FEDERAL COURT OF AUSTRALIA

MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

1    The Federal Circuit Court (FCC) dismissed the appellant’s application under s 476 of the Migration Act 1958 (Cth) for judicial review of the recommendation of an Independent Merits Reviewer (IMR) on 4 July 2012 that he not be recognised as a person to whom Australia has protection obligations: MZZGB v Minister for Immigration and Border Protection [2014] FCCA 1019.

2    The appellant now appeals against that decision.

Background

3    The appellant was born in 1980 in Iran. He arrived at Christmas Island by boat on 5 October 2010 and sought a protection visa, claiming protection under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Convention).

4    Section 36 of the Migration Act provides for the grant of protection visas. Subsection (2), which is relevant presently, provides:

(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;

…

5    As can be seen, subpar (a) refers to persons to whom Australia has protection obligations under the Convention, and subpar (aa) to persons to whom Australia has protection obligations because of the Minister’s belief, on substantial grounds, that there is a real risk of them suffering “significant harm” as a necessary and foreseeable consequence of being removed from Australia. The latter is referred to as the “complementary protection provision”.

6    The term “significant harm” in subs (2)(aa) is elaborated in subss (2A) and (2B), as follows:

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

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

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

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

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

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

(2B)     However, there is taken not to be a real risk that a non-citizen will suffer     significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

    (b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

    (c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

7    The Refugee Status Assessment (the RSA) by the Department of Immigration and Citizenship dated 11 April 2011 concluded that the applicant was not a refugee as defined in the Convention with the effect that he did not satisfy the criterion in s 36(2)(a). An independent merits review was then undertaken by the Department’s Independent Protection Assessment Office. The appellant relied on both s 36(2)(a) and (aa) as the latter had come into operation on 24 March 2012, after the date of the RSA. The appellant relied on four matters in support of his application:

(a)    He had been stopped on a street in Tehran and struck by members of the Basij for being in company with a girl (Incident One);

(b)    On another occasion, he had been struck to the ground by members of the Basij for no apparent reason (Incident Two);

(c)    While he was accompanying his employer, who was delivering anti-government booklets and CDs to various locations in Tehran, the Basij stopped their car and commenced searching it. He had fled before the Basij had the opportunity to open parcels in the car boot, obtained refuge in a relative’s house, and then, with the assistance of others, travelled to Australia (Incident Three);

(d)    Since arriving in Australia, he had developed an interest in Christianity and had attended Christian churches. He intended to be baptised as a Christian and claimed that his change of religion put him at risk of serious harm if he is returned to Iran.

8    The IMR took an adverse view of the appellant’s credibility. At various times, the appellant had claimed that he was born in October 1993 with the effect that he had been treated as a minor on his arrival in Australia. He now acknowledges that he was just under 30 years old at the time of his arrival. In addition, the IMR considered that the appellant’s evidence about his background and experiences was internally inconsistent and implausible on various issues: at [161]. There was also evidence of some tampering with an identity document which the appellant had provided.

9    The IMR held that the appellant’s evidence concerning his conversion to Christianity did not form the basis of a sur place refugee claim, concluding that his only purpose was to strengthen his claim for a visa: at [186]. She therefore considered that the appellant would face no real risk of serious harm for reasons of religion in Iran, including interest in or conversion to Christianity, or abandonment of Islam: at [229].

10    It is implicit in the IMR’s reasons that she accepted that Incident One had occurred. However, the IMR concluded:

[190]    [T]he reviewer finds on the available evidence that this was a minor incident with no follow up action by the Basij or resulting in any adverse profile and that it formed discrimination rather than serious harm. The reviewer finds that it will not mean that the claimant has a record or profile with the Basij or that it forms any basis of a well-founded fear of harm now or in the reasonably foreseeable future.

(Emphasis added)

11    In relation to Incident Two, the IMR concluded:

[191]    [T]he reviewer finds on the available evidence that there was no explanation given by the Basij to the claimant for this action which was a random intimidatory action by the Basij and that it was discrimination and harassment (also acknowledged to be the case by the claimant) rather than serious harm and that it did not involve any adverse record or profile of the claimant with the Basij or that it forms any basis for a well-founded fear of harm now or in the reasonably foreseeable future.

