FEDERAL COURT OF AUSTRALIA

DOU16 v Minister for Home Affairs [2019] FCAFC 212

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to further amend the Amended Notice of Appeal is refused.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court made on 23 May 2019 be set aside and in lieu thereof:

(a)    a writ of certiorari issue quashing the decision of the Second Respondent; and

(b)    a writ of mandamus issue, remitting the matter to the Second Respondent and requiring it to determine the matter according to law.

4.    The First Respondent pay the Appellants’ costs of the appeal and the proceeding before the Federal Circuit Court.

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

REASONS FOR JUDGMENT

THE COURT:

1    This proceeding is an appeal, by a family from Iran, from the judgment of the Federal Circuit Court made 6 March 2019, dismissing their application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) made 10 November 2016. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister) to refuse to grant the second appellant a protection visa.

2    The second appellant is the father of the family, and the appeal turns on the way the Tribunal decided his visa application. The first appellant, the mother, and the third appellant, their child, did not make separate visa applications. Their applications were based on the fact that they are members of the same family unit as the second appellant.

3    For the reasons we now explain, the Court made orders allowing the appeal, with costs.

The Tribunal Decision

4    The appellants arrived in Australia in 2013 and the second appellant applied for a protection (Class XA) visa at that time.

5    The second appellant’s claims were summarised by the Tribunal (at [22]) as follows:

The applicant is a former alcoholic and drug addict who was repeatedly arrested in Iran. His drug dependency journey began with alcohol at the age of 13 and then developed through to the use of opioids and ICE. In addition he claims to have escaped completing his military service as a young adult approximately seventeen years ago. Upon the passing of his father and receiving an inheritance he used the money to depart Iran through Imam Khomeini Airport on a fraudulently obtained exit permit, travelling to Indonesia where he conscripted a people smuggler to take him to Australia arriving in May 2013. Since arriving to Australia he has received drug rehabilitation treatment and has not used drugs. The applicant is married and was accompanied to Australia by his wife and young son. While in Australia he and his wife claim to have undergone a religious conversion to Christianity.

6    Relevantly to the appeal, the second appellant claimed that he left the Islamic Republic of Iran illegally, using a false document that showed that he had completed his military service with the Iranian navy, when he had not. He claimed to fear persecution if returned to Iran on the basis, amongst other things, that the Iranian authorities might discover that he had illegally procured a completion of military service certificate by bribery.

7    The Tribunal accepted that the second appellant had been a drug addict in Iran; that he had been known to the Iranian police for drug possession; that he had been arrested for installing satellite dishes for which he had paid a fine; that in Australia he had ceased to be a drug addict; and that he would remain free from drug addiction if returned to Iran. It did not accept that he and his family had converted to Christianity and it did not accept that he might be viewed by the Iranian authorities as a spy.

8    Importantly to the appeal the Tribunal accepted that by paying a bribe the second appellant had procured a completion of military service certificate which falsely stated that he had finished his service in the Iranian Navy. However, it rejected the second appellant’s claim that if returned to Iran he would be subjected to a more stringent interview where it might become apparent that he had obtained that certificate illegally. The Tribunal did not think that this gave rise to any real chance the second appellant would suffer serious or significant harm for the purposes of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). It considered that, at most, it exposed him to the risk that he might have to pay a fine.

9    The Tribunal addressed this claim (at [43]-[44]) of the decision where it said:

The applicant also claimed that he had obtained a completion of military service certificate by bribing officials which he used to exit the country. He is concerned that upon return it would become apparent were he subjected to a more stringent interview that he had not completed his service and that as a result he obtained his certificate illegally. He claims to have paid a middle man who knew the right people in the Department of Navy, in which-he had served his military service, to obtain the certificate. Considering that the applicant claim the certificate was real and that it was obtained through the department in which he served I find that the chance that this certificate was obtained without amending the records to be unlikely and as such conclude that the chance of serious harm or risk of significant harm for reasons related to having bribed officials to acquire a military service certificate is present but remote.

