Federal Court of Australia

DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant pay the first respondent's costs to be assessed on a lump sum basis by a registrar of this Court if not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant pay the first respondent's costs to be assessed on a lump sum basis by a registrar of this Court if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH AND JACKSON JJ:

1    These appeals raise an issue of construction common to both matters, and were heard concurrently. The issue is the construction of s 36(2)(aa) of the Migration Act 1958 (Cth) which relates to protection visas, in the particular context of prospective voluntary or involuntary removal from Australia to a receiving country.

2    It should be noted at the outset that the appeals concern the criteria for protection visas prior to amendments introduced in 2014 which introduced references to the defined concepts of 'refugee' and 'well-founded fear of persecution' that are now found in s 5H and s 5J of the Migration Act. The parties agreed that it was not necessary to consider the effect of those amendments for the purpose of these appeals. However, we briefly consider s 36(2)(a) in its pre-2014 form when considering DFO19's appeal. The wording of s 36(2)(aa), which was introduced with effect from March 2012, has not been relevantly amended and is central to both appeals.

3    Section 36 at the time relevantly provided:

Protection visas

(1)    There is a class of visas to be known as protection visas.

(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 under the Refugees Convention as amended by the Refugees Protocol; 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; or

(b)    …

4    The issue will be developed below, but in short the question to be addressed is this: what is the nature of the task that must be undertaken by the Minister (or other decision maker as applicable) in circumstances where a visa applicant asserts that they will not return voluntarily to the receiving country and where that country refuses to accept involuntary returnees?

5    By way of context, both appellants (and we will refer to them by their designated pseudonyms of DFO19 and APM19) are Iranian citizens who arrived in Australia in 2013 and 2012 respectively as irregular maritime arrivals. They claim to fear persecution in Iran if they are returned as failed asylum seekers. The country information at the time of the visa refusal decisions was to the effect that the Iranian government would not accept involuntary returnees who had left Iran prior to 19 March 2018. Both DFO19 and APM19 submitted that they would not or could not return to Iran voluntarily.

6    For convenience we will deal with DFO19's appeal first, following the course undertaken during the hearing. However the various submissions of all counsel at the hearing addressed matters raised by both DFO19 and APM19, so in the course of dealing with DFO19's appeal we will also consider matters raised by APM19.

DFO19'S APPEAL

Nature of protection claims

7    In his application for a protection visa made in 2012, DFO19 claimed that he feared being returned to Iran because he would be persecuted on religious grounds as an apostate. Supporting documentation indicated he had been baptised as a Christian in Australia in November 2012.

8    DFO19 was assisted with the visa application process by a migration agent. He participated in an interview with the Department and after that interview the agent provided written submissions that relevantly referred to country information about Iran. The submissions were collected under the headings 'Freedom of Religion and Apostasy', 'Christians in Iran', 'Human rights Violations in Iran', 'Arbitrary arrest and detention', 'Detention centres Iran', 'Torture', 'Prison conditions' and 'Death penalty'.

9    On 14 March 2014 DFO19 was informed by the Department that his visa application had been unsuccessful because he did not satisfy s 36(2) of the Migration Act. A decision record was provided.

10    DFO19 sought review of the visa refusal decision by the Refugee Review Tribunal (RRT), which affirmed the decision. A judicial review application to the (then) Federal Circuit Court was successful, and the visa application was remitted to the Administrative Appeals Tribunal for reconsideration.

11    The Tribunal conducted a hearing at which DFO19 had legal representation. Written submissions and evidence were also provided on his behalf. The Tribunal affirmed the visa refusal decision.

12    A judicial review application was brought in the Federal Circuit Court, the main contention being that the Tribunal had failed to address a claim that as an engineer DFO19 would suffer degrading treatment if forced to work in a more menial job because of his reluctance to adhere to Islamic religious observances, a claim that the primary judge held had not been raised before the Tribunal. The judicial review application was dismissed.

Ground of appeal

13    DFO19 was granted leave by the Court to rely on a single and new claim, not argued before the primary judge. It follows that there is no need to address the primary judge's reasons in any detail.

14    The sole ground of appeal that is pursued is that the Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error by failing to consider whether DFO19 would face a real chance of serious harm or a real risk of significant harm if he were to return to Iran involuntarily, a hypothetical premise that it is said the Tribunal was obliged to consider regardless of whether an involuntary return might be achieved. The following summary of the Tribunal's reasons is to be read in the context of this sole ground of appeal.

The Tribunal's reasons

15    Those parts of the Tribunal's reasons of particular relevance are the following:

Considerations

54.    I now turn my mind to considering the circumstances the applicant faces returning to Iran as a failed asylum seeker, a Christian convert on paper, someone who has participated in Christian activities, and his employment prospects, among other claims.

Harm arising from being a failed asylum seeker

55.    The applicant stated that if he had to return to Iran he would not do so voluntarily.

56.    The Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily. On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

57.    Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, 'It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.' Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough led to a change of position, I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. For this reason, if the applicant persists in not returning voluntarily I find that he would not return and as such would not face a real chance of serious harm or a real risk of significant harm. Alternatively, despite his insistence that he would not voluntarily return, I have also considered the circumstances if he was to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including his extended period abroad.

(footnotes omitted)

16    We note that the parties agreed that before the Tribunal, the actual words stated by DFO19 and reflected in para 55 were, 'I cannot go voluntarily'.

17    The Tribunal then proceeded to consider the risks that might be faced by DFO19 on a voluntary return, concluding that:

61.    In considering the country information and the applicant's evidence through all stages of the review process I find that the country information is explicit in the authorities paying little attention to a failed asylum seeker and find that implicit in the country information is that this includes people who are abroad for an extended period, based upon the words, 'many will seek to live and work overseas'. Was he to return voluntarily he will not be questioned at the airport, he will not be asked whether he has converted, and the authorities would not know of his activities in Australia. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being a failed asylum seeker returning to Iran.

18    Country information referenced in the reasons includes a Department of Foreign Affairs report referred to as the DFAT Country Information Report: Iran, 7 June 2018, and an ABC news report from 16 March 2016.

19    It is apparent from the above extracts that the Tribunal took into account that a return for the purpose of s 36(2)(aa) might be either voluntary or involuntary, but considered that having regard to the Iranian government's practice of not accepting involuntary returnees who arrived in Australia before 19 March 2018, the Department would not return him involuntarily. The Tribunal appears to have found that no involuntary return would occur 'and as such' DFO19 would not face a real chance of serious harm or a real risk of significant harm. Considered in isolation, that could be taken to indicate that the Tribunal thought it did not need to consider any chance of harm to DFO19 on return to Iran, because that return was not in fact going to happen. But of course those findings must be considered in the context of the decision as a whole, which we will do further below.

20    Whether the treatment of involuntary return by the Tribunal at para 57 of its reasons reflects sufficient compliance with its statutory task is to be determined having regard to the construction of s 36(2)(aa).

Construction asserted by DFO19

21    Senior counsel for DFO19 submitted that the text of s 36(2)(aa) is to be understood as follows. The words 'being removed from Australia to a receiving country' establish a premise or a hypothesis for the decision maker to apply in foreseeing whether the visa applicant meets the criteria. This construction was not said to require any particular form of removal to be assumed, or to impose upon the decision maker any restriction on the factual findings that are to be made about how removal is to occur, but it is to impose an assumption that the removal occurs.

22    This construction was said to be consistent with a natural meaning of the provision. The decision maker is being directed to examine the consequences that flow from 'something', that 'something' being a removal from Australia that has occurred.

23    The argument was not premised on only involuntary removal. The text of s 36(2)(aa) does not distinguish between voluntary or involuntary removal and s 198 of the Migration Act, which addresses removal, extends to both scenarios, noting s 198(1) refers to 'removal on request'.

24    Further, the appellant submitted that voluntary and involuntary removal should not be seen as binary positions, as the circumstances of removal might vary across a spectrum depending upon the facts including the country and the consequences for an applicant who might choose to remain in Australia. There might be a range of options to be considered depending on country information or Australia's position with respect to any particular country. When faced with the option of indefinite detention in Australia, an applicant's view as to voluntary removal might change. Such matters were all open to be considered as questions of fact relevant to the individual case. However, the appellant accepted that it was possible on the construction for which he contended that in some cases the Tribunal might be asked to proceed on the basis of an absurd assumption, such as an involuntary return in circumstances where there is no realistic prospect of Australia seeking to remove a person involuntarily to a country that will not take them.

25    Further, it was submitted that the present tense language of s 36(2)(aa) requires promptness - the decision maker is concerned with a removal that happens imminently and what flows from that in the receiving country. It was said that otherwise it becomes less and less possible for a decision maker to make any sensible findings about what is necessary and foreseeable.

26    Having regard to those submissions as to the construction of s 36(2)(aa), the appellant then challenged the manner in which the Tribunal carried out its task. The appellant's case for the purpose of its ground of appeal is that the Tribunal disposed of the application on the basis that it inferred that Iran would not accept the appellant based on its historic position if his return was involuntary, and that in light of the appellant's current refusal to return voluntarily, then he could not be returned to Iran. Accordingly, it did not consider any further the feared risk of significant harm upon an assumed involuntary return. This reasoning, it is said, was in error. Despite the information as to the unlikelihood of any involuntary return, the Tribunal was obliged to assume the appellant would be removed to Iran and to assess the claim accordingly. As it failed to do so, it was said that jurisdictional error was made out.

27    Instead, the Tribunal turned to an assessment on the assumption of voluntary return although it had found that the appellant would not return voluntarily, a course said to be nonsensical in circumstances where it made no finding that it did not believe the appellant's statement that he would not be voluntarily removed. Nor, it was submitted, did the Tribunal make any finding that there was potential for the appellant to change his position about leaving, for example, to no longer endure indefinite detention.

28    For completeness, we note that DFO19 posited a second potential construction on an assumption that the Minister might rely on it, but the Minister did not do so and it is not necessary to consider it further in light of the view we have reached and the Minister's submissions.

