understand the legal consequences of affirming the delegate’s decision. It was not disputed that the Tribunal was required to understand accurately the legal consequences of its decision. In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Allsop CJ and Katzmann J said at [9]-[10]:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act.

29    The Tribunal thought that the appellant was subject to the risk of indefinite detention, but this could be avoided by the appellant agreeing to return to Iran, which the Tribunal thought he could do safely. This analysis was mistaken, it was said, in two ways.

30    First, it was contended that the risk faced by the appellant if not returned to Iran was removal to a regional processing country pursuant to s 198AD, being the Independent State of Papua New Guinea or the Republic of Nauru. This risk was never considered by the Tribunal.

31    Alternatively, the Tribunal failed to understand the legal consequence that the appellant would be removed to Iran against his will pursuant to s 198. There was no possibility, as it thought, of indefinite detention. The example it relied upon of Iran refusing entry to involuntary returnees was just speculation. Instead, the appellant was bound to be removed to Iran pursuant to s 198(5).

Section 198AD of the Migration Act

32    As to the first contention, for the purposes of s 198AD, the appellant contended that this provision applied to him because he met the definition of an “unauthorised maritime arrival” as he arrived in Australia by sea and without a visa. As a result, he was subject to being taken to a regional processing country pursuant to s 198AD, rather than being kept in detention in accordance with s 198.

33    Below, as already mentioned, the primary judge accepted the Minister’s submission that s 198AD only applied to individuals entering Australia by sea on or after 13 August 2012. That is because of a transitional provision. Item 36 of Sch 1 to the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (the “2012 Amending Act”), which introduced s 198AD to the Migration Act, was in these terms:

Application—section 198AD of the Migration Act 1958

Section 198AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.

As originally enacted, s 198AD referred to “offshore entry persons” rather than “unauthorised maritime arrivals” and was relevantly in these terms:

Taking offshore entry persons to a regional processing country

(1)    Subject to sections 198AE, 198AF and 198AG, this section applies to an offshore entry person who is detained under section 189.

Note: For when this section applies to a transitory person, see section 198AH.

(2)    An officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to a regional processing country.

Powers of an officer

(3)    For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:

(a)    place the offshore entry person on a vehicle or vessel;

(b)    restrain the offshore entry person on a vehicle or vessel;

(c)    remove the offshore entry person from:

(i)    the place at which the person is detained; or

(ii)    a vehicle or vessel;

(d)    use such force as is necessary and reasonable.

(4)    If, in the course of taking an offshore entry person to a regional processing country, an officer considers that it is necessary to return the person to Australia:

(a)    subsection (3) applies until the person is returned to Australia; and

(b)    section 42 does not apply in relation to the person’s return to Australia.

…

34    In 2013, the Migration Act was amended yet again to replace references to “offshore entry person” with references to “unauthorised maritime arrival”. Item 60 of Sch 1 to the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) (the “2013 Amending Act”) was in these terms:

Application provision—subparagraph 5AA(1)(a)(i) of the Migration Act

(1)    This item applies to an unauthorised maritime arrival who entered Australia by sea as mentioned in subparagraph 5AA(1)(a)(i) of the Migration Act, as inserted by this Schedule.

(2)    The amendments made by items 18 to 47 of this Schedule apply in relation to the unauthorised maritime arrival only if he or she entered Australia by sea as mentioned in that subparagraph on or after 13 August 2012

35    One of the items subject to item 60(2) – item 20 – amended s 198AD by substituting the term “offshore entry person” with “unauthorised maritime arrival”.

36    The Minister submitted that by reason of these transitional provisions, Parliament intended to limit the application of s 198AD to those arriving on or after 13 August 2012. This did not include the appellant. So much so, it was said, is confirmed by Note 2 to s 198AD: “[t]his section does not apply in relation to a person who entered Australia by sea before 13 August 2012”. As the learned primary judge observed, such notes now form part of an Act by reason of s 13 of the Acts Interpretation Act 1901 (Cth).

