FEDERAL COURT OF AUSTRALIA

CRU18 v Minister for Home Affairs [2020] FCAFC 129

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of Iran. He is of Kurdish ethnicity and hails from the Badreh district of Ilam province, in Iran’s west. In May of 2013, he flew from Iran to Indonesia using a recently-acquired Iranian passport. He arrived in Jakarta and then flew to the port city of Makassar. There, he boarded a “very small fishing boat” bound for Australia, having paid “people smugglers” US$6,000.00 to that end. He surrendered his Iranian passport to one such smuggler on the night prior to his departure from Indonesia. He arrived in Australia on 4 June 2013 as an “unauthorised maritime arrival” (within the meaning attributed to that phrase by the Migration Act 1958 (Cth)—hereafter, the “Act”).

2    In February 2017, he made an application under the Act for a Temporary Protection Class XD (Subclass 785) visa (hereafter, the “Visa Application”). That application was dismissed by a delegate of the first respondent (hereafter, the “Minister”) on 9 March 2018. That decision (hereafter, the “Delegate’s Decision”) was then automatically referred to the second respondent (hereafter, the “IAA”) for review under pt 7AA of the Act. On 8 May 2018, the IAA affirmed the Delegate’s Decision to dismiss the appellant’s Visa Application and provided written reasons for doing so (that affirmation is referred to hereafter as the “IAA Decision”).

3    By an amended originating application dated 24 January 2019, the appellant sought judicial review of the IAA Decision in the Federal Circuit Court of Australia (hereafter, the “FCCA”). He contended that the IAA Decision was the product of jurisdictional error and ought to be set aside via a grant of prerogative relief. That application (hereafter, the “Judicial Review Application”) was dismissed with costs on 30 August 2019: CRU18 v Minister for Home Affairs & Anor [2019] FCCA 2394 (Judge Mercuri). It is from that judgment (hereafter, the “Primary Judgment”) that the appellant now appeals.

4    The grounds of appeal are considered in detail below. By way of summary, the appellant submits that the FCCA erred by not accepting that the IAA Decision was attended by jurisdictional error. For the reasons that follow, we do not agree. The appeal will be dismissed with costs.

The Visa Application

5    The appellant’s Visa Application was premised upon his Kurdish ethnicity and what he claimed was his family’s history of political activism broadly aligned with the service of Kurdish interests. He submitted that, if he returned to Iran, he would be persecuted on account of actual or imputed political opinions and/or his Kurdish ethnicity, or would otherwise be subjected to significant harm.

6    In support of those primary contentions, the appellant claimed that he and members of his family had been the victims of official discrimination on account of their ethnicity and political profile in Iran. That discriminatory conduct was said to have manifested in the denial of education and employment opportunities, the confiscation of family land, arbitrary imprisonment, torture and physical abuse, and the killing of the appellant’s father.

7    Many of the appellant’s claims focused upon his father’s history as an agitator for Kurdish rights or freedoms. Of present significance is the content of a letter dated 20 February 2017, under which the appellant’s migration agent submitted his Visa Application. In support of that application, it was there stated (errors original):

The [appellant] left his country fleeing persecution by Iranian authorities due to his father, who was a Kurdish freedom fighter and also because of his Kurdish ethnicity.

…

[The appellant’s] father belonged to Kurdish freedom fighters, who supported the leader of 1979 Iran revolution (Ayatullah Khomeini) to gain power in hope of a better opportunity and more freedom for Kurdish ethnic minorities in Iran. However, when the revolution succeeded relation between Kurds and central government deteriorated in a short time… Due to [the appellant]’s father involvement and participation in fight against the Iran authority, his family were doomed and the authorities took every opportunity to punish them…

Statutory framework

8    The appellant’s Visa Application proceeded upon his assertion that he satisfied one or both of the criteria for which ss 36(2)(a) and (aa) of the Act provide. Those provisions relevantly provide as follows:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

…

(b)    at least one of the criteria in subsection (2).