As to not having completed his military service and whether he could be identified by means other than through the records system, such as random interaction with military personnel who knew him personally, I note that country information suggests that due to budgetary challenges the Iranian government has allowed people who have defaulted on their service for more than eight years to pay a fine with the size of the fine varying based on the level of education, with a higher education demanding higher fines. As such I find that paying a fine does not amount to either serious or significant harm, considering that it would be a lower amount as he has not completed any higher education and that he noted in the hearing his sister-in-law is a doctor and wealthy enough to have paid their costs while in Indonesia.

(Footnote omitted.)

10    The foregoing reasoning is challenged in the appeal.

11    The Tribunal was ultimately not satisfied that the appellants had satisfied the criteria for the grant of a protection visa.

The application to the Federal Circuit Court

12    The application for judicial review to the Federal Circuit Court raised five grounds of review, but we need only mention the two grounds pressed on appeal. They were that:

(a)    the Tribunal failed to consider the second appellant’s claims or an integer of the second appellant’s claims to face a real chance of serious harm or real risk of significant harm by reason of having paid a bribe to obtain a false certificate that he had completed his military service; and

(b)    the Tribunal’s finding that the second appellant only faced a remote chance of serious or significant harm as a result of the bribe he had paid to obtain the false certificate was irrational and illogical.

13    In relation to the first ground of review, the learned primary judge found (at [54]) that the Tribunal had considered the second appellant’s claim at [43] of the Tribunal’s reasons (as set out above). His Honour concluded (at [55]) that that paragraph of the Tribunal’s reasons was a summary of the claim as put to the Tribunal by the second appellant’s representative during interview, relying for that conclusion upon the transcript of the hearing before the Tribunal. His Honour concluded (at [57]) that:

On reading the transcript of the hearing, the Tribunal did engage with the second applicant and his representative in order to understand the arguments being put in relation to the certificate. The Tribunal then made a decision having regard to that information. Consequently, I am of the view there is no failure on the part of the Tribunal to engage with the case as put by the applicant or to consider his other claims.

14    The manner in which the primary judge deployed the transcript of the hearing before the Tribunal in reaching the conclusion at [57] is not entirely clear. If his Honour read the transcript for the purpose of determining the nature and ambit of the claims advanced by the second appellant before the Tribunal, as appears to be the case at [55] of his Honour’s reasons, such use is entirely permissible. However, if his Honour read the transcript for the purpose of assessing the extent to which the Tribunal considered a claim made by the second appellant, which appears to be suggested at [57], in our view such use is impermissible because the transcript is not the record of the reasons for decision of the Tribunal: WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534 at [30].

15    The primary judge construed the second ground of review as a contention that the Tribunal should have considered that the fact that the second appellant paid a bribe to obtain the false certificate might be discovered by means other than examining Navy personnel records. His Honour also rejected this ground. His Honour noted that the Tribunal had considered whether the fact the second appellant had obtained a false certificate would be uncovered through his random interactions with former naval personnel who knew him personally. That observation was, with respect, not correct. What the Tribunal considered was other ways in which the second appellant’s failure to complete his naval service might be discovered.

16    The learned primary judge concluded (at [60]):

In my view, the fact the Tribunal did not canvass all alternative ways in which the bribe might be discovered is not indicative of error. The Tribunal was given a positive account of how the false certificate had been obtained and was therefore entitled to find that the chance of discovery that the certificate had been obtained by paying a bribe was remote. The Tribunal was not required to consider every possible contention that could have been made: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].

17    His Honour dismissed the application for judicial review.

The Appeal to this Court

18    The amended notice of appeal reproduced the two grounds of review set out above at [12] but added particulars in relation to each ground.