37    The appellant submitted that the only provision limiting in a temporal sense the application of s 198AD was item 36 of Sch 1 to the 2012 Amending Act. That Act, however, was never itself amended by the 2013 Amending Act. Rather, item 20 of Sch 1 to the 2013 Amending Act amended only the Migration Act. It introduced a new term “unauthorised maritime arrival” which is defined without temporal limitation. Because the 2012 Amending Act was never amended, and because the appellant met the requirements of the definition of an “unauthorised maritime arrival” and was otherwise no longer an “offshore entry person” (a term that had been repealed), s 198AD(2) applied to him. In that respect, it was submitted before the primary judge that Note 2 to s 198AD was either to be read as a limitation on only s 198AD(2A) (and not also s 198AD(2)) or to be disregarded on the basis that it was wrong. Before us, only the latter argument was pressed. Counsel for the appellant contended that Note 2 could not govern the meaning and operation of s 198AD(2) as it was “misleading and erroneous”: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 321 [118].

38    We respectfully disagree with the appellant’s submission. The relevant statute is the Migration Act. It speaks with one voice, though it may be amended from time to time: Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 at 280. In 2012, the newly inserted s 198AD(2) did not apply to the appellant as he was an “offshore entry person” who had entered Australia before 13 August 2012. The transitional provision in item 36 of Sch 1 to the 2012 Amending Act manifestly placed a temporal limit on the operation of s 198AD. In 2013, s 198AD(2) was amended. By reason of item 60 of the 2013 Amending Act, it is clear that Parliament did not intend to amend s 198AD(2) so that it now applied to persons who had arrived before 13 August 2012. Rather, Parliament’s intention was to continue to exclude such persons from the reach of s 198AD(2). No amendment to the 2012 Amending Act was required to achieve that outcome. Note 2 to s 198AD correctly describes the effect of s 198AD(2).

Section 198 of the Migration Act

39    We also respectfully disagree with the appellant’s second submission concerning s 198(5). At [95], the Tribunal adverted to the possibility of indefinite detention because Iran might not accept the appellant as an involuntary returnee. There was no finding made that this would occur. It was simply considered as something that might happen. No criticism was made of the Tribunal for considering that possibility. The question which arises is whether the Tribunal erred in misunderstanding the legal consequences that would flow from affirming the Minister’s decision.

40    The appellant submitted that the only consequence of affirmation, assuming that s 198AD did not apply, was removal to Iran and not indefinite detention. He submitted that Australia’s non-refoulement obligations are no barrier to the statutory obligation imposed by s 198(5) to remove him. He cited for that purpose ss 197C and 198(11) of the Migration Act. So much so may be accepted. He also submitted that the possibility that Iran might not accept an involuntary returnee could not displace that obligation. It followed that the Tribunal had misunderstood the legal consequences of affirming the Minister’s decision and had thus erred.

41    The Minister submitted that there was no immediate prospect of removal because the obligation imposed by s 198(5) on a departmental officer was removal “as soon as reasonably practicable”. Removal is not “practicable” unless there is another country willing to receive the deportee. As the Full Court of this Court observed in NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 at 516-517 [52]:

… First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of ‘practicable’ set out at above. Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

(Footnote omitted.)

42    No “duty” to deport arises, it was said, until it is practicable to do so: SZSZM v Secretary, Department of Immigration and Border Protection [2017] FCA 458 at [67] per Barker J; Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 200 at [22]. Because it might not be “practicable” to deport the appellant, it followed that the Minister was not bound to remove him. Section 197C and Australia’s non-refoulement obligations were of no moment here precisely because the Tribunal found that the appellant could safely return to Iran.

43    In our view, the Minister’s submissions should be accepted. The Tribunal considered in some detail the likely circumstances of the appellant were he to be returned to Iran. That analysis was predicated on the assumption of his voluntary return or involuntary deportation pursuant to s 198(5). It then considered the consequences which would arise if Iran were unwilling to receive the appellant. It correctly concluded that if that possibility were to take place the appellant might face indefinite detention. In our view, it also correctly concluded that this possibility might arise in the face of the terms of s 198(5). That provision would not mandate deportation of the appellant if no country was willing to receive him: Al-Kateb v Godwin (2004) 219 CLR 562; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 367 ALR 711.

44    For these reasons, the learned primary judge did not err in dismissing ground one.

Ground Two

45    The appellant submitted that the Tribunal’s analysis of the appellant’s situation as an ethnic Kurd in Iran (set out at [93] of the reasons) for the purposes of s 36(2)(aa) of the Migration Act was cursory and dismissive and “nothing more than a passing conclusion without any supporting reasons”. It submitted that the Tribunal had failed to give “real, genuine and conscientious consideration” of the appellant’s claims concerning his Kurdish ethnicity. In reasoning at [93] it did not adopt earlier findings of fact made for the purposes of considering s 36(2)(a); rather, [93] stood alone as an independent dispositive finding made without reasons. Paragraph [59] did not cure that defect, it was submitted, because it addressed s 36(2)(a) only and not s 36(2)(aa).

