FEDERAL COURT OF AUSTRALIA

MZYUL v Minister for Immigration and Citizenship [2013] FCA 584

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The order made on 7 September 2012 by the Federal Magistrates Court be set aside, and in lieu thereof:

(i)    It be declared that, in recommending to the first respondent that the appellant should not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”), the second respondent made an error of law, in that she failed to observe the requirements of procedural fairness by denying to the appellant the opportunity to be heard as to matters which the second respondent took into account in determining that the extent of any harm that the appellant may suffer on return to Iran would be limited to questioning and perhaps a fine.

(ii)    It be declared that, in recommending to the first respondent that the appellant should not be recognised as a person to whom Australia has protection obligations under the Convention, the second respondent made an error of law, in that in determining whether the appellant had a well-founded fear of persecution by reason of being a member of a social group of failed asylum seekers returning to Iran, the Reviewer found that any harm the appellant would suffer in Iran would be limited to questioning and perhaps a fine in the absence of any evidence or other material to justify the finding made.

(iii)    The first respondent pay the appellant’s costs of the application in the Federal Magistrates Court.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court (now the Federal Circuit Court of Australia) published as MZYUL v Minister for Immigration and Citizenship [2012] FMCA 799. In that judgment, the primary Judge dismissed the appellant’s application for relief, including for a declaration that the decision of a merits reviewer appointed by the first respondent (“the Reviewer”), was not made in accordance with law, and an injunction restraining the first respondent (“the Minister”) from relying upon the recommendation of the Reviewer.

2    The task of the primary Judge in dealing with the judicial review proceeding brought by the appellant was to determine whether the review by the Reviewer was conducted according to law, including by affording procedural fairness to the appellant: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [8] (the Court).

3    The task of this Court, by reference to the appellant’s grounds of appeal, is to determine whether the primary Judge erred.

BACKGROUND

4    The appellant is a citizen of Iran who arrived in Australia on 20 September 2010. He is an “offshore entry person” and an “unlawful non-citizen” for the purposes of the Migration Act 1958 (Cth) (“the Migration Act”), as a result of his arrival at an excised offshore place without a visa or other legal right to enter Australia. Pursuant to s 46A(1) of the Migration Act, an unlawful non-citizen cannot make a valid visa application. However, s 46A(2) empowers the Minister to lift that bar and permit such a person to validly apply for a visa.

5    In considering whether to exercise the power under s 46A(2), the Minister has established an administrative process described in detail in Plaintiff M61 at [38]-[52] and [73]. Under that process the potential visa applicant is assessed, firstly by an officer of the Minister’s Department. The officer conducts a Refugee Status Assessment (“RSA”). Persons appointed by the Minister to review the decisions of officers are designated as “reviewers”. Those persons review the RSA where a request is made by a potential visa applicant. The Reviewer was such a person.

6    The RSA and any review by a reviewer inquire as to whether the potential visa applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together “the Convention”). The purpose of the administrative process is to make a recommendation to the Minister as to whether the potential visa applicant is a person to whom Australia has protection obligations under the Convention.

7     The appellant’s RSA recommended that the appellant should not be recognised as a person to whom Australia has protection obligations. The appellant subsequently requested that a review be conducted. The review was conducted by the Reviewer and on 17 December 2011, the Reviewer made a recommendation (“the recommendation”) accompanied by a statement of reasons (“the reasons”), which recommended to the Minister that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention. The appellant subsequently applied for judicial review of the recommendation. As set out above, his application was dismissed.

THE ISSUES RAISED ON THE APPEAL

8    Of the various claims made by the appellant before the Reviewer, only one is relevant to the issues raised by this appeal. The appellant claimed a well-founded fear of persecution on the basis that if he were returned to Iran as a failed asylum seeker from a Western country, he would face persecution for a Convention reason. The Convention reason relied upon to sustain that particular claim was that the appellant was a member of a particular social group namely, failed asylum seekers returning to Iran from a Western country.