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

…

(2A)    A non-citizen will suffer significant harm if:

   (a)    the non-citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non-citizen; or

   (c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

9    “[R]efugee” is defined by s 5H of the Act, which provides:

5H Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

10    Section 5J of the Act defines the circumstances in which a person should be understood to have a “well-founded fear of persecution”. Relevantly, it provides:

5J Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)    the persecution must involve serious harm to the person; and

   (c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)    a threat to the person’s life or liberty;

   (b)    significant physical harassment of the person;

   (c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

…

11    There is no dispute that the appellant arrived in Australia as an “unauthorised maritime arrival” (within the meaning attributed to that phrase by s 5AA of the Act). Part 7AA of the Act prescribes the process for review of the Delegate’s Decision by the IAA. It is not controversial that the FCCA had jurisdiction to hear the Judicial Review Application, nor that this court has jurisdiction to hear the present appeal from the Primary Judgment.

The IAA Decision

12    The IAA did not accept that the appellant, if returned to Iran, would be at real risk of relevant persecution on account of his ethnicity, or his actual or imputed political opinions; nor that he would otherwise be at real risk of subjection to significant harm. It is convenient at this juncture to trace some of the relevant observations that the IAA made en route to those conclusions.

13    Under the heading, “Claims related to fear of persecution for reasons of the [appellant]’s Kurdish ethnicity”, the IAA considered the submissions that the appellant advanced on that front. It accepted (IAA Decision, [16]) that he “…has suffered discrimination for reasons of his Kurdish ethnicity” but (IAA Decision, [17]; emphasis original):

…[o]verall, [was] not satisfied that there is a real chance the [appellant] will suffer serious harm solely for reasons of his Kurdish ethnicity if he is returned to Iran now or in the foreseeable future.

14    Later (and on that same front), the IAA observed (IAA Decision, [18]-[19]; emphasis original):

…whilst I accept the [appellant] may suffer some discrimination when seeking employment, I am not satisfied that for reasons of persecution on the basis of his ethnicity, that there is a real chance that the [appellant] will be denied the capacity to earn a livelihood of any kind, such that it threatens his capacity to subsist. I am also not satisfied that for reasons of persecution on the basis of his ethnicity, there is a real chance that the [appellant] will suffer significant economic hardship that threatens his capacity to subsist.

Overall, I am not satisfied, that for reasons of persecution solely on the basis of his ethnicity, that there is a real chance that the [appellant] will suffer serious harm, having regard to the extensive examples of serious harm in s.5J(5) of the Act, if he is returned to Iran now or in the foreseeable future.

15    Under the heading “Family history”, the IAA considered whether the appellant might, by reason of his family’s historical conduct, be credited with opinions that might inspire relevant persecution or subjection to harm in the event of his return to Iran. The IAA recounted the appellant’s submissions about his family’s post-revolution resistance of the Iranian regime and its activism in the promotion of Kurdish rights. In particular, it considered the appellant’s contention that his father had been murdered by Iranian authorities during an otherwise routine hospital visit. It made the following observations on that score (IAA Decision, [21]; emphasis added):

I do not consider the [appellant]’s evidence plausible that his father was killed by a lethal injection by the authorities when attending a small hospital for chronic headaches. The [appellant] has not provided any details at all to support his claim that his father was targeted by authorities more than 30 years after the Revolution. At his protection interview he claimed that his father was a Kurdish Freedom Fighter although he had never made this claim before. He did not give any specific examples of his father’s activities as a Kurdish Freedom Fighter.

16    As will become apparent later, the emphasised part of the above extract assumes some significance in the present appeal.

17    The IAA went on to reject what the appellant submitted was the significance of his family’s history (IAA Decision, [23]-[24]):

Apart from stating that the family were constantly monitored and harassed over land issues the [appellant] has not provided any detail about his father or any other member of the family being involved in Kurdish political activism…

Having regard to the [appellant]’s evidence, I am not satisfied that either he or his family had any adverse profile with Iranian authorities as Kurdish political or anti-regime activists in Iran.