19    The particulars in relation to the first ground are as follows:

a.    The second appellant did not complete his compulsory military service in Iran with the Navy.

b.    The second appellant claimed to fear harm from the Iranian authorities for: having paid a bribe to obtain a certificate of military service (the certificate) in the Navy to enable him to obtain a passport; not completing his military service: and applying for asylum in Australia.

c.    The Tribunal found at [43] of its reasons that it was unlikely the records of the Navy had not been amended to state that the second appellant had completed military service. Therefore:

   i.    it was unlikely the second appellant’s bribe would be discovered; and

ii.    the risk the appellant would suffer harm as a result of having paid the bribe was remote.

d.    The Tribunal found at [44] of its reasons that if the second appellant’s failure to complete military service were discovered by other means the second appellant would face a fine, which would not amount to significant or serious harm.

 e.    The Tribunal failed to consider:

i.    the likelihood the second appellant’s failure to complete military service would be discovered by other means apart from the Navy records;

ii.    if, as a result of the second appellant’s failure to complete military service, the second appellant’s payment of a bribe for the certificate would also be discovered; and

iii.    whether, considering together both possible pathways of discovery of the bribe – the Navy records and other means – the risk of the appellant suffering serious or significant harm as a result of the bribe satisfied the real chance or real risk test.

f.    The Learned Primary Judge found that the second appellant’s claim relating to the bribe had been put primarily on the basis that he would be discovered through the Navy records, and considered by the Tribunal on that basis: DOU16 & Ors v Minister for Immigration & Anor [2019] FCCA 1367, [53]-[57]).

g.    The Learned Primary Judge erred in not finding the Tribunal had not considered the following claims or integers of claims that clearly emerged from the material:

i.    if the second appellant’s punishment for not completing military service would result in his obtaining of the certificate being discovered by the Iranian authorities and if that would increase the severity of any harm suffered; and

ii.    having regard to the potential for the second appellant’s failure to complete military service and certificate being discovered by other means whether the risk of the second appellant facing significant or serious harm for having obtained the certificate exceeded the “real chance” test.

20    The particulars in relation to the second ground are as follows:

 a.    The appellants rely on the particulars in relation to ground 1.

b.    It was irrational and/or illogical for the Tribunal to conclude at [44] of its reasons that the second appellant would only face a fine if the Iranian authorities discovered he had not completed his military service.

c.    Further and alternatively, it was illogical and/or irrational for the Tribunal to conclude at [43] of its reasons that the second appellant faced a remote chance of serious or significant harm for having paid the bribe for the certificate without making findings as to the cumulative likelihood of the discovery that the second appellant had not completed his military service at the airport and/or by other means.

d.    The Learned Primary Judge erred in finding that the Tribunal’s reasoning and findings were not irrational or illogical because the Tribunal had considered the primary basis upon which the second appellant had put his case at the Tribunal interview: that his payment of the bribe would be discovered through inspection of the Navy records upon re-entering Iran.

Ground One

21    The appellants submitted that the Tribunal erred by failing to consider that the second appellant’s bribery of an official to obtain a false completion of military service certificate might be found out by a means other than the checking of Navy personnel records. The appellants argued:

(a)    at [44], that in finding that the harm the second appellant would suffer if it was discovered that he had not completed his military service would only be a fine, the Tribunal failed to consider whether he would suffer additional punishment for having failed to complete military service because he had obtained a false completion of military service certificate;

(b)    at [43], that the Tribunal only considered the risk that the second appellant having obtained a false certificate would be discovered when he re-entered Iran. It did not consider the risk the second appellant faced of discovery in the community.

22    The appellants submitted that (at [44]) the Tribunal recognised the risk that the second appellant’s non-completion of military service might be discovered through random interactions with former naval personnel who knew him, but it did not address whether this might also lead to the discovery of the false certificate. They argued that while the Tribunal found, pursuant to country information, that it was likely that the second appellant would only face a fine for failure to complete his military service, it failed to consider what punishment he might suffer if it was discovered that he had bribed a public official to obtain the false certificate.