Construction asserted by APM19

29    Senior counsel for APM19 largely adopted the submissions made by DFO19, acknowledging a considerable degree of overlap, but emphasised in particular the effect of the outcome of refusal of a protection visa in cases such as these as an aid to construction and as indicative that the position on an actual return must be considered.

30    Although APM19 submitted that 'voluntary' removal in the sense used in the discourse on the issue was not 'voluntary' in the sense of a person arranging their own travel documents and returning freely of their own accord, it was accepted that removal by request under s 198(1) may still be considered voluntary removal. It follows that APM19 also accepted that 'removal' under s 36(2)(aa) was not limited to any particular form of removal.

31    However, APM19 submitted that by operation of the regime provided by s 189, s 196 and s 198 of the Migration Act, an unsuccessful visa applicant from Iran who cannot be removed involuntarily and refuses to return voluntarily will be detained indefinitely. If at some point the position changes and it does become practicable to remove that person involuntarily to Iran, that person can be removed without, on the Minister's case, any assessment of whether there may be a real risk that the non-citizen will suffer significant harm upon such return. This prospect, it was submitted, supports a construction that requires assessment of real risk on the basis of assumed involuntary return to Iran, regardless of any finding as to the present impossibility of that course.

32    APM19 also placed weight on a passage from Buchanan J in SZUNZ v Minister for Immigration and Border Protection [2015] FCAFC 32; (2015) 230 FCR 272 at [31], where, in the context of considering s 36(2)(aa) and the position of a person with no nationality:

[31]    The broad factual inquiry there referred to, and the assessment of the factors identified as relevant to it, are not easily reconciled with any proposition that a finding that a person is an habitual resident of a country where he or she is a non-national is to be determined solely in accordance with the law of that country. Where the definition of 'receiving country' is employed for the purposes of s 36(2)(aa) of the Act, the matter to be assessed is whether the person, if returned to that country, is at real risk of significant harm, but that assessment is not aided by an inquiry about whether the law of that country recognises a category of habitual residence. The inquiry is one which engages with the practical possibility of return to a place where a person has (habitually) lived, whether or not return to that country can be accomplished.

33    It is the last sentence of that passage that is emphasised by APM19. Flick J and Wigney J agreed in the outcome of the decision but wrote separately, and did not describe the inquiry in that manner.

34    APM19 also submitted that the prospect of being granted a protection visa would be more favourable on the basis of an assumed involuntary return to Iran, and so the Tribunal by addressing voluntary return considers a case less favourable for an applicant.

35    However, it was also accepted that where the current and historical position has been that involuntary removal to a country is not impossible, there may be circumstances where there simply is no evidence available to the Tribunal about what may occur on an involuntary return. In that scenario even if the Tribunal purported to grapple with the question of assumed involuntary return, there may be no substantial grounds that would justify a belief that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. In that scenario the criteria under s 36(2)(aa) would not be met by the visa applicant.

The Minister's position

36    During the course of oral submissions it became apparent that there was really little difference between the parties as to the construction of s 36(2)(aa).

37    For a start, there was no disagreement as to the interpretation of the phrase 'being removed from Australia' in s 36(2)(aa). The Minister agreed that removal in this context extended to voluntary or involuntary removal under s 198 or potentially under other provisions.

38    It was also accepted by the Minister that the proper construction of s 36(2)(aa) requires the decision maker to proceed on the basis that there is to be a removal of some kind to the relevant country. It would not be enough, for example, for a decision maker to simply assert that there will be no removal to the country where harm is feared, to consider the visa applicant's claim no further, and to reject it because absent the posited mode of return, no protection from the feared harm is required. The need to proceed on this basis and to make prospective inquiries about what might happen if the person is removed is not novel: every protection claim is focused on the harm that might befall a person if they are removed to the country in question.

39    The Minister pointed to well-known authorities that acknowledge the prospective nature of the inquiry, the need to consider the factual circumstances attending the particular individual, and the need to exclude prospects that are remote or far-fetched.

40    For example, the High Court in DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) observed that the task to be undertaken under s 36(2)(aa) is prospective (at [13]); and the provision is 'formulated by reference to the consequences of a non-citizen's removal to a particular State' (at [18]). More particularly:

[19]    … The statutory question, namely whether a person can be removed to a particular State without suffering identified forms of harm, is framed by reference to the risk of a non-citizen suffering significant and specified harm as a necessary and foreseeable consequence of removal to a receiving country. Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country.

41    As to the correctness of an approach that excludes prospects that are remote, the Minister relied on the High Court's discussion of the meaning of 'well-founded fear' in the context of persecution, as discussed in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, and as explained further in DQU16.

42    In Guo, the High Court majority said at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ):

But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

43    As explained in DQU16, a fear of persecution will be well-founded if there is a 'real chance' that a person will suffer the feared persecution, and a 'real chance' is a prospect that is not remote or far-fetched: at [10]. As has been accepted in this Court, the 'real risk' standard that applies to complementary protection under s 36(2)(aa) is the same as the 'real chance' test applicable under s 36(2)(a): for example, Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [245]-[246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).

44    Accordingly, the Minister contended, it is necessary to focus on factual reality such that if a person claims a real risk of significant harm premised on a particular factual basis, that claim might fail if the factual basis is rejected.

45    Returning to the particular focus on removal raised by DFO19's appeal, the Minister submitted that there is nothing in the text of the provision that requires the Tribunal to identify the particular method of any removal in undertaking its prospective task. Rather, the analysis of the protection claim is to be undertaken in the usual way having regard to the nature of the claims made by a visa applicant. In many cases the mode of removal - whether voluntary, involuntary, to a particular port, or by a particular means - is not identified as part of any claim. Where it is identified as part of a claim, and it is said that the mode of return might give rise to the risk of harm, then the decision maker would need to assess that claim in the usual way and it might accept or reject it. A claim that the mode of return gives rise to a risk of harm goes further than simply requiring the Tribunal to proceed on the basis that the visa applicant has been removed.

46    Therefore, the Minister submitted, the proper application of s 36(2)(aa) required the Tribunal in this case to consider DFO19's claim that there was a real risk that he would suffer significant harm upon return to Iran for reasons relating to his claim that he was a convert to Christianity, and in circumstances where he claimed he would not return voluntarily.

47    The claim did not go so far as to say expressly that the feared harm would result from the fact that any return would be involuntary, but the Tribunal, having confirmed during the hearing that the appellant claimed to fear harm as a returned asylum seeker and said he could not return voluntarily, was obliged to consider the claim in (at least) that context.

48    More generally, the Minister submitted, consideration of involuntary removal might give rise to matters that might seem paradoxical. For example, if there has been a longstanding practice of a country refusing to receive involuntary returnees, it might be that the decision maker cannot obtain information as to what might happen to an involuntary returnee. In the absence of reliable information, it might be that a decision maker simply cannot have substantial grounds to believe that there is a real risk of significant harm on involuntary removal.

49    The Minister contended that the Tribunal properly carried out the task required of it. It turned its mind to the position of the appellant on a prospective return and, the circumstances of any return having been raised, to those circumstances. Having considered and rejected the prospect of an involuntary return and having given reasons for that rejection, it went on to consider the claim in the context of the only other manner by which the appellant might be returned, being a voluntary return. That course, it was submitted, was appropriate.

Consideration

50    At the outset, we accept, as the Minister accepted, that the construction of s 36(2)(aa) requires the Tribunal to proceed on the basis of a prospective removal from Australia and the harm that might befall the visa applicant in that scenario.

51    We also accept that the Tribunal is required to assess the individual circumstances of the visa applicant and the basis on which they claim that the circumstances give rise to the requisite chance of harm. When considering the claim, with its inherently prospective nature, the Tribunal is not obliged to consider claims divorced from all practical reality, having regard to the guidance provided by DQU16 and Guo.

52    The nature of the inquiry will depend upon the manner in which a claim is made. Absent the identification by the visa applicant of any particular link between the mode of removal and the feared harm, it may not be necessary for the Tribunal to identify the mode of removal. It may be sufficient to proceed on the basis that one way or another, assuming the visa applicant to have been removed to the receiving country, the person claims that they will be exposed to a real risk of significant harm.

53    It might be that the country information received by the Tribunal refers to particular risks associated with involuntary removal, as against voluntary removal. If so, that might focus the attention of the Tribunal on whether the visa applicant has made a claim based on any particular mode of removal.

54    It might be the case that the terms of the protection claim focus on involuntary removal but also disclose that the visa applicant asserts that they will not return voluntarily, or leaves that question and the prospect of any other means of removal open. In that scenario a decision maker would need to test the prospect of involuntary return. They might find, for example, that no involuntary removal can proceed based on country information, or that there is no reliable information as to what might happen in the returning country upon an involuntary removal, such that the protection claim is not made out. However, their consideration of involuntary removal may not be sufficient to meet the statutory task because there may be other prospective methods of removal that should be addressed. For example, once a finding is made that there will be no involuntary removal, some testing of the prospect that the visa applicant might return voluntarily may be required, even where the visa applicant has expressed a reluctance or refusal to do so. Such an approach is consistent with the decision maker proceeding under a provision that does not prescribe the manner of any prospective removal.

55    For this reason, the Minister correctly accepted that it will not be sufficient for a decision maker simply to find that there is no prospect of an involuntary removal, and to conclude on that basis that there are no grounds that establish the criteria for a protection visa under s 36(2)(aa). A more substantive reasoning process is required in order to properly undertake the statutory task. A careful analysis of the claims is required.

56    Having said that, the Tribunal is not obliged to speculate as to any number of theoretical modes of removal and make findings as to the risk of harm that might follow from each. However, where a particular mode of removal is identified by an applicant (for example, entry to a particular port) and linked to a particular risk of harm, then that claim falls to be considered in the same manner as any other factual premise that underlies a claim.

57    We also acknowledge that there may be circumstances where the Tribunal finds that there is no real prospect of removal at all and it is far-fetched to assume to the contrary. In our view, such circumstances might provide an example of a case where the criteria in s 36(2)(aa) cannot be met and the visa applicant will have failed to make out a case for a protection visa. That is because the applicant will have failed to persuade the Tribunal that there is a realistic scenario in which, on return, he or she will suffer harm. Then there may not be an evidentiary basis for any 'substantial grounds' as required. That outcome will not be the result of a finding that return to the receiving country will not occur under any circumstances. It will be the result of a lack of evidence as to how that return will occur and its consequences.