(Emphasis added)

12    The IMR accepted the appellant’s account of the essential elements of Incident Three at [193]-[202], but also found that aspects of the account were based on assumptions:

[206]    The reviewer finds on the evidence available that when the claimant left the scene of the incident with the Basij he did not know what happened after he left the scene but that he has made assumptions about what he thought happened. The reviewer therefore finds that the claimant was unable to give first hand evidence about whether the Basij found the parcels in the employer’s vehicle boot, whether they opened them and discovered their contents, whether the contents were in fact anti-government material as his employer had told the claimant, whether the employer was arrested or detained, questioned, interrogated, tortured or imprisoned, or faced adverse consequences, whether the employer provided information to the Basij or other authorities about the employer’s own anti-government activities, whether the employer told the Basij or other authorities about the role of the claimant that night, or whether the employer had continued/resumed his business in the book shop without further incident.

[207]    The reviewer noted that the claimant has made assumptions about the events that followed his exit from the bridge and has reported these to the reviewer. The reviewer noted, in particular, that the claimant has assumed that the Basij found the anti-government material in the boot, arrested and tortured the employer and forced him to tell the Basij where the claimant lived which then prompted visits by the authorities to the building containing his family’s business/home.

13    The IMR went on to reject the appellant’s evidence that the Basij had later come to his home seeking him in relation to anti-government activity, and that he is perceived to be opposed to the government and to have engaged in behaviour unacceptable to the regime: at [211], [213], [220]. The IMR also rejected the appellant’s evidence that his family had told him of further visits by the Basij or the authorities to his home, apparently in search of him: at [212].

14    The IMR concluded:

[221]    The reviewer finds that the claimant is not targeted and will not be targeted in the reasonably foreseeable future in Iran for reasons of political opinion or imputed political opinion on the basis of suspected or actual anti-government activities, or that he is opposed to the government, or for unacceptable activities or behaviour.

    …

[225]    The reviewer finds, based on the findings above, that there is not a real chance the claimant will face serious harm due to imputed political opinion or political opinion in Iran in the reasonably foreseeable future.

15    This led the IMR to conclude that the appellant does not have a well-founded fear of serious harm amounting to persecution now, or in the reasonably foreseeable future, in Iran for any essential or significant Convention reason, either individually or cumulatively: at [234]. The IMR also concluded that the appellant did not satisfy the criteria for complementary protection under s 36(2)(aa). Accordingly, the IMR recommended that the appellant not be recognised as a person to whom Australia has protection obligations.

16    As previously noted, the FCC dismissed the appellant’s claim for judicial review of the IMR decision.

17    The Notice of Appeal to this Court contains four grounds, but the appellant abandoned ground three.

Failure to consider integers of the claim of “significant harm”

18    The appellant claims that the FCC should have found that the IMR had failed to consider two integers of his claim for complementary protection under s 36(2)(aa). The first was said to be the IMR’s omission to consider whether Incident One and Incident Two amounted to “significant harm”.

19    The applicable principles were not in issue. A failure by an administrative decision-maker to address “a substantial, clearly articulated argument relying on established facts” may amount to a denial of natural justice and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55]. In the latter case, the Full Court said, at [58]:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it …

There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated …

It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it …

The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

20    As already noted, after the complementary protection provision came into operation on 24 March 2012, the appellant made a claim for protection under that provision as well as under the Convention. That was in response to letters from the IMR of 3 April 2012 and 16  May 2012.

21    The appellant’s solicitor’s letter of 16 May 2012, by which the claim for complementary protection was made, addressed first some queries of the IMR relating to the appellant’s claim for protection under the Convention. The solicitor then continued with a submission that “the information provided in this submission” supported a conclusion that the appellant was entitled to complementary protection. The solicitor said:

For the purposes of complementary protection, we submit that the harm that the Applicant might encounter includes the following:

    Torture, i.e. an act or omission intending to inflict severe pain or suffering (physical or mental) for the purposes specified in the definition in Section 5(1) of the Act, those purposes being to punish and/or intimidate and/or extract information and/or a confession from our clients or a third person, and/or based on discrimination contrary to the ICCPR.

    Cruel or inhuman treatment or punishment, i.e. an act or omission intentionally inflicting severe pain or suffering but not for the purposes encompassed in the definition of torture, and/or pain or suffering that is not severe but is still cruel or inhuman.