23    The appellants submitted that they had not limited the claims to the risk that the second appellant’s actions in illegally departing Iran using a false certificate would only be discovered on re-entry to Iran (considered by the Tribunal at [43]). The second appellant relevantly claimed:

I am certain that if I am forced to return to Iran I will be arrested and detained by the authorities as soon as I arrive. Once I am arrested I will be tortured and abused. I will be jailed and then I could be killed. I left Iran with a false passport and I have not completed Military Service. I fear I would be viewed as a spy because I did not complete Military Service, and that I would be killed by the authorities because of this…

24    The appellants also contended that the risk that the second appellant’s bribery would be discovered by means other than an examination of Navy personnel records on re-entry “clearly emerged” from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68]. They submitted that the claim that the second appellant’s failure to complete his naval service might be detected “in the community” clearly emerged from the materials was shown by the fact that the Tribunal expressly addressed that issue.

25    The appellants argued that while the Tribunal expressly considered the possibility that the Iranian authorities would discover he had not completed his military service through “random interaction with military personnel who knew him personally” it had failed to make a necessary finding about that. They also contended that the second appellant claimed that if returned to Iran he would face a risk that his procurement of the false certificate through bribing a public official would be discovered. They said that this meant that the second appellant faced a risk of suffering greater punishment by Iranian authorities than a person who merely failed to complete military service, which the Tribunal had failed to consider.

26    The Minister disputed the proposition that the Tribunal had contemplated two distinct ways in which the false certificate and this bribing of an official to procure it might be discovered by Iranian authorities. He also disputed the contention that if the second appellant was found to have not completed his service with the Iranian Navy, it would follow that his bribing of officials would also be exposed. The Minister argued that there was “no necessary connection” between these possibilities. The Minister submitted that the fact that the Tribunal had not expressly dealt with “each and every other way” in which the second appellant’s act of bribery might be uncovered was not indicative of error.

27    In the alternative the Minister contended that it should not be inferred from the absence of express reference to the possibility that the falsification of the certificate would be discovered through random interactions by the second appellant with former naval personnel that knew him, that the Tribunal had not considered this. The Minister urged the Court not to construe the Tribunal reasons “with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. He also relied on the observations of Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 where their Honours said, at [53]:

It is uncontroversial to say that, before a court on judicial review of these matters, an applicant assumes the burden of persuading the court to draw the inference of a failure to deal with a claim or consider a matter the tribunal was obliged to consider, or make the finding of jurisdictional error, for which she or he contends. Some of the decisions to which the Minister referred the Court make this plain: for example, SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]; SZGUR 241 CLR 594 at [67]. The visa applicant in the present appeal accepted that burden and has, in our opinion, discharged it.

28    The Minister submitted that any risk the second appellant might face harm arising from the Iranian authorities discovering that he had procured a false certificate, as a result of any random interactions with former naval personnel who knew him, had never been central to the second appellant’s claims. Instead, the second appellant’s relevant claim was centred upon his being immediately caught upon re-entry into Iran. The Minister argued that the appellants’ case was quite unlike MZYTS where the Tribunal had failed to address a substantial claim. The Court in that case said at [62]:

As we have set out above, the visa applicant’s claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant’s claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review.

29    The Minister relied on the decision in Singh v Minister for Home Affairs [2019] FCAFC 3 at [37(2)(b)] where Reeves, O’Callaghan and Thawley JJ said:

… it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal

30    The Minister also submitted that the second appellant had made a raft of claims about his drug addiction, his alleged conversion to Christianity, and his fear of being found to have bribed officials which, over time, he had recast: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ. The Minister argued that by the time of the Tribunal hearing, the second appellant’s claim to fear harm was only ever put on the basis that the bribe would be uncovered by an examination of his records on re-entry. In other words, it had never been an essential integer of the claims made by the second appellant that his bribery of a public official to obtain the false certificate might be discovered as a result of his random interactions with military personnel who knew him.