58    We acknowledge that this may lead to an unenviable outcome for a failed visa applicant by way of detention that might continue indefinitely until they are able to be removed (voluntarily or otherwise): Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219. We do not speculate as to other potential outcomes, such as whether there might be another type of visa for which a person in the position of DFO19 might apply.

59    We do not suggest that the prospect of indefinite detention, relied upon in particular in APM19's submissions, is irrelevant to the current issue. For example, it may well inform the question of the likelihood of any requested removal or other voluntary return in a particular case. However, the task under s 36(2)(aa) is not analogous to the task to be undertaken by a decision maker considering cancellation of a visa or revocation of a cancellation decision in circumstances where such cancellation may result in indefinite detention: see, for example, the discussion in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; (2021) 283 FCR 525 (Perram, Wigney and SC Derrington JJ). In such cases, the prospect of indefinite detention may fall to be considered in the exercise of a discretion. The nature of the statutory task on an application for a protection visa is different. It is not a discretion, but for the purpose of s 36(2)(aa), the Tribunal was obliged to consider whether the criterion was met, in the prospective manner explained in DQU16.

60    As to APM19's submission that there may be a change in position to permit involuntary return sometime in the future (see [31] above), the Tribunal did not ignore this prospect, either in DFO19's case or, as will be seen, that of APM19. It considered and rejected it, finding in both cases that 'into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU': see extracts from reasons at [15] above and [107] below. The provision does not require the Tribunal to consider all hypothetical outcomes into the future. A scenario where a government of a receiving country might change its position on involuntary returnees is not the only example where the circumstances relating to a receiving country might change after a protection visa has been refused. The potential response of the Minister to significant changes in position in the context the operation of s 198 of the Migration Act, the Minister's personal powers under s 417 or otherwise, would, in the absence of any evidence, require a high degree of speculation - and we were taken to none that was relevantly before the Tribunal in these proceedings.

61    Finally, we turn to APM19's reliance on the relevant passage from Buchanan J in SZUNZ. The appellant in SZUNZ was stateless. He challenged the decision of the RRT to treat Norway as the sole potential receiving country on the basis of habitual residence, when he had lived in other countries such as Spain, Algeria, Morocco and Western Sahara. Having determined that Norway was the receiving country, the RRT considered the criterion for a protection visa in s 36(2)(aa) of the Migration Act. In short, the protection claim centred on the appellant's fear of retribution from criminal gangs. The RRT found that taking the country information as a whole, the Norwegian authorities would protect the appellant if he returned such that he would not suffer significant harm.

62    The case centres on the (former) definition of 'receiving country' and more particularly the meaning of 'habitual resident', and whether the question of habitual residency was to be determined solely by reference to the law of the receiving country or engages with the facts, or the 'practical possibility of return to the place where a person has habitually lived'. The definition of 'receiving country' has since been amended.

63    The indications were that despite the finding that the appellant was a habitual resident of Norway, and so the relevant receiving country was Norway, removal to Norway might be practically impossible because Norway would not accept him. The appellant does not appear to have criticised the manner in which the RRT then considered whether there was a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed to Norway. That was not the gravamen of the review application or the appeal. Whether there was a requirement that the RRT undertake the assessment even though Norway apparently would not accept the appellant was not questioned. Nor was there any discussion of how the task might be undertaken if there were potentially different hypothetical modes of return. Therefore, SZUNZ does not assist with the particular question now being considered.

DFO19's reliance on s 36(2)(a) in its pre 2014 amendment form

64    APM19 did not seek to rely on the construction of s 36(2)(a) of the Migration Act for the purpose of his appeal. However, DFO19 contended that the section (in its pre 2014 amendment form) required the Tribunal to hypothesize a method of return: that it was not possible to discount all of the possible methods of return and proceed on the basis that there would be no return at all. This was said to be the same conceptual argument as that relied upon for the purpose of the complementary protection criterion under s 36(2)(aa).

65    As noted at [3] above, in its pre 2014 amendment form, s 36(2)(a) provided that a criterion for the grant of a protection visa was that the applicant be:

…a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

66    Article 1A(2) of the Refugees Convention provides that the term 'refugee' shall apply to any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …

67    The passage refers to two cumulative conditions. The first condition is that the person is outside the country of their nationality owing to well-founded fear of being persecuted for a Convention reason. The second condition is met if that person is unable or, owing to such fear, unwilling to avail themselves of the protection of their country of nationality.

68    As to the second condition, the reference to protection in the phrase 'unwilling to avail himself of the protection of that country' is a reference to external protection, in the sense of diplomatic or consular protection extended abroad by a country to its nationals: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 at [21] (Gleeson CJ), [61]-[62] (McHugh and Gummow JJ). Accordingly, assessment of the condition does not require any hypothesis or assumption about the return by the person to their country of nationality.

69    As to the first condition, whether the assessment requires consideration of what might befall the person on return will depend upon the circumstances. For the fear to be well-founded there must be a real chance, in the sense of not a far-fetched possibility, of persecution: Guo at 570-572.

70    Again, the parties were largely in agreement that if the claimed fear was said to be founded on the risk of persecution as a returnee, then the manner of the claimed return was relevant.

71    However, according to DFO19, the mode of his hypothetical return that should have been considered was that of involuntary return. It was not possible to proceed on the basis of no return at all. It was accepted by counsel that it was in effect the same conceptual argument as that put with respect to s 36(2)(aa).

72    According to the Minister, the reasoning with respect to the complementary protection assessment also similarly applied to s 36(2)(a). That is, the scope of the factual inquiry would depend upon the nature of the claim. In the case of fear of persecution premised on the nature of return, a decision maker might conclude there is no real chance of such persecution because there is no real chance of a particular identified mode of return. That does not mean that the possibility of all modes of return is to be dismissed.

73    Effectively, both parties (DFO19 and the Minister) seemed to accept that determining whether a person outside their country of nationality has a well-founded fear of persecution requires the decision maker to consider what will happen if the person returns to the country. As both parties in effect adopted the same arguments as were promoted with respect to s 36(2)(aa), it is not necessary for us to analyse the position under s 36(2)(a) in any further detail: our reasoning as set out above also applies with respect to s 36(2)(a) as it then stood.

Analysis in this case

74    The question on this appeal, then, is whether the Tribunal erred in the manner in which it carried out its task.

75    The starting point for the Tribunal in this case was that there was a claim based on harm arising from being a failed asylum seeker and in circumstances where the appellant said during the hearing before the Tribunal that he cannot return to Iran voluntarily.

76    It was therefore appropriate for the Tribunal to consider the most obvious alternative mode of potential removal, being involuntary removal. Any evidence as to the practices of the receiving country, including any evidence as to a potential change in the position of the receiving country would be relevant to that task. It needed to consider whether there was a proper basis for concluding there was no prospect of any removal being involuntary. If it considered there was any real prospect of involuntary removal, then any evidence as to what might happen to the applicant on his return needed to be considered.

77    The Tribunal was also entitled to assess whether any prospective removal for the purpose of s 36(2)(aa) might be on a different basis. It was entitled to consider the significance and veracity of the appellant's statement that he would not return voluntarily. If it had a basis for considering that the appellant might change his mind, then it was relevant to assess whether there were substantial grounds for believing that, as a consequence of that voluntary removal, there was a real risk of substantial harm.

78    In our view, this is the nature of the task required of the Tribunal in this case.

79    The Tribunal was clearly alive to the significance of the manner in which a visa applicant might be removed, having asked the appellant during the hearing whether he would return voluntarily.

80    It is unsurprising that the Tribunal first turned to the potential for involuntary return as the manner of removal. The Tribunal took into account the 'long history of the Iranian government not accepting involuntary returnees'. It took into account a statement from the Iranian Foreign Minister in 2016 that it would only take back failed asylum seekers who returned voluntarily. It took into account the Memorandum of Understanding (MOU) that changed the position from 19 March 2018 so that Iran would facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia, a course that did not operate retrospectively. The Tribunal inferred that having just achieved that 'diplomatic breakthrough' by way of the MOU, the Iranian government would not revisit its refusal to otherwise accept involuntary returnees.

81    Therefore, the Tribunal did not simply determine the matter on the basis that involuntary removal on the present information would not occur. It considered whether there was any prospect of that position changing, and for the reasons given rejected that prospect. It therefore made a finding to the effect that there was no basis to proceed on the assumption that any removal for the purpose of s 36(2)(aa) would be an involuntary removal. Minds might differ as to whether that inference should be drawn in all the circumstances without further inquiry. But the finding is unchallenged and there is no suggestion that the appellant pointed to any other country information or evidence that undermined the foundation of the inference.

82    The Tribunal then considered whether the appellant might be removed on another basis, the only potential manner on the materials before it being the potential for voluntary return. We accept that the reasons on this aspect verge on superficial, but we do not consider they disclose error. Crucially, the Tribunal did not find that the appellant would not return voluntarily. The words of para 55 appear to record what was said by the appellant as part of his claim but go no further. Accordingly, it can be inferred that the Tribunal has allowed for the prospect that the appellant might not persist in any decision to refrain from returning or being removed voluntarily. It speaks of what would happen 'if the applicant persists in not returning voluntarily' (emphasis added). It has implicitly recognised the possibility of voluntary removal, regardless of what the appellant may have said at that time about his intentions.

83    The appellant contended that it was 'nonsensical' for the Tribunal to proceed in this manner when the appellant had said he 'cannot go voluntarily'. However, in the absence of a specific finding that he would not do so and would not change his mind, it is apparent that the Tribunal considered that in contrast to the position with involuntary return, and despite the statement of the appellant that he 'cannot go voluntarily', there remained some prospect of return on a voluntary basis. So the Tribunal proceeded on the basis of an assumed removal by the only means apparently possible.

84    The Tribunal thus performed the statutory task in the way we have outlined it. In the circumstances before it, the Tribunal considered the likelihood of removal on the basis posited by DFO19 (involuntary), discarded that as a possibility, and then went on to consider what it can be taken to have identified as the only realistic scenario, voluntary return.