46    Counsel for the appellant took the Court to material contained in a statutory declaration made by the appellant. This included a statement that he had a well-founded fear of persecution as a Kurd by the Iranian security agencies and his fear that, if returned, he will be jailed, tortured or killed for reasons which included that persecution. Other claims identified appear to have been bound up with the claims made about desertion and political opposition to the government, which the Tribunal did not accept as ever having taken place. A further claim identified was expressed in a statement made by the appellant as follows:

I grew up knowing that the Iranian people, and the Iranian authorities, considered us to be inferior and outsiders. We were raised during the time immediately after the Iran-Iraq war. During the war, some segments of the Kurdish community turned against the Iranian government. We had nothing to do with that and it was a matter of international politics. Even though during the time my siblings and I knew Iran as our only country, in high school we were constantly called traitors, by students and teachers who knew we could not argue back as it would only get us into further trouble. Our background and culture were labelled as backward, and again we could not complain without proving that we were troublemakers. My teachers would make me stand at the front of class when degrading remarks would be made about Kurdish dress and customs. This was worst in high school, when all the teachers and students were from Tehran and they could easily distinguish us by accent. To get through my high school I had to learn to be silent about these indignities but they stayed with me.

The discrimination against Kurdish people set out in the foregoing paragraph was said to constitute “degrading treatment” for the purposes of the definition of “significant harm” in the application of s 36(2)(aa).

47    The Minister disagreed with the appellant’s reading of [93]. He relied upon [91]-[92] of the Tribunal’s reasons which addressed the appellant’s risk that he would face serious harm for the purposes of s 36(2)(a) by reason of his “profile”. That profile included the appellant’s Kurdish ethnicity. In those paragraphs, the Tribunal reasoned as follows:

The Tribunal has considered the cumulative impact of the [appellant’s] profile in relation to refugee convention grounds, in particular, as someone who has developed a commitment to Christianity while in Australia, which in addition may lead to impugned political opinions, having embraced Western culture, being an army deserter a member of the Green movement, being a Faili Kurd and having sought but being denied asylum after departing Iran illegally.

Having found that the [appellant] did not depart Iran illegally, did not desert the army, [is] of no interest to the authorities for those or for any other reason, would not face significant harm on the basis of his Christianity the Tribunal is not satisfied that the [appellant] would face serious harm for those or for any reasons in the reasonably foreseeable future based upon Convention grounds were he to return to Iran.

(Emphasis added and errors in original.)

48    In that respect, the Tribunal had earlier considered the appellant’s claims arising from his Kurdish ethnicity. It did this at [59] which we have already reproduced. It also did so at [41] as follows:

The Tribunal asked the [appellant] what harm he suffered prior to his departure he claimed that he was a traitor because he deserted and also because he helped a political prisoner. The Tribunal asked again what harm he suffered and he said he did not suffer any harm except discrimination because he was a Kurd. The [appellant] claims that other soldiers knew he was a Kurd and they picked on him and accused him of attending protests and being a traitor because he was against the government. He also claims that the other soldiers criticised the way he dressed and did his hair.

(Errors in original.)

49    No complaint was made about the Tribunal’s consideration of this issue for the purposes of applying s 36(2)(a) as set out at [91]-[92] of its reasons. The Minister then submitted that the reasoning process of the Tribunal for s 36(2)(aa) could be discerned from the expression in [93], “I have also considered whether each of the integers of claims identified above would amount to the [appellant] being at real risk of significant harm”. It found that they did not. That decision necessarily followed from the earlier conclusions that the appellant did not depart Iran illegally, did not desert the army, was of no interest to the Iranian authorities, and would not face significant harm due to his Christianity or from “being a Faili Kurd”, to use the language at [91].

50    The Minister also referred the Court to a decision of the Full Court of this Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (“Maioha”) where Rares and Robertson JJ at [45] said that a decision-maker must, as a matter of substance, have regard to the representations made. More recently, Allsop CJ expressed the obligation to consider representations made to a decision-maker in the following terms:

From the above discussion it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance.

See Navoto v Minister for Home Affairs [2019] FCA 295 at [47] per Allsop CJ; upheld on appeal in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86].