    Degrading treatment or punishment, i.e. an act or omission intended to cause extreme unreasonable humiliation, for example, treatment that may arouse feelings of fear, anguish and inferiority capable of humiliating and debasing the person and breaking the Applicant’s physical or moral resistance, or driving them to act against their will or conscience.

…

In view of the high levels of human rights abuses in Iran by the Iranian regime there is a real risk that the Applicant will encounter one or more of the five types of significant harm set out in section 36(2A) of the Act.

22    The solicitor’s letter made no express reference to Incidents One and Two. Nor can those incidents be understood to have been incorporated by reference by the words “the information provided in this submission” as no mention of Incidents One and Two had been made in the earlier parts of the submission. Nevertheless, it is reasonable to understand the solicitor’s submission as being based on the information which the appellant had provided at his interview with the IMR on 24 January 2012, at which the solicitor had been present, and in the subsequent correspondence of the solicitor.

23    Counsel submitted that the IMR had failed to consider Incidents One and Two as an integer of his claim for complementary protection. There may be some scope for doubt as to whether Incidents One and Two were by themselves, integers of the appellant’s claim as opposed to part of the evidence said to support the integers of that claim. However, as I consider that this complaint cannot be upheld for other reasons, it is not necessary to address that question.

24    The FFC Judge rejected this submission, at [24], saying that “the simple answer” was that the IMR had found both incidences to be “minor” and that neither had given the appellant a profile with the Basij, or any basis to fear harm in the future. The FCC Judge continued at [24]:

In my view, there is no basis upon which a sustainable submission can be made that these two instances warranted consideration in the context of Australia’s obligations under the complementary protection provisions of the Act. Such a claim was never made by the applicant who had the assistance of the lawyers. It was not squarely raised or apparent from the evidence presented and the submissions made before the Reviewer. In any event there was a clear finding by the Reviewer that Iranians in general were subject to the arbitrary conduct of the Basij which, under s 36(2B)(c), precludes the claims against the Basij as [a] basis on which a successful claim for complementary protection can be made.

25    The appellant submitted that these reasons disclosed four errors: first, that while the IMR had characterised Incident One as “minor”, she had not characterised Incident Two in the same way. Instead, the IMR had characterised that incident as amounting to “discrimination and harassment … rather than serious harm”. Secondly, that even if both incidents were regarded “discrimination and harassment”, this would not foreclose a finding that, as a necessary and consequence of his removal from Australia to Iran, there was a real risk that he will suffer “significant harm”. Thirdly, the IMR’s finding that the incidents did not give the applicant a profile with Basij did not foreclose the question of whether they provided a basis for an entitlement to complementary protection. Finally, the FCC Judge had been wrong in finding that the IMR had reached the state of satisfaction required by s 36(2B)(c) of the Migration Act.

26    It is true that, in express terms, the IMR described only the first incident as “minor”. However, it is my opinion evident from [191] quoted earlier in these reasons that the IMR took a similar view of Incident Two.

27    More fundamentally, the appellant’s critique of the IMR’s reasons failed, in my opinion, to have regard to two important matters of context. The first is the overall structure of the IMR’s reasons. After stating the relevant legal principles, the IMR continued with a detailed summary and analysis of the appellant’s claims and of the evidence put forward to support them. The IMR then summarised relevant aspects of the Country Information before setting out, again in some detail, her findings and reasons. In this section, the IMR addressed first the applicant’s claim to protection under the Convention and made detailed findings of fact in relation to that claim. The conclusions of the IMR quoted earlier in this judgment, which include her findings in relation to Incident One and Two, are all contained in that section of the reasons.

28    Having found that the appellant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason, the IMR then considered the claim for complementary protection. It is unsurprising that in doing so, the IMR did not think it necessary to repeat her summary of, or conclusions with respect to, the evidence considered in relation to the claim for protection under s 36(2)(a). It is also unrealistic to suppose that the absence of repetition is an indication that the IMR, when considering the claim for complementary protection, did not have regard to the same matters about which she had already made findings. On the contrary, as will be seen shortly, the IMR incorporated by reference some of her earlier findings.

29    The second matter of context is that the IMR took as her framework for consideration of the claim of complementary protection the submissions made in support of that claim by the appellant’s solicitor dated 16 May 2012. As noted earlier, those submissions made no reference to Incidents One and Two. This too makes it understandable that the IMR did not consider it necessary to refer again explicitly to those incidents when considering the claim for complementary protection.