85    That reasoning could have been explained more fully, but it is to be recalled that the reasons of a Tribunal on review are not to be read over-zealously by seeking to discern inadequacy: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). This is an example where such a caution is appropriate.

86    As to the submission pressed on behalf of the appellant that the task under s 36(2)(aa) is to be undertaken on the assumption that any removal will be undertaken promptly, we do not consider any such gloss on the text of the provision is appropriate. We refer to the following observations in GLD18 v Minister for Home Affairs [2020] FCAFC 2 (Allsop CJ and Mortimer J, Snaden J agreeing as to the outcome):

[77]    The predictive exercise involved in forming a state of satisfaction as to the well-foundedness of a visa applicant's expressed fear of returning to her or his country of nationality was described by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [32]-[38]. Included in that exercise is, as the Court said at [37], an assessment and determination of what might happen to a visa applicant if she or he were returned to her or his country of nationality at the point in time the review decision is made, and what might happen in the near future thereafter. The Court emphasised the importance of the decision-maker examining the most recent country information, which was the most likely to give it an accurate picture of the circumstances in the country to which the visa applicant would be returned.

87    In the circumstances of this case, it is not apparent how the issue of promptness arises. It did not arise in the context of involuntary removal as the Tribunal found that there would be no involuntary return. The manner of the Tribunal's assessment of the position upon a voluntary return was not challenged in this case. Rather, the challenge proceeded on the basis that such assessment should not have been undertaken at all.

88    For the above reasons we do not consider that the Tribunal failed to perform the statutory task imposed on it by the relevant provisions. Its approach was consistent with the statutory text and with the purpose of the protection visa criterion. This extends to its conclusion (at para 77 of its reasons) that, based on the reasons it had given, DFO19 did not satisfy the criterion set out in s 36(2)(a).

Case law not inconsistent

89    For completeness, it is appropriate to refer to other appellate decisions of this Court that have considered the task of the Tribunal in this context, all involving potential removal to Iran.

90    It is to be noted that none of these cases address the arguments raised by the present appeal that suggest that where there is a finding by the decision maker to the effect that there will be neither voluntary nor involuntary return, there must still be an assessment on a hypothetical basis by the decision maker of the position upon return. Rather, each case is concerned with the claims actually made or, in the case of CLS15 v Federal Circuit Court of Australia [2017] FCA 577, the need to properly enunciate such claims.

CLS15 v Federal Circuit Court of Australia

91    In CLS15, Charlesworth J allowed an appeal from the Federal Circuit Court, and quashed a decision of the Tribunal that had affirmed the decision of a delegate to refuse a protection visa. The appellant was an Iranian citizen who claimed to fear persecution or to be at a real risk of significant harm because of his status as an involuntary returnee. The difficulty with the Tribunal's approach identified by her Honour was that it was unclear from its reasons whether it was directing itself to the risk faced by the appellant as a voluntary or involuntary returnee. Although the topic of involuntary return was averted to, the Tribunal arguably proceeded on the assumption that the appellant would return voluntarily. This was an example of confused thinking and ambiguity that could not be resolved by resort to inferences: at [56]. The Tribunal was obliged not only to consider which scenario applied 'but to supply an unambiguous answer to the question': at [58]. Her Honour said of the Tribunal's task upon remittal:

[64]    … It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.

92    In the present case the Tribunal identified the separate scenarios of removal on an involuntary or voluntary basis and made findings accordingly. The approach is distinguishable from that of the Tribunal in CLS15.

Minister for Home Affairs v EWP17

93    In Minister for Home Affairs v EWP17 [2019] FCA 205, Logan J distinguished CLS15: at [13]-[14]. His Honour was satisfied that the Tribunal had properly understood and addressed the relevant integer of the appellant's claim. The claim in that case, properly understood, was that the appellant would be returned involuntarily to Iran, but such return would be facilitated by both the Australian and Iranian governments. That claim was addressed in the reasons.

EYJ17 v Minister for Immigration and Border Protection

94    In EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 (published nine days after EWP17), Logan J found that there was no error in the Tribunal rejecting a claim by, first, finding that involuntary return to Iran would not occur in the reasonably foreseeable future and, secondly, finding that voluntary returnees were not at risk of persecution. His Honour observed that there was no material before the Tribunal that indicated the appellant would only return to Iran involuntarily: at [8]-[9]. The appellants' claims were not premised on a forcible return: at [9]. Accordingly, his Honour distinguished CLS15 on the facts, finding that the Tribunal assessed the appellant's claims as made.

DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

95    In DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063, the appellant before the Immigration Assessment Authority had relied on a claim based on forcible return, which it was said should be inferred in the circumstances. On appeal she contended that the Authority had to consider whether she would be at risk of harm however she was returned, whether voluntarily or involuntarily.

96    Based on country information, the Authority did not accept that the appellant would be returned to Iran forcibly in the foreseeable future. It dealt with this claim unambiguously. It then went on to consider the potential position if the appellant returned voluntarily. It did so in circumstances where it was not apparent from the appellant's claim that the appellant would not return voluntarily under any circumstance: at [83]-[84].

97    In those circumstances, Banks-Smith J considered that a failure by the Authority to embark upon a process of speculation about the effects of the hypothetical circumstances of involuntary return did not constitute jurisdictional error: at [72]. The Authority properly proceeded to consider the scenario of voluntary return: at [84].

98    Her Honour distinguished the circumstances from those in CLS15 and noted the similarities with EYJ17. Because the appellant in DUP16 contended that the Authority was bound to consider the circumstances of involuntary and voluntary return, the decision is not determinative of the correct approach in circumstances where the only finding open to a decision maker is that any return would be involuntary.

DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

99    In DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218, Anderson J considered that there was no jurisdictional error in the manner in which the Authority had assessed the appellant's protection claims. The circumstances in DBO19 were similar to those in DUP16. The Authority was satisfied that the appellant would not be returned involuntarily to Iran, based on country information, but also concluded that a voluntary return remained a possibility. His Honour concluded:

[139]    As for the possibility of voluntary return, it was open to the Authority to conclude that '[t]he applicant has not said he would not return voluntarily'. The Appellant's statement that he 'cannot return to Iran', and contemplation of what might happen if he was 'forced to return', was made in support of his protection visa application in his statutory declaration. But these statements did not preclude the possibility that the Appellant might agree to leave Australia voluntarily. There is no jurisdictional error in the Authority electing to consider this possible scenario, even if it was unlikely to transpire.

APM19'S APPEAL

100    We turn now to the particular circumstances of APM19's appeal.

Nature of protection claims

101    In his application for a protection visa made in 2013, APM19 claimed that he feared being returned to Iran because he would be persecuted for a number of reasons. His application for a protection visa was denied, a decision that was affirmed by the Tribunal. Upon an application for review to the (then) Federal Circuit Court, the matter was remitted by consent to the Tribunal for redetermination.

102    By the time of his second hearing before the Tribunal, his claims as summarised by his legal representative in written submissions were that he feared persecution because of a combination of matters: his religion as an apostate and converted Christian; his political opinions, being anti sharia law, anti the Iranian moral codes and pro-Musavi; and his membership of particular social groups, including being a suspected spy and being a returnee from Australia.

Ground of appeal

103    By an amended notice of appeal filed in this Court, APM19 also relied on only one ground of appeal. In summary, that ground asserted that the Tribunal made a jurisdictional error in failing to consider an integer of APM19's claim that he feared harm as a failed asylum seeker upon return because there was a difference between a person who returned voluntarily to Iran and a person who may be removed from Australia. In the particulars it was asserted that the Tribunal found that Iran will not accept involuntary returnees, without considering APM19's explicit claim that he would not return voluntarily and without considering whether, on the assumption of an involuntary return to Iran, there was a real risk of suffering serious harm. It was contended that consequently, the Tribunal did not give proper, genuine and realistic consideration to the circumstances that APM19 would face if he were involuntarily returned to Iran.

104    The Federal Circuit Court erred, it was alleged, in failing to find such jurisdictional error.

The Tribunal's reasons

105    APM19's written submissions included under the heading 'Failed Asylum Seeker' the conclusion that:

We submit a combination of adverse information on his files, being a forced returnee and being a Christian convert leaves the applicant facing a very real risk of being detained and imprisoned in Iran.

106    The Tribunal on remittal affirmed the delegate's decision not to grant a protection visa. The Tribunal made a number of adverse findings regarding APM19's credibility, and found that a number of claims were not true. For example, it found that APM19's claimed obligations to his Christian faith were contrived and revealed a willingness to amend his evidence to adapt to a preferred visa outcome.

107    Again, it is only necessary to consider certain parts of the Tribunal's reasons in order to address the ground of appeal. Those parts of particular relevance are the following:

Considerations - Failed asylum seeker

149.    The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily. On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

150.    Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, 'It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.' Based upon the long history of the Iranian government not accepting involuntary returnees and only in recent times a diplomatic breakthrough led to a change of position I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. As such when turning my mind to considering the applicant's risks I do so upon the basis that was he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. As such I will consider whether as a voluntary returnee he would face a real chance of serious harm or a real risk of significant harm.

(footnotes omitted)

108    The Tribunal then proceeded to consider the risks that might be faced by APM19 on a voluntary return, concluding that:

156.    In considering the entirety of the country information provided and the applicant's responses at the hearing including his evidence through statutory declarations I find that the applicant is not a person of interest. His transgressions against the law were minor and nearly a decade ago. He has no political profile. Based upon country information the Iranian authorities will pay little attention to him. Was he to return voluntarily as noted above he would not be questioned at the airport. He will not be asked whether he has converted. He will not be considered a spy for the West. No one will surveil him after he departs from the airport. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being a failed asylum seeker returning to Iran.

109    We note that the same Tribunal member determined both DFO19's and APM19's applications.

Before the Federal Circuit Court

110    The Tribunal's decision was the subject of a review application to the Federal Circuit Court.

111    Although there were a number of grounds of review, of present relevance is the fact that APM19 alleged before the Federal Circuit Court that the Tribunal:

… failed to consider an integer of the applicant's claim that the applicant feared harm from the Iranian authorities as a failed asylum seeker upon return to Iran, based on specific objections raised by the applicant at paragraph 2.17 on page 5 of the applicant's representatives' submissions to the tribunal dated 22 August 2018.