9    In rejecting that claim, the Reviewer made a finding which is of central importance to each of the issues raised on the appeal. After accepting that if returned to Iran:

(i)    there is a chance that the Iranian authorities will know that the appellant had sought asylum in Australia;

(ii)    there is a chance that the authorities at the airport will know of the appellant’s 1996 criminal conviction (for being in the same house as an unrelated female); and

(iii)    that the appellant would be returned without the passport with which he left Iran

The Reviewer made the following finding (“the central finding”):

… I find that if the claimant returns to Iran and is questioned at the airport, while there is a chance that he would be identified as a failed asylum seeker returned from a Western country, who in 1996 received a sentence of 60 lashes, I am satisfied that any harm the claimant would suffer in Iran would be limited to questioning and perhaps a fine …

10    That finding was the basis for the Reviewer’s rejection of the appellant’s claim because the Reviewer held that any questioning of the appellant and any imposition of a fine would be by reason of:

(i)    a law of general application to people returning to Iran without the documents with which they left Iran and not for a Convention reason; and

(ii)    being questioned or perhaps fined, would not constitute “persecution” involving “serious harm” and thus the Convention would have no application by reason of Section 91R(1)(b) of the Migration Act.

11    The primary Judge relevantly held that:

(i)    the appellant was denied procedural fairness when he was not given the opportunity to respond to the proposition ultimately relied upon by the Reviewer that he might be fined on being returned to Iran as a failed asylum seeker who had left the country legally (at [65]) (“the procedural fairness finding”);

(ii)    whilst there was no evidence to support the finding made by the Reviewer that the appellant might be fined on return to Iran, there was evidence that it was uncertain what, beyond questioning, he might suffer (at [67]) (“the no evidence finding”);

(iii)    the finding that the appellant may be fined was not critical to the Reviewer’s conclusion that the appellant would not suffer serious harm and that any harm that the appellant faced was a result of the application to him of a law of general application and as such, any denial of procedural fairness “would not have a material bearing on the outcome and to grant relief on that basis would not be an appropriate exercise of discretion because of the finding that the [appellant’s] claim lacked the requisite Convention nexus” (at [69]-[70]) (“the exercise of discretion to refuse relief”); and

(iv)    further, “the error of the Reviewer in finding that the [appellant] might face a fine on his return to Iran does not mean that the Reviewer failed to understand or deal with his claim in relation to a risk of ‘facing serious harm for reasons of imputed political opinion’ should he return to Iran. The applicant’s own profile both before and since leaving Iran were relevant considerations in determining if he might face a real risk of serious harm for reasons of imputed political opinion” (at [71]) (“the finding that the Reviewer had not misunderstood the appellant’s claim”).

the procedural fairness finding

12    This finding is the subject of a Notice of Contention filed by the Minister. The Minister contends that there was no denial of procedural fairness and that the primary Judge erred in making that finding. For the following reasons I reject the contention that the primary Judge erred in relation to the procedural fairness finding.

13    The finding of a denial of procedural fairness was based upon the primary Judge’s satisfaction that the appellant had not been given an opportunity to respond to material which led the Reviewer to make the central finding that any harm the appellant would suffer was limited to questioning and perhaps a fine.

14    It is not contentious that the central finding made by the Reviewer was purportedly based on country information contained in section 7.7 of a Danish Immigration Service Report on Iran published in April 2009 (“the Danish Report”). Section 7.7 is headed “Entering Iran”. It contains eight paragraphs the last of which states:

A person entering Iran on a laissez passer, issued by an Iranian representation abroad, might be fined for illegal exit or subjected to one to two hours interrogation. The source did not know if there might be any further consequences in relation to the interrogation.

15    At [114] of the Reviewer’s reasons, the Reviewer referred to sections 7.7 and 7.8 of the Danish Report in support of the Reviewer’s observation that returnees may be fined. Section 7.8 of the Danish Report does not deal with fines at all. The only reference to the imposition of a fine in section 7.7 is that contained in the paragraph extracted above.

16    Submissions were made to the Reviewer by the appellant’s legal advisors including by correspondence. In correspondence dated 29 July 2011 from the appellant’s legal advisers to the Reviewer (“the July correspondence”), the appellant’s legal advisors referred to the Danish Report, but not to section 7.7 or any part of the Report dealing with the imposition of fines.

17    After the Reviewer interviewed the appellant, the Reviewer corresponded with the appellant’s legal advisers on 4 November 2011 (“the November correspondence”). In that correspondence and as part of the review process, the Reviewer sought the appellant’s response to a wide range of extracts from various country information reports across a range of topics. Under the heading “Returnees to Iran”, the Reviewer sought the appellant’s response to the Reviewer’s summary of country information contained in a number of reports. That summary twice referred to section 7.7 of the Danish Report. The first reference related to Iranian citizens abroad applying for a passport or other travel document. The Reviewer’s second reference stated:

It is reported that on return, failed asylum seekers are questioned.