30    The IMR’s reliance on her earlier findings is evident in the following passages:

[241]    The reviewer considered the claimant’s overall evidence and, as stated above, the reviewer finds that the claimant may be questioned as a returnee to Iran, or as a failed asylum seeker or as a deportee. However, the reviewer finds that the country information does not indicate that he, in his particular circumstances and experiences as an Iranian national without any existing political profile or anti-regime profile, will be at real risk of significant harm as a necessary and foreseeable consequence of his return to Iran.

…

[243]    The reviewer notes that the approach of the Iranian authorities applies to the general population and that there is nothing about the claimant’s circumstances as a returnee, failed asylum seeker or deportee that would cause the reviewer to believe that there are substantial grounds for believing that there is a real risk of significant harm.

[244]     The reviewer finds as stated above that there are not substantial grounds for believing that the claimant is at risk of significant harm for being against the regime or against Islam.

[245]    The reviewer noted submissions that in view of the poor human rights record in Iran that there is a real risk that the claimant will encounter one or more of the five types of significant harm. …The reviewer noted that under the complementary protection provisions that there is not a real risk that the claimant will suffer [or] face significant harm at the hands of the Basij or other authorities in Iran, and any risk of harm at the hands of the Basij or other authorities is faced generally by the Iranian population.

[246]    The reviewer finds, as stated above that the claimant has not abandoned Islam and has not converted to Christianity but that he has recently attended Christian church activities in Australia. … The reviewer finds on the evidence available that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Iran that the claimant will suffer significant harm due to any abandonment of Islam or conversion to Christianity.

…

[248]    The reviewer finds, based on the evidence and findings above that there are not substantial grounds individually or cumulatively for the believing that as a necessary and foreseeable consequence for being removed from Australia to Iran that there is a real risk that the claimant will suffer significant harm …

(Emphasis added)

31    The IMR’s multiple references to her earlier findings and conclusion are to be noted. It is evident therefore that the IMR did, by cross reference, incorporate her consideration of Incidents One and Two into her assessment of whether the applicant satisfied the criterion in the complementary protection provision.

32    As to the fourth of the appellant’s complaints about the reasons of the FCC Judge, I note that the IMR did address directly the matter raised by s 36(2B)(c) in her reasons: at [245] set out above.

The omission to consider “the arrest warrants”

33    An internal departmental email indicated that the appellant had attended a departmental office on 19 April 2012 and had provided documents said to be arrest warrants. The email stated (relevantly) :

Client attended the DIAC office today and provided copies of the attached documents. He explained these documents are warrants for his arrest in Iran. He stated they were sent to him from his family in Iran.

I informed the client I would forward them onto you and that if you had any further questions you would be in contact with him.

It is evident that there were attachments to the email, but these were not included in the material provided to the FCC. It is convenient to refer to the documents to which the mail referred as “arrest warrants” but without thereby implying any conclusion that the documents are of that character.

34    The IMR made no reference to the email of 19 April or to the arrest warrants.

35    The appellant relied on the arrest warrants in two of his grounds of appeal: first, as an integer of his claim which he contended had not been considered; and secondly, in a submission that the IMR had failed to make enquiries about the claim. It is appropriate to address these complaints separately.

36    The appellant submitted that the question of whether he has an adverse profile with Iranian authorities was a “critical issue” in his claim and that the arrest warrants were capable of being directly relevant to, and highly probative of, his case on that issue. Accordingly, he submitted that the arrest warrants comprised an integer of his claim which should have been considered.

37    I note first some matters of history. The application for review originally filed in the FCC on 12 February 2013 did not raise any issue with respect to the arrest warrants. It is understandable therefore that the Court Book prepared by the Minister’s solicitors and filed on 16 April 2013 did not include the arrest warrants or translations of them. It did however include the email of 19 April 2012.

38    On 23 May 2013, the appellant, by his current solicitors, filed an amended application in the FCC which raised, as an additional ground, the IMR’s omission to consider the arrest warrants as an integer of his claim. On the same day, the applicant’s solicitors filed an outline of the submissions to be made on his behalf. In relation to the amended ground concerning the arrest warrants, the written submissions said:

[31]    On about 19 April 2012 the applicant provided to the Department what he described as warrants for his arrest in Iran (CB 143).