112    The identified para 2.17 stated:

It was not accepted [by the Tribunal] that the applicant would come to harm returning to Iran from the West/as a failed asylum seeker, due to the large Iranian diaspora, and frequent travel rates of Iranians.

113    That submission is somewhat ambiguous and, having regard to the identified written submission of 22 August 2018, APM19 appears to have adopted language relating to the Tribunal decision that was in fact remitted. However, the ground was more accurately summarised by the Minister's submission before the Federal Circuit Court as an allegation that:

[The Tribunal] failed to consider an integer of the Applicant's claim that the Applicant feared harm from the Iranian authorities as a failed asylum seeker upon his return to Iran.

114    As we have noted, it was stated elsewhere in APM19's written submissions before the Tribunal that any potential return would be as a 'forced returnee'.

115    It was argued on behalf of APM19 that the Tribunal had considered only the possibility of voluntary return, in circumstances where his intention not to return voluntarily 'was made clear to the Tribunal as it was inherent in his explicit claims that he feared adverse attention from authorities due to returning as a failed asylum seeker' (referred to at [41] of primary reasons). It was also submitted that, 'the Tribunal was, by virtue of the fact that he had raised the issue, required to consider how his return as an involuntary returnee would impact on the risk posed': at [41]. He submitted that on his case there was no prospect that he would return voluntarily: at [42].

116    The primary judge, in contrast to the position in DFO19's application, therefore engaged with this particular ground.

117    The primary judge concluded:

[61]    … Here, the Tribunal considered the 'failed asylum seeker' claim in light of the possibility of an involuntary return. It concluded on country information, namely the MOU and a recent press interview with the Iranian Foreign Minister, that involuntary return for persons who have no legal right to remain in Australia and who arrived before the date of the MOU would not occur in the reasonably foreseeable future. In doing so, it found that the underlying factual basis of that claim did not exist. It then went on to consider the risk to the applicant in the event of voluntary return and on the basis of country information found that he had no political profile and would not be paid any attention by the authorities. The Tribunal appears to have proceeded on the basis that if there was any return it would only be on a voluntary basis. If it is the case that the Tribunal assessed a claim which was not made, of risk as a failed asylum seeker returning on a voluntary basis to Iran, it did not in my view create an unfairness to the applicant. The mischief identified in CLS15 does not arise in this case because the Tribunal made an express finding as to the underlying factual basis on which the claim of involuntary return was made. I am not satisfied that jurisdictional error has been established and I dismiss this ground.

Differences between Tribunal reasons

118    It can be seen that the reasons of the Tribunal relating to DFO19 and APM19 are similar, but not identical.

119    In the case of DFO19 the Tribunal had asked the appellant about voluntary return and been told that he 'cannot return voluntarily' (see above at [16]). Despite this, it proceeded to consider the claim on the implicit basis that there was potential for DFO19 to change his mind. It did not find that DFO19 would not be removed voluntarily.

120    APM19 contended before the primary judge that the claim made before the Tribunal was premised on involuntary return, so that it was for the Tribunal to infer that it followed that he also claimed that he would not return voluntarily. So much was said to be 'inherent in his explicit claims'. The evidence did not disclose any express statement to the effect that he would not return involuntarily.

Analysis in this case

121    The question then, applying our reasons set out above at [50]-[63], is whether the Tribunal erred in undertaking its task by failing to consider whether there was a real risk that APM19 will suffer significant harm on an assumed involuntary removal to Iran and instead proceeding to consider such risk in the assumed circumstances of a voluntary return.

122    The Tribunal having found in this case that APM19 would not be removed to Iran involuntarily, it did not err in proceeding to consider the criteria of s 36(2)(aa) on the assumption of a voluntary removal. This follows from the manner in which the protection claim was made. Despite APM19's particulars that suggest the contrary, it is not apparent that there was any explicit claim made that he would not return voluntarily. The argument rests on inference, but there is no indication that it was made clear to the Tribunal that such an inference should be drawn. In those circumstances it is not surprising that the Tribunal did not find that the appellant would not return voluntarily. Accordingly, despite the manner in which the claim was made, it was open to the Tribunal to allow for the possibility that the appellant might be removed voluntarily. As was the case with DFO19, the Tribunal proceeded on the basis of an assumed removal, as required by s 36(2)(aa), and by the only means apparently possible.

123    The primary judge correctly observed that the Tribunal had made a finding as to APM19's claim based on an involuntary removal, and that the Tribunal considered that if there was to be any return it would be on a voluntary basis. The primary judge was right to conclude that jurisdictional error on the part of the Tribunal was not established.

Orders in both appeals

124    It follows that there is no occasion to set aside the orders of the primary judge in either appeal and the appeals should be dismissed with costs.

Associate:

Dated:    15 March 2023

REASONS FOR JUDGMENT

O’SULLIVAN J:

OVERVIEW

125    There are two appeals before the Court. SAD 145 of 2020, APM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (APM19) and WAD 304 of 2020, DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (DFO19). Both appeals raise the same issue which is whether the primary judges who heard appeals from the Administrative Appeals Tribunal (Tribunal) against the refusal of protection visas to Iranian citizens erred in failing to find that the Tribunal had made a jurisdictional error.

126    In the case of APM19, the jurisdictional error is contended to be the Tribunal’s failure to comply with Australia’s complementary protection obligations set out in s 36(2)(aa) of the Migration Act 1958 (Cth) (as it stood prior to 16 December 2014) (Act). In particular, it is contended that the Tribunal failed to consider whether there is a real risk that APM19 will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran involuntarily.

127    In the case of DFO19, the jurisdictional error is contended to be the same error as for APM19 but also a failure by the Tribunal to comply with s 36(2)(a) of the Act (as it stood prior to 16 December 2014) by not considering whether Australia has protection obligations to DFO19 under the Refugees Convention as amended by the Refugees Protocol in the event of DFO19 being returned to Iran involuntarily.

APM19

128    APM19 is an Iranian citizen who arrived in Australia on 30 April 2013 as an irregular maritime arrival. He applied for a Protection Visa on 1 August 2013 which was refused on 4 December 2014. The Tribunal affirmed the decision on 12 August 2016. An application for judicial review made on 7 September 2016 resulted in consent orders remitting the matter to the Tribunal for re-determination.

129    On 25 January 2019, the Tribunal again affirmed the decision not to grant a Protection Visa. On 8 September 2020, a judge of the Federal Circuit Court (as it then was) dismissed an application for judicial review of the Tribunal’s decision and it is from that dismissal that APM19 now appeals.

Grounds of appeal

130    There is a single ground of appeal, which is that the primary judge erred in finding:

… that the [Tribunal’s] error in failing to consider an integer of APM19’s claim that he feared harm as a failed asylum seeker upon return to Iran did not give rise to jurisdictional error in circumstances were (sic) there was material before the Tribunal to the effect that there was a difference between a person who returned voluntarily to Iran and a person who may be removed from Australia and where the appellant had raised this return scenario.

131    There are five paragraphs of particulars to the ground of appeal described as “particulars of the argument to be developed”. By way of summary, those particulars assert:

(a)    The Tribunal found that in the reasonably foreseeable future, the Iranian government will not accept involuntary returnees who had left Iran prior to 19 March 2018. The Tribunal approached its consideration of APM19’s claim to fear persecution in Iran as a failed asylum seeker but it did not consider or determine APM19’s explicit claim that he would not return to Iran voluntarily and did not consider or decide, on the assumption that APM19 was returned to Iran, whether there was a real risk that he would have been returned involuntarily and, in that event, would suffer serious harm;

(b)    Consequently, the Tribunal did not give consideration to the circumstances that APM19 would find himself in if he were involuntarily returned to Iran. Instead, the Tribunal considered the circumstances that APM19 would face if he were to return to Iran voluntarily and whether, as a voluntary returnee, he would face a real chance of serious harm or a real risk of significant harm;

(c)    The Tribunal should have considered and determined APM19’s claim that he would not return to Iran voluntarily, such that any removal of APM19 to Iran would be a forced removal (or that there was a “real risk” that it would be) and consequently there was a “real risk” that APM19 would suffer serious harm;

(d)    In the alternative, the Tribunal should have approached APM19’s claim on the basis it was required to consider, ie: on the assumption that APM19 returns to Iran in the reasonably foreseeable future, whether there was a “real risk” that APM19 would be in Iran because he had been returned to Iran involuntarily and, in that event, would face a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran;

(e)    As a consequence, the Tribunal:

(i)    Asked itself the wrong question; and

(ii)    Failed to give proper, genuine and realistic consideration to an integer of APM19’s claim, which is that he would face a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran as a failed asylum seeker who had been returned to Iran involuntarily.

132    The issues that arise are:

(a)    The proper construction of s 36(2)(aa);

(b)    Did the Tribunal err as asserted in the ground of appeal?; and

(c)    If so, did the primary judge err in finding that the Tribunal’s error did not give rise to jurisdictional error.

133    It is for the reasons set out below that the appeal should be dismissed.

The primary judge’s reasons (Reasons)

134    Before the primary judge, APM19 advanced five grounds which his Honour distilled into three grounds based on the Minister’s written submissions. The third ground, which is the subject of this appeal, was that the Tribunal failed to consider an integer of APM19’s claim that APM19 feared harm from the Iranian authorities as a failed asylum seeker upon his return to Iran.

135    His Honour dealt with ground three at reasons [35]-[50] and [59]-[61]. As the matter developed during submissions before the primary judge, his Honour divided this ground into two components: Reasons [38]:

(a)    Failure to give proper consideration to the possibility of involuntary return ; and

(b)    Failure to locate or take into account the most recent country information.

Failure to give proper consideration to the possibility of involuntary return - Reasons [39]-[42], [45]-[49]

136    His Honour dealt with this issue first by referring to the Tribunal’s decision at [149]-[156].

137    At [149]-[150], the Tribunal referred to a Memorandum of Understanding (MOU) between Iran and Australia signed on 19 March 2018 which included an agreement by Iran to facilitate the return of Iranians who arrived after that date and who had no legal right to stay in Australia.