18    The summary made no reference at all to any information dealing with the possibility of returnees being fined or to the extent of any harm which a returnee may suffer. The summary referred to country information which was generally supportive of the appellant’s claim of a well founded fear of persecution as a failed asylum seeker, including statements made by a former Iranian Supreme Court judge that failed asylum seekers could be prosecuted for making up accounts of alleged persecution.

19    The Minister contended that the appellant should have been aware of the content of the relevant parts of the Danish Report relied upon by the Reviewer to arrive at the central finding. The Minister relied upon the July and November correspondence between the Reviewer and the appellant’s legal representatives as the basis for contending that the fair hearing doctrine was complied with.

20    In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, French  CJ and Kiefel J identified the requirements of procedural fairness in the following passage at [9]:

Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. (Citations omitted)

21    In Re Refugee Review Tribunal and Another; ex parte Aala (2000) 204 CLR 82 McHugh J stated at [101] that:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.

22    The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [56] (Hill, Sundberg and Stone  JJ). That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629, as “credible, relevant and significant to the decision to be made”.

23    The authorities to which I have referred make it abundantly clear that in the circumstances of this case, it was necessary for the Reviewer to have given the appellant the opportunity to deal with the matters considered by the Reviewer to be adverse to his interests, which the Reviewer proposed to take into account in finding that the harm that may be suffered by the appellant on his return to Iran would be limited to questioning and perhaps a fine.

24    The primary Judge recognised that obligation upon the Reviewer and was correct to find that the appellant was not given the opportunity to respond to the central finding: see at [64]-[65].

25    Even if it may be presumed, as the Minister contended, that the appellant was (through his advisors) aware of the contents of the Danish Report including section 7.7, it was necessary for the Reviewer to identify to the appellant the particular information in the Danish Report which the Reviewer considered may be the basis of an adverse finding. No such notification was given in the November correspondence. That correspondence sought a response to parts of section 7.7 of the Danish Report that the Reviewer told the appellant she would consider. The parts of section 7.7 to which the appellant was specifically directed did not deal with the possibility of a fine let alone the proposition that a fine would be at the outer limit of the harm that might be occasioned upon a returned asylum seeker. The appellant was entitled to assume from the November correspondence that the Reviewer was not asking for his response to matters dealt with in section 7.7 to which his attention was not specifically directed. In any event, although section 7.7 referred to the possibility of a fine in the passage which I have extracted at [14], that passage did not deal with the potential harm that may be occasioned by a failed asylum seeker returning to Iran.

26    Procedural fairness required the Reviewer to put before the applicant “the substance of matters that the [R]eviewer knew of and considered may bear upon whether to accept the [appellant’s] claims”: Plaintiff M61/2010E at [91] (the Court). The substance of the legal and factual concern needed to be disclosed: Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 195 FCR 318 at [64] (Keane CJ, Lander and Foster JJ). That was not done in this case and as a result the appellant was not given an opportunity to respond to material which the Reviewer relied upon to conclude that questioning and a possible fine would likely be the extent of any harm that he faced on his return to Iran as a failed asylum seeker. A “practical injustice has been shown”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38] (Gleeson CJ).

The primary Judge’s exercise of discretion to refuse relief

27    Despite the finding made that the appellant was denied procedural fairness, the primary Judge declined to grant relief on the basis set out at subpara (iii) of [11] above.

28    The appellant contented that the primary Judge erred in the exercise of her discretion to refuse relief. The appellant contended that the primary judge erred:

    in the test she applied in the exercise of her discretion; and

    in her findings about the impact of the breach of procedural fairness on the Reviewer’s conclusion.

29    Having surveyed the relevant authorities Hill, Sundberg and Stone JJ concluded at [81] of VAAD that in Aala the High Court accepted the principle that had earlier been stated in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147, that relief for procedural unfairness should only be refused if the court could say that a properly conducted hearing could not have yielded a different result. Echoing the test stated in Stead, their Honours said that a court should refuse relief for a breach of natural justice “only if the breach could not have affected the outcome”.

30    The Full Court in VAAD at [81] further relied upon what Kirby J said in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, stating at [85]:

Every person, in respect of whom material decisions are made by a repository of public power conferred by the Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes, relevantly to this case, in accordance with the requirements of procedural fairness. The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker's consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.

31    On occasions, the relevant principle has been expressed in terms of futility. For instance in Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181, Besanko J (with whom Moore and Buchanan JJ agreed) said at [47] that “futility is a ground upon which a court may exercise its discretion to refuse relief”.