[32]    The Reviewer ultimately found that the applicant was not a person who was suspected by the Iranian regime or its agents of anti-government beliefs or activity or being opposed to the government (CB 208 [220]). In reaching this conclusion the Reviewer did not have regard to the applicant’s claim that he was subject to warrants for his arrest and/or the documentary evidence in support of this claim.

[33]    Again, it is submitted that this failure to consider an integer of a claim amounts to a jurisdictional error.

39    The Minister’s outline filed in the FCC on 9 December 2013 addressed the amended ground relating to the arrest warrants. The outline noted that the applicant had not made the arrest warrants part of his claim before the IMR with the effect that it could not be said that the IMR had failed to address a “substantial, clearly articulated argument relying upon established fact”.

40    Regrettably, despite the amendment of the application after the preparation of the Court Book and despite the respective written submissions, it seems that no attention was given to the provision of a supplementary Court Book containing the arrest warrants and a translation of them.

41    At the hearing before the FCC Judge, the appellant’s counsel drew attention to the fact that the arrest warrants were not in the Court Book. Counsel for the Minister indicated that the omission of the documents had not been raised earlier and enquired whether the appellant sought an adjournment of the hearing. Counsel for the appellant said that he was not asking for an adjournment but would ask the FCC Judge to accept that the appellant’s understanding of the documents, as communicated to the Departmental officer on 19 April 2012, was correct.

42    Counsel for the appellant elaborated in his oral submission the complaint that, by failing to consider the arrest warrants, the IMR had failed to consider an integer of the claim. It is evident that counsel’s submissions equated evidence in support of a claim with an integer of a claim. Counsel for the Minister interrupted the appellant’s submission and amongst other things, confirmed that the Department did have the documents.

43    In the course of his own submissions, counsel for the Minister repeated that the appellant’s previous legal advisors had not made the arrest warrants part of the appellant’s claim. He also referred to the appellant’s previous dishonesty and presentation of altered identity documents and queried whether the documents presented by the appellant were in fact arrest warrants as he claimed.

44    The FCC Judge concluded at [2] that “the issue of the warrants was not relevant”. He also noted that the appellant’s counsel had not accepted the offered adjournment so as to allow the Minister time to locate the warrants (and presumably to obtain a translation of them). Later, at [25], the FCC Judge said:

[25]    … In any event, after the inferred production of the arrest warrants on 19 April 2012, neither the Applicant nor his advisers appear to have subsequently relied upon these documents. The Reviewer made the finding that the Applicant was not perceived to have engaged in anti-government activities and would not be a target for such a reason in the future. As I understand [it], the Applicant now contends that if the Reviewer had the arrest warrants before her, untranslated as they were, it might be evidence of such a critical nature as to enhance the credibility of the Applicant in respect of his claims. If these documents were of such importance, on the face of them, and the Applicant seems to be suggesting same, it was for the Applicant and his advisers to make the case in this regard to the Reviewer. If they were genuine arrest warrants relating to him, it seems inexplicable that neither he nor his advisers subsequently relied upon them until, as stated before, the decision was critically combed through to find a basis, some basis, to justify a review. In my view, this ground must fail.

45    In addressing this ground of appeal, it is appropriate to keep in mind the basis of the appellant’s claim for protection. The appellant alleged, in effect, that he had engaged in dissident activity in Iran; that dissent of that kind was not tolerated in Iran; that his anti-regime activity had come to the attention of the Basij as a result of the incident in which his employer’s car had been stopped and searched, with the effect that he had a political profile; that he was “wanted” for his political activities; that he had already suffered some harm at the hands of the Basij as evidenced by Incidents One and Two; and that his abandonment of Islam and interest in Christianity were further reasons for him to fear persecution and/or significant harm if he returned to Iran.

46    It also appropriate to keep in mind the course of events in the independent review in the Department. The review commenced with an interview of the appellant by the IMR on 24 January 2012, with the assistance of an interpreter and in the presence of the appellant’s solicitors. Thereafter, the IMR, through members of her office, had frequent contact with the appellant’s lawyers in which the IMR invited submissions or comments on various aspects of the application. In particular, the IMR’s office drew attention to the complementary protection provision and invited a submission from the appellant in relation to a claim for such protection. The appellant’s solicitors responded with the letter of 16 May 2012 making a claim for complementary protection and providing submissions in support of that claim. These submissions were in addition to earlier written submissions of the appellant’s solicitors made on 13 February and 10 April 2012.