138    The Tribunal continued by referring to the decision of Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577. In that matter, the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal. Nonetheless, the Tribunal considered the appellant’s Protection Visa application on the assumption that he would return voluntarily. Her Honour said: at [64], that: “It is for the Tribunal to determine, on the evidence before it, whether or not APM19 can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists”.

139    The primary judge referred to the statement by the Tribunal following a reference to Charlesworth J’s statement in CLS15, referred to above, that:

… I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. As such when turning my mind to considering the applicant’s risks I do so upon the basis that was he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. As such I will consider whether as a voluntary returnee he would face a real chance of serious harm or a real risk of significant harm.

140    The primary judge noted APM19 claimed his intention not to return to Iran voluntarily was made clear to the Tribunal as it was inherent in his claim that he feared adverse attention from the authorities due to his returning as a failed asylum seeker: Reasons [41]. On that basis, APM19 contended before the primary judge that because he had raised the issue of involuntary return, the Tribunal was required to consider how his return as an involuntary returnee would impact on the risk posed.

141    APM19’s submissions before the Tribunal identified the risk of harm on two potential bases, the first being the applicant returning to Iran as a voluntary returnee and the second returning to Iran on an involuntary basis. Since the Tribunal concluded that return to Iran as an involuntary returnee was not possible, the Tribunal did not proceed to undertake a risk assessment on that basis.

142    The respondent contended before the primary judge that the Tribunal had conducted its consideration of risk on the basis that APM19 would return as a voluntary returnee, as well as the risk of harm to APM19 should APM19 return to Iran as a failed asylum seeker.

Failure to locate or take into account the most recent country information – Reasons [43]-[44], [50]

143    Before the primary judge, APM19 contended that by its failure to source more up-to-date country information, the Tribunal proceeded on the false assumption that it should only consider the possibility of APM19 as a voluntary returnee, as opposed to an involuntary returnee, which led to an inappropriate assessment of risk.

144    The respondent had submitted that the Tribunal’s decision reveals that the Tribunal had identified a range of country information which was relied upon including that provided by APM19 before the Tribunal.

The primary judge’s consideration

145    After referring to the statement by Charlesworth J in CLS15 at [64] and the Tribunal’s finding at [150], the primary judge considered the issue of whether, by only considering APM19 as a voluntary returnee, the Tribunal had fallen into error.

146    His Honour distinguished CLS15 on the basis that in that matter the Tribunal had not found whether the appellant could be forcibly returned. In contrast, the primary judge held that on the country information before it, the Tribunal found that the involuntary return of persons who have no legal right to remain in Australia and who arrived before the MOU, would not occur in the reasonably foreseeable future.

147    As there was no factual basis for involuntary return, that led the Tribunal to consider the risk of harm to APM19 were he to be returned as a voluntary returnee. On the point that the Tribunal considered a case that was not advanced before it, ie: that APM19 would return voluntarily, the primary judge did not consider that approach created any unfairness to APM19.

148    The primary judge considered that jurisdictional error had not been established.

APM19’s submissions on appeal

The proper construction of s 36(2)(aa)

149    Section 36(2)(aa) provides:

A criterion for a protection visa is that the applicant for the visa is:

(a)    …

(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; or

(b)    …

150    APM19 identifies two issues:

(a)    The first is whether s 36(2)(aa) requires a decision-maker determining a Protection Visa application to assume that the person is to be removed to the receiving country no matter the mode of removal, or whether it is part of the enquiry to determine the factual question of whether or not they will be removed to the receiving country?; and

(b)    The second is whether the Tribunal acted inconsistently with the requirements of s 36(2)(aa).

151    APM19 contends that the Tribunal failed to make a factual finding that APM19 would not or could not return to Iran at all and that in those circumstances there were two alternatives:

(a)    The Tribunal was required to consider APM19’s explicit claim that he would not return to Iran voluntarily. If that finding was made, the Tribunal was required to determine whether APM19 would face the real risk of significant harm if returned as an involuntary returnee; and

(b)    The alternative approach is that in circumstances where the prospect of APM19 being returned from Australia to Iran at all is extremely low, given his claim he would not return voluntarily, the Tribunal was nonetheless required to consider whether, on the assumption APM19 was in fact returned to Iran, there was a real risk that such return would be involuntary.

152    APM19’s primary contention is that the Tribunal asked itself the wrong question, which was whether APM19 would be returned to Iran involuntarily in the foreseeable future, a question it answered in the negative. APM19 submits that instead the Tribunal should have, but did not, address the claim made which was since that voluntary return would not occur, what was the risk to APM19 in the event he was returned to Iran on an involuntary basis?

153    APM19 contends that the Tribunal never addressed the question of, nor made any findings, as to whether APM19 would return to Iran involuntarily.

154    As such, the Tribunal effectively left open the possibility of involuntary return and so did not grapple with the distinction in the two different approaches.

155    On that basis, APM19 submits that by failing to take one of these alternative approaches, the Tribunal asked itself the wrong question or failed to give proper, effective and realistic consideration to an integer of APM19’s claim, ie: to consider the risk of harm to APM19 if returned involuntarily. APM19 contends the Tribunal assessed APM19’s “failed asylum seeker” claim solely on the basis that he would be returning to Iran as a voluntary returnee, ie: at his own election and in circumstances where it would appear to Iranian authorities APM19 had returned of his own choice as opposed to APM19 returning involuntarily as a “failed asylum seeker”.

156    APM19 contends that the decision-maker has to consider the hypothetical even though it is unlikely to occur. APM19 submits that the question of fact the Tribunal has to consider is what are the risks to APM19 in the event of an involuntary return and refers to SZUNZ v Minister for Immigration and Border Protection [2015] FCAFC 32; (2015) 230 FCR 272 at [31] (Buchanan J) where his Honour considered that where the definition of “receiving country” is employed in s 36(2)(aa): “The inquiry is one which engages with the practical possibility of return to a place where a person has (habitually) lived, whether or not return to that country can be accomplished.”

157    I do not consider SZUNZ assists APM19. His Honour’s observations were directed at identifying the “receiving country” for the purposes of the section and to that extent, his Honour was not dealing with the same question that is now before the Court.

158    APM19 also refers to DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 at [37]. The High Court was there considering the principle in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 and whether it applied to a claim for complementary protection under s 36(2)(aa). The High Court observed in some cases it may not be possible to make a definite conclusion about an applicant’s future conduct and that the question is whether there was a real risk of significant harm if an applicant is returned to a receiving country.

159    APM19 contends that the application of the criteria in s 36(2)(aa) requires a decision-maker to look ahead to a hypothetical or contingent future situation on the assumption that the hypothetical or contingent future situation manifests itself and that the question cannot be answered by finding removal will not occur in fact.

160    So it is, that APM19 submits s 36(2)(aa) required the Tribunal to make an assessment of the hypothetical, ie: APM19 was removed involuntarily from Australia to Iran.

161    An alternative submission by APM19 is that the Tribunal was required to commence its consideration of the hypothetical situation on the assumption that APM19 would be in Iran in the future and given that assumption, there is a risk he would be removed to Iran involuntarily such that the Tribunal was obliged to assess the claim on that basis.

162    APM19 submits that is different from the question the Tribunal asked itself which is whether APM19 would be removed involuntarily as opposed to proceeding on the basis of the assumption.

163    APM19 refers to five single judge decisions of this Court which have addressed the question of involuntary return to Iran but submits that the approach in those cases does not reflect the way APM19 puts the argument in this appeal.

CLS15 v Federal Circuit Court of Australia

164    The issue in CLS15 centred around the Tribunal’s failure to make factual findings. In allowing the appeal, Charlesworth J found that the appellant had claimed to be at real risk of significant harm within the meaning of s 36(2)(aa). The respondent had submitted that the Tribunal’s reasons should be understood implicitly as proceeding on the assumption that the appellant would return voluntarily because the Tribunal had already accepted that an involuntary return was not possible: at [46], [52]. Her Honour considered that if the Tribunal had proceeded on the basis of a voluntary return, it had assessed a claim the appellant had not made. Conversely, if the premise underlying the Tribunal’s reasoning was that of an involuntary return, that premise was inconsistent with the inference the Minister sought to draw from the Tribunal’s reasoning. Accordingly, the proper inference was that the Tribunal had engaged in confused thinking, resulting in a failure to make factual findings concerning the appellant’s particular circumstances and a failure to apply the statutory criteria to the facts as found, particularly the criterion in s 36(2)(aa).

165    The issue in CLS15 was different from the matter on appeal as Charlesworth J found that the Tribunal had failed to make factual findings concerning the appellant’s particular circumstances. Nonetheless, it is correct to say that the argument that the Tribunal should have considered the hypothetical does not seem to have been put.

Minister for Home Affairs v EWP17

166    The issue in Minister for Home Affairs v EWP17 [2019] FCA 205 was whether the Tribunal had failed to engage with a particular (or integer) of the applicant’s claim.

167    In the Court below, the primary judge had held that the circumstances of the case were not materially different from the circumstances which led to Charlesworth J deciding in CLS15 that the Federal Circuit Court was in error in affirming the decision of the Tribunal.

168    Logan J accepted the Minister’s submission that the matter on appeal was able to be distinguished from CLS15 on the basis that the Tribunal addressed the integer of the applicant’s claim that his return, being an involuntarily one, would be facilitated by both the Australian and the Iranian Governments. At [14], his Honour referred to the Tribunal’s finding, based on what it described as “credible sources”, that:

Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport… they will generally only be questioned if they had done something to attract the specific attention of authorities.

His Honour considered that read in context, this passage of the Tribunal’s reasons took the case outside of the error that had been described by Charlesworth J in CLS15.

169    Logan J found that the Tribunal had considered the prospect of involuntary return, facilitated by both the Australian and Iranian governments. To that extent, it was not necessary for the Court to consider the hypothetical to which APM19 refers in this appeal.