32    The Minister contended that if the appellant had been denied procedural fairness in the manner contended, the grant of relief should nevertheless have been declined by the primary Judge because no useful result could ensue. In that respect, the Minister relied on an observation made by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [29]. In making that observation, their Honours referred to the judgment of Gaudron and Gummow JJ in Aala. I do not understand the observation relied upon by the Minister to be any more than a restatement of the test propounded in both Stead and in Aala, that relief for procedural unfairness should only be refused if the court is satisfied that the breach could not have affected the outcome.

33    If the appellant had been given the opportunity to respond to the possibility that the central finding would be made in reliance upon the information in section 7.7 of the Danish Report, the appellant could have pointed out to the Reviewer that section 7.7 was not dealing with returned asylum seekers. He could have identified to the Reviewer that not only would he be returning without the travel documents with which he left Iran, but that his circumstances as a returned asylum seeker were likely to be viewed as more grave than those of the category of persons dealt with by section 7.7 of the Danish Report. If the Reviewer had been disabused of her view as to the applicability of the information in section 7.7 to the circumstances of the appellant, she may have come to a different conclusion as to the finding made at [118] that:

…I am satisfied that the questioning and perhaps a fine would be for the reason of [sic] application of a law of general application to people returning to Iran without the documents with which they left Iran, and not because of systematic and discriminatory treatment for a Convention reason…

34    A finding as to the nature of the harm likely to be inflicted on a person is potentially probative of the reason why the harm is likely to be inflicted. The manner in which the Reviewer addressed the likely harm and the likely reasons for it suggest to me that such a potential was probably engaged in this case. However, whether or not that was so, the primary Judge should nevertheless not have been satisfied that the denial of procedural fairness could have had no bearing upon the result arrived at by the Reviewer.

35    Her Honour’s expression of the test (no “material bearing on the outcome”) has echoes of the appropriate test, but the basis given at [70] for the refusal to exercise the discretion reveals that a different test was applied. The primary Judge declined to grant relief “because of the finding that the Applicant’s claim lacked the requisite Convention nexus”. The primary Judge failed to consider the possible connection between the breach of procedural fairness and the finding made that there was no Convention nexus. Such a connection did arise in this case and in light of that connection, it was not possible to be satisfied that the outcome could not have been affected.

36    In terms of the principles identified in House v R (1936) 55 CLR 499 at 504-5, the primary Judge acted on a wrong principle. That led to the erroneous exercise of the discretion to refuse relief.

37    In light of my finding of error, the appeal should be allowed. I will make a declaration that, in recommending to the Minister that the appellant should not be recognised as a person to whom Australia has protection obligations under the Convention, the Reviewer made an error of law, in that she failed to observe the requirements of procedural fairness, by denying to the appellant the opportunity to be heard as to matters which the Reviewer took into account in determining that the extent of any harm that the appellant may suffer on return to Iran would be limited to questioning and perhaps a fine.

38    Whilst I have a discretion to decline the grant of such relief, I would not exercise that discretion for the same reasons that the primary Judge should not have refused relief.

39    Lastly, I should add for the sake of completeness that I do not accept the Minister’s contention that the finding at [117] of the Reviewer’s reasons (that the appellant’s profile would not generate systemic and discriminatory treatment for Convention reasons) is an independent basis for supporting the outcome arrived at by the Reviewer. That finding seems to me to be directed to whether political or religious reasons may be the basis for persecution and not at all directed to the appellant’s claim based upon the appellant being a member of a social group of failed asylum seekers.

NO EVIDENCE Ground

40    The central finding was also the basis for the no evidence ground relied upon by the appellant. Although the appellant’s grounds of appeal are somewhat ambiguous as to whether a no evidence finding was made by the primary Judge, as propounded on the appeal, the appellant’s position was that such a finding was made and is the finding set out at subpara (ii) of [11] above. The appellant contended that having made the no evidence finding, the primary Judge erred in refusing relief. The Minister by his Notice of Contention contended that there was at least some evidence to support a finding that the appellant “might be fined on return to Iran”.

41    Some ambiguity is created by the manner in which the primary Judge expressed the Reviewer’s finding, in relation to which she seems to have been satisfied that there was no supportive evidence. At both [65] and [67], the relevant finding was expressed as a finding that the appellant “might be fined” on returning to Iran. The finding actually made by the Reviewer at [117] was that any harm that the appellant would suffer would be limited to questioning or perhaps a fine. That is the finding, to my mind, to which the primary Judge was addressing herself at [67].

42    It appears to me that there are three questions to determine on this aspect of the appeal as follows:

(i)    Was there any evidence before the Reviewer to support the finding that any harm the appellant would suffer would be limited to questioning and perhaps a fine?