47    The solicitors did not refer to the topic of the arrest warrants in any of these submissions. Nor did they indicate that the documents provided by the appellant were relied upon by him in support of his claims.

48    In my opinion, the arrest warrants provided by the appellant were not an “integer” of his claim which had to be considered by the IMR. At the highest, they may have comprised some information or evidence supporting the integers of his claim just summarised, and, in particular, his claim that he was being sought by Iranian authorities. If they had been an integer of the claim it is natural to suppose that the appellant’s solicitors would not only have referred to them, but placed reliance on them. No explanation, such as oversight or a failure to appreciate their significance, has been proffered for their omission to do so. There is an incongruity in the Court being asked now to regard a matter as an integer of a claim when the appellant, who had the assistance of solicitors, did not refer to it as part of his claim.

49    There is a further reason why it cannot now be held that the documents were an integer of the appellant’s claim which had to be considered by the IMR. The characterisation of a claim as “a substantial, clearly articulated argument relying on established facts” or as having been raised “squarely” on the materials is to be determined objectively. Despite this, even now, the Court was not been provided with the documents themselves or a translation of them. On the assumption that the documents are genuine, this means that a number of matters are unknown: whether the documents are in fact arrest warrants; whether, if so, they relate to the appellant; and whether, if so, they have any connection to the appellant’s political activities. In the absence of information about these matters, it was not possible for the FCC Judge, and it is not possible for the Court now, to hold that, objectively considered, the documents provided by the appellant on 19 April 2012 were integers of his claim which had to be considered by the IMR.

50    It was for the appellant to make out his claim for judicial review. That an applicant bears the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness was described as “trite law” by Hill, Sundberg and Stone JJ in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. The appellant does not discharge that onus by pointing to the IMR’s omission to consider information the relevance and utility of which are unknown.

Ground Two: A failure to make enquiries

51    The appellant’s alternative ground with respect to the arrest warrants was that the FCC Judge should have found that the IMR failed to make her own enquiries about them “in circumstances [in which] it was obvious that material was readily available which was centrally relevant to the decision”.

52    Counsel acknowledged that an alleged failure by the IMR to make her own enquiries about the arrest warrants had not been a ground of the application in the FCC.

53    An appeal court has power to allow grounds to be argued on appeal which were not argued at first instance: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [23], citing H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; (2000) 63 ALD 43 at [6]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. However, as these authorities indicate, the circumstances in which the Court exercises that power in favour of an appellant are confined. In Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ said:

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

Leave to argue on appeal a ground not raised before the primary judge is granted only if it is expedient in the interests of justice to do so: VUAX at [46]. Leave will not be granted in respect of grounds which are unmeritorious.

54    I indicated to the parties that I would determine the appellant’s application to raise the new ground as part of the substantive reasons on the appeal.

55    In my opinion, the explanation for the point not having been taken before the FCC Judge does not support the appellant now being permitted to raise this ground. Counsel gave the following explanation in his written outline:

As to the reason for the ground not being raised below, it is noted that the arrest warrants were not before the Court. It is accepted that the appellant was offered an adjournment to allow the first respondent to search for the missing material. That offer was refused. Given the issue of the missing documentation had been squarely raised by the appellant some months before the hearing, it is submitted that the appellant was entitled to decline the adjournment and seek an adverse inference about the content of that material. Further, the appellant was entitled to avoid further delays to the determination of his application.

This submission indicates that counsel had recognised the potential significance of the arrest warrants to the appellant’s application and, when the possibility of an adjournment was raised so that the documents could be located, refused that offer.

56    Although counsel’s explanation goes more to the refusal of the offer of the adjournment than to the omission to raise this ground in the FCC, it does indicate that counsel made a conscious forensic decision about the way in which the appellant would rely on the arrest warrants in the hearing, which did not include pursuit of the present ground.

57    Secondly, the absence even now of the arrest warrants and a translation of them, gives rise to a real possibility that the Minister could have obtained evidence indicating that the point should not succeed: Coulton v Holcombe at 7-8. That evidence may have indicated for example, that the arrest warrants were plainly not genuine, or did not relate to the appellant at all, or related to matters entirely unconnected with political activity. The Minister has therefore been denied the opportunity of showing that, had the enquiries now suggested been made, the outcome could not possibly have assisted the appellant.