EYJ17 v Minister for Immigration and Border Protection

170    In the matter of EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347, the Tribunal had found that it was not satisfied the applicant would be involuntarily returned to Iran either then or in the reasonably foreseeable future. The Tribunal assessed the appellant’s claims by reference to voluntary return.

171    Logan J allowed the appeal on other grounds but in dealing with a point raised on appeal that the Tribunal had asked itself the wrong question by considering whether the appellant would be harmed if he were to return to Iran as a voluntary returnee, his Honour noted there was no material before the Tribunal that indicated the appellant would only return to Iran involuntarily: at [8]. His Honour distinguished CLS15 on the facts, finding that the Tribunal assessed the appellant’s claims concerning his potential return to Iran and that the primary judge had correctly identified the absence of merit in the point. His Honour found that s 5J(1)(b) of the Act did not oblige the Tribunal to assess return scenarios which were never posited by the appellant in the claims he made: at [10].

172    Again, it is correct to say that no argument was put that the Tribunal should have considered the hypothetical as part of s 36(2)(aa), notwithstanding there was no suggestion that the applicant would be involuntarily returned to Iran at that time or in the reasonably foreseeable future.

DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

173    In the matter of DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063, the grounds of appeal included that the Immigration Assessment Authority (Authority) had to consider whether the appellant would be at real risk of harm in the event she was returned to Iran whether voluntarily or involuntarily.

174    The submission to the Authority had expressly referred to a claim, said to be inferred, based upon a forcible return. The alleged error was said to be a failure to consider that claim.

175    Banks-Smith J noted there was no suggestion that the delegate had erred by having regard to the potential consequences of a voluntary return: at [69].

176    The country information before the Authority had concluded that the appellant would not be returned to Iran forcibly and that Iranian overseas missions will not issue travel documents to facilitate involuntary returns: at [70].

177    On that basis, her Honour noted the potential consequences for the appellant because of forcible removal to Iran was hypothetical and that when the country information disclosed that no such returnees were being accepted by Iran at that time, consideration of the purported consequences would likely have been speculative: at [71].

178    Her Honour found the Authority considered the question of forcible return but because the country information, which was accepted by the Authority, did not disclose there was a real chance of that occurring in the reasonably foreseeable future, the fundamental premise upon which the claim was based was undermined. In her Honour’s view, a failure to embark upon a process of speculation about the effects of hypothetical circumstances did not constitute jurisdictional error: at [72].

179    That left only voluntary return which was addressed by the Authority. Her Honour did not consider any error was disclosed in the Authority’s reasoning and it had undertaken its statutory task: at [83]-[84]. In reaching that conclusion, her Honour considered other authorities including CLS15, noting Charlesworth J’s conclusion that the Tribunal in CLS15 had failed to address the protection claim that had been put to it and thereby failed to apply the statutory criteria. Her Honour however, distinguished the appeal before her from that in CLS15 on the basis that it was not apparent from the appellant’s claim (in DUP16) that the appellant would not return voluntarily under any circumstance: at [84]. Her Honour noted however: at [87], that had the facts not been distinguishable from those in CLS15, she would not have departed from that authority given that Charlesworth J had found that if the decision-maker accepted country information that there would be no involuntary return, it was not necessary to consider that scenario.

180    This was a case where the hypothetical approach had been proposed but rejected.

DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

181    In the matter of DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218, the appellant had submitted in one of his grounds of appeal, that there was no basis for the Authority to find the appellant would return to Iran voluntarily. In contending error, the appellant had relied on CLS15. Anderson J referred to DUP16 where Banks-Smith J had distinguished CLS15 before holding in the matter before him that it was clear the Authority was not satisfied (sic, was satisfied) the appellant would not be returned to Iran involuntarily. That was because the Authority had relied on DFAT country information which stated that Iran “has historically refused to accept involuntary returnees”. The Authority took the view that was sufficient to dispose of the appellant’s claim, insofar it was based on a risk of harm if the appellant was involuntarily returned: at [136].

182    His Honour dismissed this ground of appeal. There was no suggestion that a hypothetical involuntary return should have been considered by the Authority.

The respondent’s submissions on appeal

183    The respondent identified two features of this appeal which are unusual.

184    The first is that the protection claim depends on the mode of removal, in this case involuntary removal. That is so because the Tribunal found no significant risk of harm in the case of voluntary removal.

185    The second is that in both APM19 and DFO19 there is no challenge to the Tribunal’s finding that into the reasonably foreseeable future the Iranian Government will not accept as involuntary returnees, those of its citizens who arrived in Australia before 19 March 2018. Notwithstanding that finding, APM19 asserts that the Tribunal was required to consider the complementary protection claim in s 36(2)(aa) on the premise that he is returned involuntarily. The Minister submits the Act does not require or permit such a result. However, the Minister accepts that for the purposes of s 36(2)(aa) it is not sufficient simply to determine that there will be no involuntary return in the foreseeable future and go no further.

The proper construction of s 36(2)(aa)

186    The respondent observes that s 36(2)(aa) refers to a non-citizen “being removed” without any mode of removal being specified and that at that stage, ie: pre-the 2014 amendments, the definition of “remove” in s 5(1) was “removed from Australia”.

187    The respondent refers to s 198 of the Act, which deals with the removal from Australia of unlawful non-citizens. The Minister submits that s 198(1) which provides:

An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

is not limited to voluntary removal in the sense that an unlawful non-citizen may request removal but that does not mean the removal is voluntary. Accordingly, the use of the word “remove” or “being removed” in s 36(2)(aa) does not carry with it any necessary connotation that the removal be voluntary or involuntary. It is readily apparent that the text of the section supports that construction and I accept that submission.

The proper application of s 36(2)(aa)

188    Next, the Minister submits that what is required is a factual, practical and realistic approach. The Minister refers to DQU16 at [19] where, when referring to s 36(2)(aa) the High Court said:

The statutory question namely whether a person can be removed to a particular State without suffering identified forms of harm, is framed by reference to the risk of a non-citizen suffering significant and specified harm as a necessary and foreseeable consequence of removal to a receiving country. Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen on the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk is a necessary and foreseeable consequence of removal to a receiving country.

(emphasis in original)

189    Referring to the words “real risk” in the section, the Minister submits that the standard of “real risk” excludes prospects that are remote or far-fetched such that the focus is on factual realities which, although forward-looking, are nonetheless factual. The Minister refers to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 where when discussing the concept of a well-founded fear, the High Court said:

Conjecture or surmise has no part to play in determining whether a fear is well founded.A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

190    The Minister submits that the High Court’s observations apply equally to the “real risk” standard in the complementary protection context. Thus, so the Minister contends, the need is to focus on factual reality such that if a person claims a relevant risk of significant harm premised on a particular factual basis, that claim might fail if the factual basis is rejected.

191    The Minister submits that nothing in the Act prevents a decision-maker from analysing the factual basis of a claim and rejecting it if there is nothing to support the mode of return. That was the form of reasoning adopted by Charlesworth J in CLS15 and Banks Smith J in DPU16, albeit in different factual scenarios.

192    The Minister referred to the contentions advanced by APM19 before the Tribunal, in particular those contentions under the heading “Failed Asylum Seeker”, noting that the Tribunal rejected APM19’s claims. In particular, the Tribunal considered the prospect of involuntary return and made a factual finding in its reasons at [149]-[150]. After referring to the MOU and the observations by Charlesworth J at [64] of CLS15, which I have set out above, the Tribunal addressed the risks to APM19 upon the basis that were he to return to Iran in the reasonably foreseeable future, he would do so as a voluntary returnee. The primary judge referred to this part of the Tribunal’s decision at Reasons [39].

Consideration

193    The underlying premise in both the approaches contended for by APM19 is that in reaching the state of satisfaction that Australia has protection obligations on the basis the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia to a receiving country there is a real risk that a non-citizen will suffer significant harm, the Minister is required to consider both modes of return, ie: both voluntary and involuntary.

194    The text of s 36(2)(aa) provides that a criterion for a Protection Visa is that the non-citizen in question is a person to whom the Minister is to be 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.

195    The first point is that the Minister must form a belief on substantial grounds that there is a real risk that the non-citizen will suffer significant harm. APM19 contends that those substantial grounds must include the hypothetical that he will be returned involuntarily. Given the position that Iran had made it clear it would not accept involuntary returnees, it is difficult to see why there is a real risk that APM19 will suffer significant harm when there is no possibility of involuntary removal. Whether grounds are substantial will vary in each case, however in view of Iran’s position, any consideration of whether there is a real risk of significant harm is purely speculative. That being the case, there is no basis upon which the required belief may be formed.

196    The Tribunal found, and the primary judge accepted: Reasons [61], there is no prospect of involuntary removal. Accordingly, there were no substantial grounds to form any belief about what might happen in the hypothetical case of involuntary removal. To have engaged in such an exercise in the context of this matter entails descending into speculation with the uncertainty that necessarily involves. The obvious difficulty in engaging in speculation is determining its’ limits.

197    Since APM19 could not be returned to Iran involuntarily, the Tribunal considered the only basis upon which APM19 could be returned, which was voluntarily. The key point is the mode of return and the factual basis to support or not support that mode as the case may be. To that extent, I accept the Minister’s submissions that s 36(2)(aa) does not require the decision-maker to consider something that is purely hypothetical and divorced from the findings of fact made by the decision-maker. To do so would be to speculate as to risk based upon a premise that the decision-maker has found is not established.

198    To that extent, the observations by Banks-Smith J in DUP16 at [72], that in circumstances where the fundamental premise upon which the claim was based was undermined, a failure to embark upon a process of speculation about the effects of hypothetical circumstances did not constitute jurisdictional error are apposite.

199    In this matter, the Tribunal considered the appellant’s claim on the basis of involuntary removal but found that would not occur such that it proceeded to consider APM19’s claim on the basis of a voluntary removal, notwithstanding the appellant had not advanced that scenario. To that extent, the Tribunal did not commit an error of law in relation to the issue of involuntary return as it specifically found that would not occur. By proceeding to consider voluntary return, the Tribunal was addressing the task required by s 36(2)(aa).