(ii)    If there was no evidence, was the fact in question an essential pre-condition to the exercise of the jurisdiction conferred by the Migration Act to determine whether a protection visa should be issued?

(iii)    If so, should the primary Judge have refused to grant relief?

43    The Minister relied upon a range of material to support the contention that there was at least some evidence or other material before the Reviewer to support the central finding. The Minister contended that a no evidence finding could only have been made by the primary Judge if there was no evidence at all upon which the finding could have been based. The appellant argued that the “no evidence at all” test was satisfied contending, correctly in my view, that acting without probative evidence is the equivalent of acting without evidence: Skiwing Pty Ltd v Trust Co of Australia (t/as Stockland Properties Management) [2006] NSWCA 276 at [52]-[53] (Spigelman CJ, with whom Hodgson and Bryson JJA agreed); Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at [25]-[26] (Gleeson CJ); SZRCI v Minister for Immigration and Citizenship (No 2) [2012] FCA 1291 at [31] (Flick J); and see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124] (Crennan and Bell JJ).

44    An insufficiency of evidence or other material does not sustain a no evidence finding. The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[37] (Spender, Tamberlin and Kenny JJ); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J).

45    The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [41] (Gummow and Hayne JJ, with whom Gleeson J agreed); Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [31] (Tracey J).

46    The Minister relies upon the following evidence or other material before the Reviewer:

    evidence that the appellant did not have the profile of a person who had been politically involved or engaged in problematic religious activity;

    evidence contained in the Danish Report that a person returning on a laissez-passer may face questioning;

    evidence that the appellant had left Iran legally and material in the Danish Report that a person returning on a laissez-passer who had left Iran legally will not face any problems when returning;

    material in the Danish Report that a person returning on a laissez-passer who had not committed any illegal offences before leaving Iran will not have problems with the authorities upon return; and

    the paragraph from the Danish Report set out at [14] above to the effect that a person returning to Iran on a laissez-passer might be fined for illegal exit or subjected to one or two hours interrogation.

47    The Minister’s contentions acknowledged that the material upon which he relied did not specifically address the position of returnees to Iran who had claimed asylum in another country. Nonetheless, so the Minister argued, it could not be said that the Danish Report was not at least some evidence about the position of returnees, including those who had claimed asylum whilst abroad.

48    Evidence which does not directly or specifically address the subject matter of a factual finding may nevertheless be probative evidence if it was open to the decision-maker to reasonably infer from that evidence the fact or condition relied upon. The material relied upon by the Minister from the Danish Report dealt with the nature of the harm that may be expected to be inflicted on a person who no longer held the travel documents with which the person left Iran and who was returning on a laissez-passer. There was no material before the Reviewer which provided a basis for any suggestion that persons generally returning to Iran on a laissez-passer would be treated in the same or similar manner as persons returning to Iran as failed asylum seekers. The gravity of any likely harm which may be occasioned on returnees to Iran is likely to be a reflection of the perception of the Iranian authorities of the gravity of the conduct of the returnee. In the absence of material which provided a basis for an inference that returning as a failed asylum seeker was likely to be regarded by Iranian authorities as of comparable gravity to returning on a laissez-passer, evidence as to the nature of the harm likely to be inflicted upon a person in the latter category was not any evidence at all of the extent of harm that may be inflicted upon a person returning to Iran as a failed asylum seeker.

49    The same conclusion can be made in relation to the evidence of the appellant’s profile. That evidence dealt with the nature of the appellant’s political and religious conduct. It did not deal with the conduct in question namely, the making of an application for asylum in a Western country. It may well be the case that a person returning as a failed asylum seeker in the context of a multitude of other perceived sins is likely to be the subject of more extensive harm than a person who simply returns as a failed asylum seeker. However, the absence of other perceived sins does not provide any evidence as to the extent of harm that may be inflicted upon a returned asylum seeker for the reason that the person applied for asylum in another country.

50    For those reasons, I reject the Minister’s challenge to the finding made by the primary Judge that there was no evidence to support the Reviewer’s finding that any harm the appellant would suffer in Iran would be limited to questioning and perhaps a fine.

51    That brings me to the second question. The fact for which there must be “no evidence” must be “a precondition to the exercise of jurisdiction”: SGLB at [39] (Gummow and Hayne JJ, with whom Gleeson CJ agreed). The cases in which the “no evidence” ground has been treated as a separate ground of invalidity have been cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact and where there was no evidence of that fact: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [12] (Wilcox, Marshall and Jacobson JJ).