31    The Minister also relied upon the decision of the Full Court in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ, as follows:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

32    In AYY17 the Full Court cited with approval a summary of the principles relating to whether a claim “clearly emerges” from the materials before a decision-maker, as collected by Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512. The Full Court noted as follows:

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37.    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38.    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time

See also Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [69]-[70] per Bromwich and Wheelahan JJ.

33    The Minister argued that in the circumstances of the present case, because it had never been suggested that the second appellant’s procuration of a false certificate through bribery might be discovered as a result of any random interactions with former naval personnel that knew him, it followed that the Tribunal had not erred in the way the appellants suggested. The Minister emphasised that the appellants had been represented by a registered migration agent in the Tribunal and by counsel in the Federal Circuit Court, and thus they had had every opportunity to expressly make that claim if they wished to do so.

Consideration

34    The issue for the Tribunal was whether there was a real chance that the second appellant would be persecuted for one of the reasons set out in s 5J(1)(a) of the Act. As the Full Court said in MYZTS, that called for a close consideration of the second appellant’s situation. The Full Court further said (at [35]):

The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395) at [73]-[76]:

The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.

Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.

Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.

35    A determination as to whether a Tribunal’s inquiry has been lawfully undertaken will often involve issues of judgement regarding the nature of the claims for consideration, either expressly made or which “clearly emerge” from the materials. Whether a claim “clearly emerges” from the material also involves issues of judgment. A Tribunal may err in law if it fails to complete a “close consideration” of a substantial claim. Whether it has done so will turn upon the facts of each case.

36    In the present case there can be no question that the second appellant’s claim - that his failure to complete his military service might be discovered as a result of random interactions with former naval personnel who knew him - clearly emerged from the materials before the Tribunal. That must be so when the Tribunal recognised that claim and purported to expressly address it.

37    However, the Tribunal having recognised that this claim had been made, failed to fulfil its statutory task to closely consider it. That failure can be seen in the following parts of its reasoning:

(a)    first, the Tribunal made no finding about any risk that the second appellant had procured a false certificate of completion of military service by bribing a public official might be discovered through random interactions with former naval personnel that knew him. It only made a finding (at [43]) that the false certificate was unlikely to be discovered on re-entry into Iran. It also made no finding about any risk that the second appellant’s failure to complete his military service might be discovered through random interactions with former naval personnel that knew him. It merely referred (at [44]) to the second appellant’s claim in that regard;

(b)    second, the Tribunal’s reasons show that it did not recognise that if, through the second appellant’s interactions with former naval personnel that knew him, it came to the attention of the Iranian authorities that he had not completed his military service, then there was a related risk that his procuring a false certificate through bribery might also be discovered. If the second appellant was identified as a deserter through interactions with former naval personnel, yet Navy personnel records showed that he had completed his military service, there was obviously a risk that the Iranian authorities might decide to undertake further investigations; and

(c)    third, the Tribunal only considered (at (44]) that, if the second appellant’s failure to complete his military service was discovered other than through Navy personnel records, the second appellant would only face a fine. It limited itself to a consideration of the likely penalty for a person that defaults on completion of their military service and did not turn to consider what punishment the second appellant might face for procuring a false certificate through bribery of a public official.

In our view the Tribunal erred by failing to undertake a close consideration of this integer of the second appellant’s claims.

38    We consider this error to be ‘material’ in the sense that there is a realistic possibility that the Tribunal might have reached a different decision if not for the error: see Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [30] per Kiefel CJ, Gageler and Keane JJ. Had the Tribunal given proper consideration to the claim it may well have found that the risk of the false certificate and bribery being discovered was mere speculation and conjecture and that the chance that the second appellant would face serious or significant harm as a result was remote. However, the fact remains (as the Tribunal accepted), that the second appellant left Iran having committed a very serious act, namely bribing an official to procure a false certificate of completion of military service. Having regard to the gravity of the second appellant’s conduct, there is a realistic possibility that, had it given the issue proper consideration, the Tribunal would have concluded that he will face a chance of serious or significant harm if returned to Iran.