51    We respectfully adopt this expression of the duty to take into account representations.

52    The Minister finally submitted that the claims based on the appellant’s ethnicity fell into two groups. First, those bound up with claims, political in nature, which the Tribunal found were without factual foundation. And second, those bound up with the treatment of Kurdish people more generally in Iran. This second group of claims, he submitted, were dealt with at [41] and [59]. The discrimination there described did not, it was submitted, constitute “degrading treatment” as defined. It fell short of “extreme humiliation which is unreasonable” and that is why the Tribunal decided it was not “significant harm”.

53    We are inclined to agree with the Minister’s submissions. On balance, we think the Tribunal addressed the substance of the appellant’s claims concerning his Kurdish ethnicity. It expressly recorded his fears that he will be “jailed, tortured or killed” for reasons including his ethnicity: [8(h)] and [62(d)]. It summarised the appellant’s statutory declaration which contained the paragraph about discrimination against Kurdish people set out above: [25, especially (b)]. And it made findings of fact about the degree of discrimination at [41] and [59] which in our view were open to it to make. It then reached conclusions concerning s 36(2)(a) at [91]-[92] based on that evidence and those findings. In our view, it reached its conclusion concerning s 36(2)(aa) at [93] again based upon the same evidence and findings. It follows that there was no failure to take into account important material.

Ground Three

54    The appellant submitted that the rejection of his explanation for the use of an Iranian passport was legally unreasonable because the adverse credibility assessments made by the Tribunal were “perfunctory, emphatic and unsustainable”. In particular, the appellant criticised the Tribunal’s conclusion that his explanation was “implausible in all respects” and defied “logic”. For one thing, it was submitted that the Tribunal overlooked key evidence which showed that the appellant’s use of the Iranian passport in 2012 was entirely rational. That material did not support the rejection of the appellant’s credibility. The decision of the Full Court of this Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [26] was relied upon.

55    It was first said that the Tribunal had overlooked a claim that the appellant arranged to pay $22,000 to a certain Second Lieutenant in the Iranian passport police to amend the appellant’s records by assigning him a legal date of departure and also by removing any “bar or blacklisting” connected with his name. It was contended that there is no reference to this part of the explanation in the reasons of the Tribunal. In the submission of the appellant, this explanation shows that issuing a passport to him in his own name was thus “not problematic”. Because his Iranian records would be altered, he could safely enter and leave Iran. He also submitted that the Tribunal misunderstood his claim when at [20] it said that the arrangement involved removing his name from the records for the dates of his travel to Iran in 2012. This particular claim was, however, never made.

56    Pausing at this moment it may be observed that the appellant claims that if he is returned to Iran he will be “jailed, tortured or killed”. Yet an essential feature of ground three is that he also claims that he was able to return to Iran in 2012 in perfect safety with an Iranian passport valid, it would appear, for five years, with his records having been amended to remove any bar or blacklisting.

57    The appellant then proceeded to take the Court to the evidence establishing each of the four steps which comprised his procurement of the Iranian passport in 2012. The first step was reporting to police that his original passport had been lost so as to trigger a reason for a replacement. The next step was to obtain a loan of $35,000 to fund the operation (only $22,000 was needed to bribe the passport office). The third step was to have the funds transferred to his father in Iran via a local jewellery shop, called Najaf Jewellers. The last step was to go online and apply for a new passport. We are quite satisfied that there was evidence before the Tribunal in support of all four steps. Indeed, some of this evidence would appear to have been accepted as authentic by the Tribunal. At [46], it said:

The Tribunal asked the [appellant] to explain the $[amount] deposited into his account on [date] October 2012. He said that it was received as a loan from [a] Bank. There were no loan documents and an entry in his bank account showed an entry listed as “[entry deleted]” but no source of those funds was listed. The Tribunal suggested that the information was insufficient to prove that it was a loan. The [appellant] said that he made repayments. The Tribunal put to the [appellant] that he had not provided any evidence of those repayments or of the payments totalling $[amount] to some other account. The Tribunal asked for evidence of those repayments and transactions. The adviser referred the Tribunal to page 12 of its submissions where it showed transfers between [several money exchange funds]. The Tribunal has no further concerns about these matters.

(Emphasis added.)

58    The appellant submitted that the finding of “implausibility” did not match other findings of the Tribunal (about the transfers of money to Iran). Additionally, it was unsafe because it did not weigh all the evidence (it ignored the claim about amending the passport records). The appellant relied upon the following passage from a decision of the Full Court of this Court in BMV16 v Minister for Home Affairs (2018) 261 FCR 476 at 497-498 [80]:

In determining whether a particular decision was legally unreasonable, it is necessary to:

(1)    identify precisely the decision complained of;

(2)    examine the terms, scope and purpose of the statutory power under which the decision was made; and

(3)    evaluate the decision made to see “whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense”.