52    The jurisdiction to issue a protection visa under s 65 by reference to the criteria specified in s 36(2) of the Migration Act, is dependent upon the decision-maker’s satisfaction that Australia has protection obligations under the Convention to the applicant for the visa. That satisfaction is, in turn, dependent upon whether or not the applicant for the visa has a well-founded fear of persecution for a Convention reason. An essential element in the decision-maker determining whether or not a well-founded fear of persecution exists, is a finding as to the nature of any harm likely to be inflicted upon the applicant should the applicant be returned to his or her home country. Without such a finding a rational conclusion as to whether or not the applicant holds a well founded fear of persecution is not able to be made.

53    Such a finding, it seems to me, is an essential precondition to the exercise of the jurisdiction conferred by s 65 to determine whether or not to issue a protection visa in accordance with the s 36(2) criteria.

54    The central finding made by the Reviewer was a finding about a fact which was an essential precondition to the exercise of the jurisdiction the subject of the recommendation. In making the recommendation, the Reviewer had to “proceed by reference to correct legal principles, correctly applied”: Plaintiff M61/2010E at [78] (the Court). The Reviewer failed to do so because despite there being no evidence to support a fact which is an essential precondition to the exercise of the jurisdiction in relation to which the recommendation was made, the Reviewer made a finding as to that fact.

55    The appellant was entitled to a declaration to that effect from the primary Judge, unless relief should have been refused in the exercise of the primary Judge’s discretion.

56    The reasons of the primary Judge show that no specific consideration was given to whether relief should be refused in the exercise of her discretion. It seems to me that the primary Judge did not reach the stage of considering relief because although she was satisfied that there was no evidence to support the central finding (at [67]), she determined that the Reviewer’s “conclusion as to the degree of seriousness which could be attributed to any harm which might befall the [appellant] on return to Iran was a matter for the Reviewer” (at [68]).

57    That determination was arrived at without the primary Judge considering whether the fact in question was an essential precondition to the exercise of jurisdiction. Given that the fact was an essential precondition for which there was no evidence, the primary Judge should not have dismissed it as “a matter for the Reviewer”. In that respect, her Honour erred and the appeal should be allowed on the no evidence ground.

58    The Minister contended that if error was established, this Court should decline the grant of relief. It was contended that the findings made as to the absence of a Convention nexus and as to s 91R(1)(b) and (c) constituted a separate basis for the Reviewer’s recommendation and that no useful result could ensue from the grant of the relief sought.

59    The relief I intend to provide is a declaration that, in recommending to the Minister that the appellant should not be recognised as a person to whom Australia has protection obligations under the Convention, the Reviewer made an error of law, in that in determining whether the appellant had a well-founded fear of persecution by reason of being a member of a social group of failed asylum seekers returning to Iran, the Reviewer found that any harm the appellant would suffer in Iran would be limited to questioning and perhaps a fine in the absence of any evidence or other material to justify the finding made.

60    If I considered that there was an independent basis upon which the recommendation made by the Reviewer was legally justifiable, I would have declined that relief. In the absence of a valid finding of an essential fact as to the likely harm that may be inflicted upon the appellant should he be returned to Iran, the ultimate finding made by the Reviewer that the appellant did not have a well-founded fear of persecution for a Convention reason, cannot be sustained. There is no basis for the Court to decline the grant of relief.

Misunderstanding of claim

61    The finding of the primary Judge that the Reviewer had not misunderstood the appellant’s claim as a failed asylum seeker was also the subject of the appellant’s challenge. The erroneous approach to the central finding made by the Reviewer was also the basis for this ground of challenge. It seems to me that it is unlikely that the erroneous approach in relation to that finding led to a failure by the Reviewer to understand and therefore deal with the appellant’s claim relating to the risk he faced as a failed asylum seeker. Despite the error made by the Reviewer in dealing with the claim, the reasons of the Reviewer suggest to me that the Reviewer understood and dealt with the claim made.

62    If it were necessary to determine this ground of challenge, I would be inclined to that view. However, given that the appellant has succeeded on other grounds it is not necessary that I express a final view on this ground of appeal.

Relief

63    In light of my findings, the appeal must be allowed. The orders of the primary Judge made on 7 September 2012 that the application be dismissed should be set aside.

64    I will make the declarations which I have earlier identified at [37] and [59]. I will also make an order that the Minister pay the appellant’s costs of the appeal and of the application in the Federal Magistrates Court.

Associate:

Dated:    14 June 2013