18    The IAA next considered submissions that the appellant advanced about the difficulties that he had experienced in Iran in relation to a period of military service. The appellant claimed to have been the victim of abuse during his military service, and that he had been harassed and threatened by people associated with the perpetrators of that abuse after his discharge. In particular, he claimed that he had been imprisoned “at least 10 times prior to major events like elections”. The IAA considered (IAA Decision, [33]):

…the [appellant]’s statement that he was imprisoned at least 10 times prior to major events like elections, including for a week just prior to the 2009 election[,] to be fabrication as he has provided no details at all about such a significant [number] of arrests or imprisonment.

19    After considering other claims that the appellant had advanced (none of which assume any present relevance), the IAA stated its conclusions (IAA Decision, [49]-[50]):

Having regard to all the above evidence and findings, I am not satisfied that the [appellant] was identified as having an adverse political opinion or that he had an adverse political profile prior to his departure from Iran in May 2013. I am satisfied there is no real chance that the [appellant] will suffer serious harm (having regard to the extensive examples of serious harm in s.5J(5) of the Act), for reasons of his actual or imputed political opinion if he is returned to Iran now or in the reasonably foreseeable future.

I am also satisfied there is no real chance that the [appellant] will suffer serious harm for reasons of his actual or imputed political opinion together with his Kurdish ethnicity when considered cumulatively if he is returned to Iran now or in the reasonably foreseeable future.

20    At [60], the IAA addressed a submission that the appellant advanced as to his employment prospects in Iran:

I accept that the [appellant] is a Shia Kurd and that [he] has experienced discrimination in accessing higher education and reliable employment in the past and that he may experience low-level societal discrimination if he returns to Iran. However, I am not satisfied that any discrimination he may experience for reasons of his Kurdish ethnicity amounts to serious harm. I accept that he may have some difficulty finding reliable and/or well-paid work, but this is for reasons related to his lack of skills and qualifications, rather than systemic and discriminatory persecution for reasons of his race, nationality, religion, political opinion or membership of a particular social group.

21    The IAA went on to conclude that the appellant did not satisfy either of the protection criteria stipulated in s 36(2)(a) and (aa) of the Act. Of present relevance are the observations that it made at [61] and [64] of its decision:

I am not satisfied that the [appellant] comes from a family which has an adverse political profile as Kurdish activists. I accept the [appellant] was seriously harmed during the short period of his military service in 2004 and that he was then discharged with an exemption on mental health grounds. I am not satisfied that he was pursued, harassed, threatened or beaten by any person or persons as a result of his experiences during his military service. I am not satisfied that he was ever accused, arrested, charged or brought before the court of being anti-Iranian regime, insulting the Supreme Leader or any other offence. I am not satisfied that the [appellant] was involved in any political protests in Iran prior to his departure other than protesting about appropriation of family land about two years prior to his departure, at which time he was detained for a day but not arrested or charged with any offence. I am not satisfied that the [appellant] had any adverse political profile prior to his departure. There is no information before me that the [appellant] has undertaken any activities in Australia which would attract the adverse attention of the Iranian authorities. I am not satisfied that there is any real chance the [appellant] will suffer serious harm for reasons of his actual or imputed political opinion.

…

Having regard to all the [appellant]’s specific circumstances in the context of the country information about the current situation in Iran, I am not satisfied that there is a real chance of the [appellant] being seriously harmed by the Iranian authorities or by any other group or person. I am not satisfied that any of the treatment I accept he may experience will amount to serious harm when considered cumulatively.

The Primary Judgment and the present appeal

22    Before the FCCA, the appellant advanced three grounds upon which he contended that the IAA Decision was the product of jurisdictional error (and, as such, amenable to a grant of prerogative relief). Only the first of them is relevant to the present appeal (references omitted, errors original):

1.     The IAA failed to consider an integer of his claim, or constructively failed to exercise its jurisdiction by failing to have regard to substantive and consequential material before it.

Particulars

1.    Paragraph [21] of the IAA Decision states that during his protection visa interview the [appellant] made claims that his father was a Kurdish Freedom Fighter and that the [appellant] “had never made this claim before”. That is factually incorrect. The claim was advanced in the [appellant]’s representatives' letter of 20 February 2017.

2.    At paragraph [24], the IAA concluded that having “regard to the [appellant]’s evidence” it was “not satisfied that either he or his family had any adverse profile with Iranian authorities as Kurdish political or anti-regime activists in Iran”.