200    I accept voluntary return was not the basis of the claim advanced, however the basis upon which the claim was advanced was expressly found by the Tribunal not to exist. The consideration of the integer of voluntary return as the only possible prospect, as unlikely as it is, does not turn the non-existent prospect of involuntary return into a possibility requiring consideration.

201    APM19’s submission that given his stated position that he would not return to Iran voluntarily, results in the Tribunal being obliged to consider the hypothetical, seeks to manoeuvre around authorities such as CLS15 and DUP16. Restating the counterfactual as a positive obligation is not sufficient to undermine the Tribunal’s factual finding that there was no prospect in the foreseeable future of APM19 being returned involuntarily and does not disclose jurisdictional error.

202    APM19’s alternative submission that the Tribunal was required to commence its consideration of the hypothetical situation on the assumption that APM19 would be in Iran in the future and given that improbable assumption, there is a risk he would be in Iran due to involuntary removal, suffers from the same flawed assumption as the primary argument.

203    The Tribunal’s decision is not affected by jurisdictional error.

CONCLUSION ON APM19

204    For the reasons set out above, the appeal should be dismissed. There is no reason why costs should not follow the outcome in the usual way.

DFO19

205    DFO19 is an Iranian citizen who arrived in Australia as an Irregular Maritime Arrival in August 2012. An application for a permanent Protection Visa was refused by the delegate, and affirmed by the Refugee Review Tribunal before it was quashed by the (then) Federal Circuit Court of Australia in February 2018. The matter was remitted to the Tribunal for consideration of DFO19’s application which had then been converted to an application for a temporary Protection Visa.

206    The Tribunal affirmed the decision not to grant DFO19 a Protection Visa and an application for review in the (then) Federal Circuit Court of Australia was dismissed. It is from that dismissal that DFO19 now appeals.

The appeal in DFO19

207    When the matter was called on, DFO19 sought, and in the absence of any objection, was granted leave to file what is titled a “Re-amended Notice of Appeal from the Federal Circuit Court of Australia”.

208    There is one ground of appeal, which is that the Court below erred in failing to find that the Tribunal made a jurisdictional error by failing to consider whether DFO19 would face a real chance of serious harm or a real risk of significant harm if he was to return to Iran involuntarily.

209    There are four particulars of the ground of appeal, the first of which concerning s 5J of the Act, is not pressed.

210    The remainder of the particulars contend:

(a)    Article 1A of the Refugees Convention worked to require the Tribunal to assume DFO19 would be returned to Iran howsoever that may occur. This is the s 36(2)(a) point;

(b)    Section 36(2)(aa) required the Tribunal to consider whether as a necessary and foreseeable consequence of DFO19 being removed from Australia to Iran, there is a real risk he will suffer significant harm; and

(c)    At [57], the Tribunal considered the circumstances if DFO19 was to return to Iran voluntarily. However, that was the wrong question because the Tribunal had to consider the case on the premise that DFO19 will be returned involuntarily (and not inquire into whether that kind of return would be achieved).

Issues

211    The following issues arise:

(a)    The proper construction of s 36(2)(aa) of the Act;

(b)    Depending on the proper construction of s 36(2)(aa), whether the Tribunal applied the section correctly; and

(c)    Whether the Tribunal applied s 36(2)(a) correctly.

212    It is for the reasons set out below that the appeal should be dismissed.

The primary judge’s reasons (Reasons)

213    After setting out the history of DFO19’s application, the primary judge noted that the Tribunal considered what would happen to DFO19 on the basis he was a voluntary returnee. That was because it was doubtful Iran would accept DFO19 if he did not return voluntarily.

214    The primary judge also noted the Tribunal relied on a great deal of Country Information which revealed that Iranian authorities had little interest in prosecuting failed asylum seekers for activities conducted outside of Iran, including in relation to protection claims.

215    The primary judge identified that the Tribunal found DFO19 did not satisfy the refugee criteria or the complementary criteria.

DFO19’s submissions and consideration

The proper construction of s 36(2)(aa)

216    First, DFO19 addressed its construction of s 36(2)(aa) and in particular the words “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country”.

217    DFO19 contends those words assume removal from Australia but not any particular form of removal. On that basis, a decision-maker has to proceed on the assumption that removal from Australia will occur.

218    An alternative construction which DFO19 accepts is open on the text of the section, is that the words “being removed from Australia to a receiving country” represents a factual component of the criteria the applicant must satisfy, ie: an applicant must prove they will be removed and if they cannot prove removal, they fail to establish that criterion. As I understand the submission, the fact of removal (of whatever type) must be established as a threshold issue.

219    DFO19 presses its primary construction, ie: an assumption that removal will occur, based on the text and context of the section: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91].

220    As to the text, the contention is that it is the assumption of removal that feeds into what the decision-maker is directed to do which is to examine the necessary and foreseeable consequences of that removal. DFO19 submits the language of s 36(2)(aa) suggests promptness by use of the words “necessary and foreseeable consequences”. As I understand the submission, that can only occur if removal from Australia to a receiving country is assumed.

221    As to context, DFO19 submits that a “person” is in Australia and does not want to be “removed” as required by s 198 of the Act.

222    Relying on the text of s 36(2)(aa) in context, DFO19 contends the Tribunal misapplied the section.

223    Counsel for DFO19 accepted during the course of submissions that a consequence of a construction of s 36(2)(aa) that requires an assumption of removal to be made, is that the decision-maker has to consider the position of a person being removed in circumstances where no agreement exists for Iran to receive that person.

224    For the reasons I have set out above, I consider that the proper construction of s 36(2)(aa) does not require the consideration of any mode of removal from Australia irrespective of whether that mode is possible or not. To that extent, the section does not require the decision-maker to consider a mode of removal which is hypothetical.

The proper application of s 36(2)(aa)

225    Next, DFO19 addresses the Tribunal’s reasons, referring to Reasons [54], [55] and [57] where the Tribunal turned its mind to considering the circumstances faced by DFO19 in returning to Iran as a failed asylum seeker and noted DFO19’s statement that if he had to return to Iran, he would not do so voluntarily. The Tribunal found that:

… into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. For this reason, if the applicant persists not returning voluntarily I find that he would not return and as such would not face a real chance of serious harm or a real risk of significant harm. Alternatively, despite his insistence that he would not voluntarily return, I have also considered the circumstances if he was to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including his extended period abroad.

226    DFO19 refers to the last sentence of the passage of the Tribunal’s reasons extracted above as demonstrating the Tribunal’s error. DFO19 submits the Tribunal is not engaging with a claim made, because DFO19 had stated he would not return voluntarily, nonetheless, the Tribunal considered the claim based on a voluntary return.

227    DFO19 submits that by his statement that if he had to return to Iran he would not do so voluntarily, it is implied that DFO19’s return to Iran would be involuntary which is a claim not dealt with by the Tribunal. As I understand the submission, that is because the respondent contends s 36(2)(aa) requires an assumption of all types of removal, a construction I have rejected.

228    For the reasons I have set out above in APM19, I do not accept the construction advanced by DFO19 that s 36(2)(aa) requires the decision-maker to assume a particular mode of removal will occur in circumstances when there is a finding that a particular mode of removal is not possible.

229    In this matter, the Tribunal has identified that DFO19 will not return to Iran voluntarily but nonetheless dealt with a voluntary return in assessing whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Iran, there is a real risk that DFO19 will suffer significant harm. As with APM19, the Tribunal did not commit an error of law by not considering further the possibility of involuntary return since it had found that was not possible. In the circumstances voluntary removal was the only mode of removal that might occur in the foreseeable future and it was that task which the Tribunal had to address when considering s 36(2)(aa). In so doing, the Tribunal did not make an error of law.

Did the Tribunal apply s 36(2)(a) correctly

230    The remaining point made by DFO19 concerns the Refugee Convention and s 36(2)(a). Section 36(2)(a) is concerned with the Refugees Convention whereas s 36(2)(aa) represents Australia’s complementary protection obligations.

231    DFO19 accepts that the section requires consideration as it stood prior to the 2014 amendments which is in the following terms:

(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 under the Refugees Convention as amended by the Refugees Protocol;

232    Article 1A(2) of the Refugees Convention provides (relevantly) that the term “refugee” applies to any person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …

233    The Article sets up a number of requirements, the first of which is that in this case, DFO19 is outside Iran as a result of a well-founded fear of being persecuted for a Convention reason. The second requirement is that owing to the well-founded fear of being persecuted for a Convention reason, DFO19 is unwilling or unable to avail himself of the protection of Iran.

234    It is well-settled that the “protection” to which reference is made in the Convention is external protection in the form of diplomatic or consular protection extended abroad by a country to its nationals: Minister for Immigration v Khawar [2002] HCA 14, (2002) 210 CLR 1 at [21] (Gleeson CJ); Minister for Immigration and Multicultural Affairs v Respondent S152/2003 [2004] HCA 18, (2004) 222 CLR 1 at [19] (Gleeson CJ, Hayne and Heydon JJ).

235    DFO19 accepts that the first requirement falls to be considered on the facts as at the time when the person in question seeks recognition as a refugee: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386-387 (Mason CJ).

236    That necessarily results in DFO19’s claim being assessed on the basis that the reason he is currently out of Iran is for a well-founded fear of persecution for a Convention reason.

237    DFO19 submits that in considering the requirements of s 36(2)(a), the decision-maker was obliged to consider the hypothetical return of DFO19 to Iran as an involuntary returnee.

238    I do not accept that submission for the same reasons as set out above in relation to s 36(2)(aa). To require the decision-maker to hypothesise an involuntary return in the particular circumstances of this matter is not only to require speculation, it is speculation without limits.

239    Given the Tribunal found that the only way DFO19 would return to Iran was voluntarily, the question the Tribunal considered was whether there was a well-founded fear of persecution for a Convention reason upon DFO19’s return to Iran as a failed asylum seeker. On the information before the Tribunal, it decided there was not.

240    The Tribunal’s decision is not affected by jurisdictional error.

CONCLUSION ON DFO19

241    For the reasons set out above, the appeal should be dismissed. There is no reason why costs should not follow the outcome in the usual way.

Associate:

Dated:        15 March 2023