59    Here, it was said that, having regard to the material before it, the Tribunal’s decision was “inherently untenable, is unjust and lacks common sense”: see also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5-6 [11].

60    The Minister submitted that the finding about implausibility did not concern every claim made by the appellant. Rather, it went to the key proposition that the passport held by the appellant and used in 2012 was not false but genuine and for that purpose contained an accurate statement about how the appellant had originally left Iran in 2010 (legally on another passport). It followed that the appellant had therefore given false information to the Department. He submitted that the appellant’s claim rose no higher than “emphatic disagreement” with the Tribunal’s rejection of the appellant’s explanation concerning his 2012 Iranian passport: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 518 [61].

61    The Minister also submitted that the Tribunal did not overlook or misunderstand the evidence concerning the claim that a passport was needed that would falsely show that the appellant had lawfully left Iran. He referred to the following passage from the reasons of the Tribunal at [32]:

Pressed to explain how it was that he was able to re-enter Iran on a passport issued in his name without being detained and made to complete his national service the [appellant] claimed that he paid a great deal of money to an agent in Iran to get a passport in Iran to show that he left Iran legally.

We also note the following at [31]:

In any case, the [appellant] said that one of his father’s clients was an officer in the Passport Office and he arranged with him to organise a passport for him with an exit stamp dated in March 2010.

In our view, these passages show that the Tribunal understood the claim the appellant had made about the need to have a passport that showed he had left Iran lawfully. Ultimately, it did not believe that claim to be true. In rejecting it, in essence the Tribunal found that it was improbable that a person who contended that they had been an army deserter, had rescued a political prisoner, and had been critical of the Iranian regime, would procure a passport that was false in almost all respects, save that it used that person’s actual name. In our view, and with respect, it was open to the Tribunal to be sceptical of the claim made. The Tribunal’s incredulity was not illogical or irrational; it did not lack common sense. When then considered with the state of the material before it, in our view, the Tribunal was entitled to reach its conclusion. That included evidence that the 2012 passport was found to be free of “fraud tampering”; the appellant’s responses, which were “convoluted and vague”; the lack of evidence concerning his mother’s illness; the possibility that the monies borrowed were used for other purposes (there was no evidence, for example, of any amount being used to pay his mother’s alleged medical expenses, as claimed); and the appellant’s explanation concerning certain subpoenas which he said had been issued and which the Tribunal found to be “vague and irrelevant”.

62    In our view, the Tribunal’s course of fact finding on the appellant’s central claim was not legally unreasonable. With respect to the appellant, in our view, ground three in substance invites the Court to reconsider the evidence his Counsel had identified in the appeal book, and asks the Court to form a different conclusion than that found below. In other words, ground three was an attempt to have the Court undertake impermissible merits review of findings of fact made by the Tribunal. Ground three is rejected.

63    In reaching this conclusion, we are mindful that the Tribunal did not expressly refer to the claim that the appellant’s Iranian records would be amended by removing any bar or blacklisting connected to his real name (or, perhaps, misdescribed it by referring to the removal of his name from the records of his 2012 travels). But in our view, it was not obliged to refer to every step or integer in the appellant’s explanation for the origin of his 2012 passport: Maioha at [62] per Flick J. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [46], French, Sackville and Hely JJ stated:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.

In our opinion, that specific aspect of his explanation could not have diminished the Tribunal’s level of disbelief. That is especially because the Tribunal expressly put its concerns about the credibility of the explanation to the appellant to obtain his response. In that response, the appellant did not, it would appear, refer to his claim about amended records, but said, amongst other things, that there was no justice in Iran, and that using a false name would have been “too risky and the authorities would accuse him of being a spy or something”. In our view, the Tribunal understood the nature of the claim made.

64    Nor does the mistaken reference to an “exit visa” compel a contrary conclusion. The mistake was made only once. The Tribunal in its reasons also referred to the 2012 passport as having an “exit stamp”. It did this twice. Once again, in our view, these are immaterial mistakes. We are satisfied that the Tribunal correctly understood the claim that a passport needed to be procured in 2012 that showed that the appellant had lawfully left Iran in 2010.

65    For the foregoing reasons, the appeal should be dismissed with costs.

Associate:

Dated:    11 September 2019