3.    The statement in paragraph [24] that the IAA had considered “the [appellant]’s evidence” must be read as encompassing the alleged failure by the [appellant] to raise the question of his father’s involvement in the Kurdish freedom fighters prior to his protection interview.

4.    The ultimate conclusion that the IAA was not satisfied that the [appellant] and his family had any adverse profile is affected by the IAA’s failure to appreciate that the [appellant] had advanced the claim that his father was a Kurdish freedom fighter on the first occasion on which he was invited to express his claims in detail.

5.    By failing to appreciate that the [appellant] had raised this claim at an early time, the IAA failed to consider an integer of the [appellant]’s claim and, or in the alternative, constructively failed to exercise its jurisdiction by failing to have regard to substantial and consequential evidence. In doing so, the IAA erred.

23    The FCCA did not accept that the IAA had erred in the manner alleged. In broad terms, the primary judge rejected the ground set out above because she considered that the IAA reached its decision on the basis of various findings which did not depend on and were not influenced by its incorrect statement that the appellant had never made the relevant claim before, and because the finding (if that is what it was) in which that error was made could not be said to have been, or to have led to, any wider finding that the appellant was dishonest or otherwise not to be believed.

24    It is not necessary to recite the FCCA’s reasons for dismissing the application in any further detail. That is so for two reasons. First, the grounds that the appellant advances before this court do not marry perfectly (and, in one case, at all) with what he advanced before the FCCA. Second, to the extent that the grounds do overlap, these reasons provide a sufficient indication of what the appellant's arguments in the FCCA were and why they should not be accepted.

25    By his amended notice of appeal in this court, the appellant presses two grounds by which he attributes error to the FCCA and/or jurisdictional error to the IAA:

1.    The Federal Circuit Court erred by failing to find that the second respondent (Authority) fell into jurisdictional error by making a material error of fact which affected the exercise of the Authority’s jurisdiction.

Particulars

A.    The Authority found at [21] that the appellant had not before the protection interview made the claim that his father was a Kurdish freedom fighter.

B.    The finding of the Authority was incorrect: see at [13] of the primary judgment.

C.    The Authority’s erroneous finding tainted the Authority’s conclusion to not accept the appellant’s claim that his family had a political profile in Iran: at [24].

D.    In the premises, the error of the Authority was jurisdictional.

2.    The Federal Circuit Court erred by failing to find that the Authority fell into jurisdictional error by misconstruing and misapplying ss 5J(1)(a) and 5J(4)(a) of the Migration Act 1958 (Cth) (Act).

Particulars

A.    The Authority made a positive finding that the appellant had experienced discrimination, including discrimination accessing higher education, for reasons of his Kurdish ethnicity: at [16], [19] and [60]; see also at [45] of the primary judgment.

B.    The Authority also accepted the appellant’s claim that, if returned to Iran, he may have some difficulty finding reliable and well-paid work: at [18] and [60].

…

D.    The Authority…concluded that the appellant’s “difficulty” finding work would be for reasons “related to his lack of skills and qualifications, rather than systemic and discriminatory persecution”: at [60].

…

F.    …In reaching the conclusion described in particular D above, the Authority misconstrued and misapplied ss 5J(1)(a) and 5J(4)(a) of the Act in that it failed to consider whether the essential and significant reason for the appellant’s predicament of being persecuted was his Kurdish ethnicity.

26    The substance of the appellant’s second appeal ground was not advanced before the FCCA. He requires leave to agitate it on appeal.

Ground one: material error of fact

27    The appellant’s first appeal ground centres upon the IAA’s observation that the appellant first raised his father’s association with Kurdish freedom fighters when interviewed by a delegate of the Minister in relation to his Visa Application (IAA Decision, [21]; above, [15]). That observation—as the Minister concedes and the FCCA accepted (Primary Judgment, [13])—was factually incorrect. The appellant’s father’s association with Kurdish freedom fighters was, in fact, first raised on 20 February 2017, when the appellant’s Visa Application was submitted (see above, [7]).