58    Although the authorities caution against a full consideration of the new ground at the stage the Court considers a grant of leave (see for example, SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [8]), the parties did address the merits and it is appropriate to express a view about them.

59    Counsel for the appellant did not point to any statutory basis for the obligation of the IMR to make the enquiries for which he contended. Instead he referred to two decisions involving applications under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167.

60    In Prasad, Wilcox J said at 170:

[I]n a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

61    Two matters distinguish Prasad from the present case. First, for the reasons already given, it is not possible for the Court to be satisfied that the search warrants are “centrally relevant” to the IMR’s recommendation, and, secondly, it is difficult to characterise the IMR’s decision as unreasonable when the appellant’s submissions to the IMR did not refer to the warrants at all. In addition, two further observations of Wilcox J in Prasad at 170, should be noted:

It is no part the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make enquiries.

Later, Wilcox J observed that in a case in which it was said that a decision-maker had unreasonably failed to have regard to information centrally relevant to the decision “the Court, on judicial review, should receive evidence as to the existence and nature of that information”. As already noted, in the present case even now the search warrants and a translation of them have not been provided.

62    Nor do I consider that Videto assists the appellant. It is not necessary to consider the decision of Toohey J in detail because of the High Court’s consideration of the question in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429. At [24] the plurality held:

[I]t is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.

The plurality went on at [25] to allude to the possibility that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, indicate a failure by a tribunal to discharge its review function. However, the plurality regarded it as unnecessary to decide the issue given the absence of any indication of what may have been revealed by the postulated further enquiries. For the reasons already given, the position is similar in the present case.

63    The appellant’s counsel pointed to the relative ease by which the IMR could have obtained a translation of the search warrants. I am prepared to assume that is so but the fact that it may have been reasonable for a decision-maker to make a certain enquiry, does not elevate the lack of such enquiry into jurisdictional error: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]. The present is not one of the “rare and exceptional” cases in which a decision-maker was under a duty of the kind for which this ground of appeal contends: Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60]; Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [28]-[30]; Minister for Immigration and Citizenship v MZYCE [2010] FCA 767; (2010) 116 ALD 156 at [35]-[38]; SZNWF v Minister for Immigration and Citizenship [2010] FCA 1041 at [35]-[36] and SZOER v Minister for Immigration and Citizenship [2010] FCA 1100 at [68].

64    For these reasons, I consider that the appellant should not be permitted to agitate on this appeal the matters contained in proposed Ground Two of his Notice of Appeal.

Ground Four: Regard to prudence of appellant’s conduct

65    The IMR assessed the evidence concerning Incident Three in some detail. It is apparent that she subjected the appellant’s account of it to close scrutiny but, nevertheless, ultimately accepted the essential elements of the account. As part of her consideration, the IMR said:

[196]    The Reviewer carefully questioned the claimant about his willingness to continue the deliveries of anti-government material when he knew that this had serious consequences if he was caught due to the repressive regime and the punishment of dissenters, and that there would be a risk to his safety in doing so. Whilst the Reviewer considered it would not necessarily be prudent conduct on his part, the reviewer accepts that the claimant was disaffected with the repressive regime in Iran, knew the inherent risks if caught, but despite that he continued the deliveries.

(Emphasis added)

66    This ground of appeal focused on the italicised portion of this passage. The appellant sought to invoke the principles stated by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [43]:

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality.

67    The appellant submitted that, by asking herself whether the appellant’s activity was prudent, the IMR had failed to consider properly the chance of serious harm resulting from his conduct in the future and therefore had not addressed herself to the proper question.

68    In my opinion, this submission proceeds on a misunderstanding of the effect of the IMR’s conclusion at [196] quoted above. The IMR made the impugned observation in the course of considering whether to accept the appellant’s account of his conduct in the past which had led to Incident Three. The prospect that the appellant had voluntarily engaged in conduct involving a threat to his own safety was a factor which the IMR evidently regarded as counting against acceptance of his evidence. However, despite that, the IMR accepted his account. The passage in [196] cannot reasonably be understood, in my opinion, as a statement that the IMR considered that, in the future, the appellant could avoid harm by a prudent decision not to engage in the dangerous activity and thereby failed to consider whether he faced a real chance of persecution if returned to Iran.

69    This ground of appeal fails.

Conclusion

70    In my opinion, all the appellant’s grounds of appeal fail and, accordingly, the appeal is dismissed.

Associate:

Dated:    1 October 2014