39    We respectfully consider the Tribunal failed to complete its statutory task, and that the learned primary judge erred in failing to so find. Ground one of the appeal is made out.

Ground Two

40    The appellants accepted that the threshold for a finding of legal unreasonableness is high, and that for this ground to be made out they must establish that no rational decision-maker could have reached the decision, or made a finding on the way to the decision, on the same material: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. The appellants accepted that the inquiry as to legal unreasonableness is fact intensive and that fixed formulae and reliance on analogous cases is unlikely to be helpful. As the Full Court said in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at 172 [65]:

… the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

41    The appellants however submitted that the Tribunal’s reasons were illogical or irrational because:

(a)    no rational or logical basis exists for the finding, implicit in [44], that if it was discovered that the second appellant failed to complete his military service (as a result of interactions with former naval personnel that knew him) he would not also be identified as having obtained a false certificate of completion of such service; and

(b)    the Tribunal’s reasoning (at [43]) was illogical or irrational because it limited its consideration of the risk of discovery that the second appellant had paid a bribe to obtain a false certificate, to the time at which he re-entered Iran. The appellant submitted that there were obviously other ways that the second appellant’s procuration of the false certificate may have been discovered if returned to Iran.

42    The appellants also submitted that the Tribunal’s finding (at [43]) that it was unlikely that the false certificate would be discovered because the Navy personnel records had also been altered was irrational, because it was made without any basis in the evidence. We initially saw some force in this submission because, on one view, the finding of the Tribunal that it was unlikely that the false certificate would have been obtained without the Navy personnel records also having been amended appeared to have been made without a skerrick of evidence to support it: Cf Hands v Minister for Immigration and Border Protection (2018) 362 ALR 423. The only material before the Tribunal on that issue was the submissions of the appellants’ migration agent, in which the agent purported to set out the general practices of Iranian forgers. Those submissions related to Iranian forgers in general rather than to whoever forged the second appellant’s certificate, and it is difficult to see how it was appropriate for the Tribunal to give any weight to such submissions.

43    The particulars to the grounds of appeal do not, however, allege a “no evidence” ground. At the Court’s invitation the appellants sought leave to amend the grounds of appeal so as to raise such a ground, but we refused to grant leave to do. We refused leave essentially because this “no evidence” ground had initially been alleged in the application to the Federal Circuit Court and the appellants had sought and been granted leave to abandon it. In such circumstances they should not be permitted to reinstate that ground.

44    The Minister also submitted that a discovery by the Iranian authorities of the fact that the second appellant had failed to complete his military service did not necessarily bear on the risk of discovery that he had procured a false certificate by paying a bribe. He contended that Tribunal’s reasoning accordingly was not illogical.

Consideration

45    In our view the Tribunal’s reasoning and decision was not so devoid of logical reasoning that no rational decision-maker could have so reasoned or concluded. Relevantly, the Tribunal considered two possible ways in which the second appellant might face a risk of serious or significant harm if returned to Iran:

(a)    first, it considered (at [43]) the possibility that the false certificate might be discovered by Iranian authorities upon the second appellant being interviewed and his papers being checked on re-entry to Iran. That possibility was logical. Based on the submissions made by the second appellant’s migration agent the Tribunal inferred that his Navy personnel records would also have been altered to accord with the false certificate thus eliminating the practical risk of his crime being exposed. That inference, whilst perhaps lacking a sufficient evidentiary basis, was nonetheless not irrational; and

(b)    second, the Tribunal then considered (at [44]) the possibility that the false certificate might be discovered as a result of the second appellant’s random interactions with former naval personnel that knew him. The Tribunal addressed that risk by observing that the penalty for Iranians who defaulted on their military service was the payment of a fine. As we have said, that reasoning revealed the Tribunal’s incomplete consideration of the risk but it was not irrational or illogical in our view.

46    Ground two of the appeal is not made out.

Conclusion

47    We have allowed the appeal with costs.

Associate:

Dated:    28 November 2019