28    The appellant submits that that error of fact (hereafter the “Timing Error”) “…was sufficiently important or material that it affected the [IAA]’s exercise of power”. That is so, he contends, because “…the error related to a finding which went to the credibility of the [a]ppellant [and] was more apt to infect the [IAA]’s perception of the whole of the [a]ppellant’s claims”.

29    An erroneous finding of fact will typically not suffice, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, [9] (Heerey, Nicholson and Selway JJ). In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ), this court observed (at 16 [53]) that:

…mere factual error by [a decision maker] will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision…

30    In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):

A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

31    A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).

32    The appellant here relied upon the observations of Lee J in CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 (hereafter, “CKC16”). In that case, the Administrative Appeals Tribunal, en route to dismissing a protection visa application, committed a series of factual errors similar to the one that presents in this appeal. The first concerned a claim that the appellant’s father had held a position on the board of a parish of a Catholic Church in his native Vietnam. The second concerned a political statement that the appellant claimed to have made prior to leaving Vietnam. The tribunal wrongly observed that neither claim had been raised at an early stage of the appellant’s visa application process. It rejected both claims, in each case partly on the basis of its incorrect assessment that they had been advanced at late stages. Lee J accepted that those conclusions bespoke jurisdictional error on the part of the tribunal. His Honour observed (at [34]) that:

…the erroneous findings here, that the appellant had recently invented his evidence about his father’s role, or about the making of the relevant political statement, were not peripheral to assessing the creditworthiness of the appellant. No other fair reading of the reasons seems to me to be available. It is understandable that the Tribunal member would have serious concerns about the appellant’s overall credibility, given the misapprehension held as to the Religious Claims Error and the Political Statement Error. As I noted in [SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562] at [45]:

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

33    The IAA’s factual error in the present case—that the appellant had not, prior to his interview with the Minister’s delegate, suggested that his father was associated with Kurdish freedom fighters—is said to have been significant because it should be understood to have affected the IAA’s assessment of the appellant’s credibility. Respectfully, it is not apparent that that is so. Unlike the circumstances that prevailed in CKC16, the IAA did not, either in terms or by inference, reject the appellant’s claim about his father’s association with Kurdish freedom fighters. Its ultimate finding—that the appellant did not have a political profile sufficient to place him at real risk of subjection to relevant persecution or harm if returned to Iran—was the product of other considerations, namely that:

(1)    it did not consider plausible the suggestion that the appellant’s father had been killed by means of a lethal injection whilst attending a small hospital for relatively routine reasons;

(2)    the appellant had not given any specific examples of his father’s activities as a Kurdish freedom fighter;

(3)    the appellant did not provide any detail about his family’s involvement in pro-Kurdish political activism;

(4)    country information suggested that Kurds based in Ilam normally face less challenges than other Kurds when interacting with the Iranian government; and

(5)    the appellant did not claim that he was involved in the Iranian “Green Movement”, or in any Kurdish cultural or political movements or protests.

34    The Timing Error did not apparently factor in any way into the IAA’s conclusion about the appellant’s political profile. The burden of establishing that the Timing Error was material to the IAA Decision was the appellant’s to discharge: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [46] (Bell, Gageler and Keane JJ), [93] (Nettle and Gordon JJ). Even assuming, momentarily, that the IAA should be understood not to have properly considered what the appellant had advanced (and, thereby, to have failed to take account of a relevant consideration), or that the Timing Error was the product of relevant irrationality, illogicality or unreasonableness, it is not apparent (which is to say that the appellant has not established) that that reasoning was material to the IAA Decision.

35    In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J considered the vulnerability of administrative decision making to correction on account of jurisdictional error constituted by “illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion”. His Honour observed (at 221 [55]-[56]):

Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

36    Those observations have been the subject of repeated full court endorsement: CQG15 v Minister for Immigration (2016) 253 FCR 496, 517 [60] (McKerracher, Griffiths and Rangiah JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, 89 [35] (Charlesworth J, with whom Flick and Perry JJ agreed); BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109, [45] (Tracey, Farrell and Charlesworth JJ); DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, 265-266 [19] (Tracey, Murphy and Kerr JJ); Singh v Minister for Home Affairs [2020] FCAFC 7, [92] (R Derrington J, with whom Logan and Reeves JJ agreed).

37    Here, the IAA’s ultimate conclusion—that the appellant is not a person whose political profile might result in his subjection to relevant persecution or harm were he to return to Iran—was the product of numerous intermediate observations (see above, [33]). The Timing Error was not material to—and certainly was not crucial to—that ultimate conclusion. There is no realistic basis upon which to consider that the IAA Decision might have been different had the IAA correctly appreciated the earlier point in time at which the appellant had first raised his father’s association with Kurdish freedom fighters.

38    Furthermore, the Timing Error cannot fairly be thought to have been central or material to any other of the IAA’s findings, including those that concerned or turned upon issues of credit. In particular, the IAA’s finding that the appellant had fabricated his claim about having been repeatedly imprisoned prior to major events like elections (above, [18])—which the appellant suggested was “plausibly informed” by the IAA’s impression of his credit—cannot be materially attributed to the Timing Error. The IAA did not make any general findings about the appellant’s credit (at all, let alone in consequence of the Timing Error). Its findings—including with respect to the appellant’s claim about having been repeatedly imprisoned—were a function of the evidence that the appellant advanced (or, more accurately, did not advance). Again, there are no findings in the IAA Decision that might realistically have been decided differently had the IAA correctly appreciated when it was that the appellant first raised the issue of his father’s association with Kurdish freedom fighters.

39    Whatever criticisms might be levelled in respect of the Timing Error—including, perhaps, that it was a conclusion that lacked a rational or logical foundation, or (perhaps less likely) that it betrays a failure on the IAA’s part to properly understand and consider the submission that the appellant advanced—it nonetheless falls short of jurisdictional error. The appellant has not established that it was central to, or had any material impact on, the IAA Decision. The first appeal ground is not made out.

Ground two: misconstruction of section 5J of the Act

40    By his second appeal ground—or, more accurately, what is proposed as his second appeal ground—the appellant charges the IAA with having misunderstood the circumstances in which the Act recognises that a person might possess a well-founded fear of persecution. The appellant contends that a person may possess a well-founded fear of persecution if he or she fears that relevant hardship—in this case, the denial of employment opportunities—will be visited not simply as a direct consequence of the person’s race, religion, nationality, membership of a particular social group or political opinion, but as the consequence of conditions or circumstances that more acutely affect people of that race, religion, nationality, social group or political opinion. Because he was denied various educational opportunities on account of his Kurdish ethnicity, and because he will find it difficult to secure reliable or well-paid work in Iran because of his lack of educational qualifications (see IAA Decision, [60]; above, [20]), it should follow, he says, that he is at risk of relevant persecution because of his ethnicity, even if those who might refuse him employment in Iran are not, themselves, actuated by that circumstance. Insofar as the IAA reasoned that relevant persecution required that adverse conduct be visited upon the appellant directly because of his ethnicity, it should, he submits, be seen to have misunderstood and misapplied the statutory definitions underpinning its task (and, thereby, to have committed jurisdictional error).

41    The appellant’s second appeal ground was not advanced before the FCCA. He requires the leave of the court to agitate it now. In SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 (Besanko, Gleeson and Burley JJ), the court considered the circumstances in which an appellant might be granted leave to argue a ground on appeal that was not the subject of consideration at first instance. The court observed:

28    The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:

[46] … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47] In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

The statement of principle in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[90] is to similar effect.

29    In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, the Full Court addressed an application for leave to raise on appeal matters not put to the Federal Magistrates Court of Australia, where the appellant had been unrepresented and put on no submissions at all. The Full Court said (at [66] to [68]):

[66] In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time.

[67] However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance.

[68] All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

42    During the hearing of the appeal, the question of whether or not the appellant should have leave to press his second appeal ground was left open. The appellant was invited to—and did—make submissions as though leave was granted and the court undertook to address the issue in its reasons.

43    We are not inclined to grant the appellant leave to agitate his second appeal ground. There are two reasons for that. First, the appellant’s explanation for having not pressed the point before the FCCA was not persuasive. Before the primary judge, the appellant submitted that the IAA’s conclusion that he would not be subjected to relevant persecution on account of his ethnicity or political opinion was illogical (in the sense identified by authorities such as SZMDS). That submission was rejected and it was, so the appellant contended, “…with the benefit of the primary judge’s reasons and further consideration that [the] ground [was] reframed.” Respectfully, that is not a compelling basis for permitting the agitation on appeal of a point not pressed at trial.

44    Second and more significantly—and for reasons that we need only briefly explore—the proposed appeal ground lacks merit. In order to establish that he possessed a well-founded fear of persecution, the appellant needed to establish that he was at risk of being subjected to “serious harm”: the Act, s 5J(4)(b). On a fair reading of its decision, the IAA concluded that the discriminatory treatment to which the appellant might be subjected if returned to Iran—including in the form of denied employment opportunities—would fall short of that threshold (IAA Decision, [18], [19], [60], [64]; above, [14], [20], [21]).

45    Absent a real prospect of subjection to serious harm, it was not possible for the IAA to conclude that the appellant possessed a well-founded fear of persecution, no matter how it construed the phrase, “…for reasons of race, religion, nationality, [etc]”. The way in which the IAA addressed the nexus between the adverse treatment that the appellant claimed to fear and the reason or reasons by which he said it would be animated had no bearing upon its conclusion that the appellant did not satisfy the criteria for which s 36(2)(a) of the Act provides. Even assuming that the IAA was wrong to approach the question of nexus in the way that it did, any such error was immaterial to the end result and, hence, would not qualify as jurisdictional in nature.

46    In any event, we are not convinced that the IAA’s approach to the nexus question was wrong. Although there are authorities that appear to lend some support to the submission that the appellant advanced in that regard—in particular, AJZ17 v Minister for Home Affairs [2019] FCA 1485, [55] (Moshinsky J) and NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1554, [50] (Madgwick J)—the weight of authority very strongly tends the other way: Applicant A v Minister for Immigration (1997) 190 CLR 225, 242 (Dawson J), 257 (McHugh J), 284 (Gummow J); Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293, 304 [33]-[34] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Ram v Minister for Immigration (1995) 57 FCR 565, 568 (Burchett J, with whom O’Loughlin and Nicholson JJ agreed); Perampalam v Minister for Immigration (1999) 84 FCR 274, 282-283 [16] (Burchett and Lee JJ), [30]-[31] (Moore J); Minister for Immigration v Applicant Z (2001) 116 FCR 36, 43-44 [27] (Keifel J, with whom Hely J agreed; Sackville J agreeing in the result); Minister for Immigration v VFAY [2003] FCAFC 191, [49]-[50] (French, Sackville and Hely JJ); SZTEQ v Minister for Immigration (2015) 229 FCR 497, 516 [72] (Robertson, Griffiths and Mortimer JJ).

47    While the authorities that point against the appellant’s contention were decided before the insertion of s 5J into the Act, s 5J was inserted as part of a suite of provisions which were designed to codify the terms and concepts derived from the Refugees Convention, including the term “persecution” and the concept of nexus arising from the words “for reasons of”. In construing s 5J of the Act, any reconsideration of the approach taken by these earlier authorities to the meaning of “persecution” and the concept of nexus should only take place in a case where the issue would be determinative. This is not such a case given the IAA’s findings concerning serious harm.

48    Although it is not necessary that we should decide the point, we would be slow to deviate from what the appellant's counsel himself described as the “orthodox” approach to the question of nexus. To “persecute” a person is not merely to subject him or her to adverse treatment. Semantically, “persecution” imports notions of intent such as punishment, harassment, and deliberate oppression. At first glance, the appellant’s contention appears to require that the language in which the statutory test is framed should be read otherwise than consistently with the ordinary meaning of its words.

49    We are not persuaded that the appellant’s second appeal ground (or proposed appeal ground) is sufficiently arguable to warrant the grant of leave that it requires.

Conclusion

50    The IAA Decision was not the product of jurisdictional error as the appellant alleges. The primary judge’s conclusion to that effect was correct. There is no error inherent within the Primary Judgment—nor any other reason—that warrants its being set aside. The appeal will be dismissed with the usual order as to costs.

Associate:

Dated:    31 July 2020