FEDERAL COURT OF AUSTRALIA

CLS15 v Federal Circuit Court of Australia [2017] FCA 577

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The second respondent is to pay the appellant’s costs of the appeal.

3.    The order in paragraph 1 of the orders of the Federal Circuit Court made on 31 August 2016 in action ADG 435 of 2015 be set aside and substituted with the orders in paragraphs 4, 5 and 6.

4.    The application for judicial review in ADG 435 of 2015 is allowed.

5.    The decision of the Administrative Appeals Tribunal made on 21 October 2015 is quashed.

6.    The application for review of the decision of the Minister for Immigration and Border Protection be remitted for reconsideration and determination by the Administrative Appeals Tribunal, differently constituted.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Iran. He appeals against a judgment of the Federal Circuit Court of Australia: CLS15 v Minister for Immigration & Border Protection [2016] FCCA 2164. The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

2    The appeal concerns two of the various claims the appellant made in support of his visa application. First, he claimed to have converted to Christianity since his arrival in Australia and that he had a well-founded fear of persecution for that reason if he were returned to Iran. Second, he claimed that there is a real chance that he will be persecuted in any event if forcibly returned to Iran because he would come to the attention of Iranian authorities as a person who had made a failed claim for asylum in Australia.

3    For the reasons that follow, the appeal should be allowed.

THE VISA CRITERIA

4    A visa may only be granted under the Act if the Minister is satisfied that the prescribed criteria for the grant of the visa are met: s 65.

5    An applicant for a protection visa must satisfy either the criteria in s 36(2)(a) or the criteria in s 36(2)(aa) of the Act. At the time of the delegate’s decision, s 36(2)(a) provided:

(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; …

6    The Refugees Convention there referred to is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see s 5(1) of the Act. For the purposes of s 36(2)(a) as it then stood, Australia had protection obligations under the Convention to persons described in Article 1A(2) of the Convention, namely a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

7    The assessment of whether a visa applicant has a well-founded fear of persecution includes an objective evaluation of the likelihood of the feared persecution occurring. The test is whether there is a “real chance” of persecution, such that possibilities that are remote, insubstantial or far-fetched are to be discounted: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Mason CJ (at 389), Dawson J (at 398), Toohey J (at 407) and McHugh J (at 429).

8    Section 91R(3)(b) of the Act, as then in force, relevantly provided that in determining whether a person had a well-founded fear of persecution, any conduct engaged in by the person while in Australia was to be disregarded unless the person satisfied the Minister that the person “engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee”.

9    Section 36(2)(aa) of the Act, together with ss 36(2A), 36(2B) and 36(2C) were inserted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). Together, these provisions form what is known as the complementary protection regime. They give effect, according to their terms, to Australia’s obligations under the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child: Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18] – [20] (Lander, Jessup and Gordon JJ). Section 36(2)(aa) relevantly provides:

36 Protection visas

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

…

(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

10    The phrase “significant harm” is defined in s 36(2A) to include arbitrary deprivation of life or subjection to cruel or inhuman treatment or punishment.

11    A “real risk” of significant harm in s 36(2)(aa), like the “real chance” test in Chan, is to be understood as a reasonable possibility, as opposed to a remote chance that such harm will occur: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, Lander and Gordon JJ (at [242] — [247]); Chan, Mason CJ (at 389).

12    As the emphasised words indicate, s 36(2)(aa) applies in circumstances where the non-citizen concerned is not a person to whom Australia owes protection under s 36(2)(a). The criterion necessarily falls to be considered in circumstances where the non-citizen’s claim to be a refugee under s 36(2)(a) has failed. Its application does not depend upon the visa applicant claiming to have a well-founded fear of persecution by virtue of being a failed asylum seeker. Moreover, the plain words of s 36(2)(aa) require the decision-maker to consider whether there is a real risk that the non-citizen in question would suffer significant harm as a necessary and foreseeable consequence of the non-citizen “being removed” from Australia to a receiving country. The phrase “being removed” is to be understood in the context of the Act as a whole, including the provision made for the forcible detention and deportation of non-citizens: see Pt 2, Div 7 (s 189), Div 8, (s 198) and Div 9 (ss 200 to 203) of the Act. Section 36(2)(aa) clearly contemplates that a non-citizen who has not fulfilled the criterion in s 36(2)(a) will be vulnerable to deportation under the Act unless he or she qualifies for complementary protection.

THE conversion issue

13    The appellant applied for a Protection (Class XA) visa about five months after his arrival in Australia. At that time, he claimed to have a well-founded fear of persecution if returned to Iran by reason of his actual or imputed political opinions. In an interview with the Minister’s delegate about 18 months later, the appellant further claimed that he had converted to Christianity since his arrival in Australia. His conversion was said to have occurred about four months prior to the interview and about a month after he was first given a Bible translated into Persian and the telephone number for a Christian pastor. At the time of the Tribunal hearing, he had been attending a church of a different denomination for about 12 months. He had, by that time, become engaged to a woman with two young children.

14    The appellant’s fiancée swore a statutory declaration in support of his application for review. She stated that she had attended church with the appellant on two occasions. The appellant also provided the Tribunal with letters from two pastors of his church. Both confirmed the appellant had attended the church every Sunday for about a year. Both expressed opinions that the appellant’s conversion to Christianity was genuine.

15    The Tribunal accepted that the appellant attended church every Sunday and that he had been baptised in the Uniting Church in September 2013 as he had claimed. It nonetheless affirmed the delegate’s decision because, it concluded, the appellant had converted to Christianity (or at least claimed to have done so) for the purpose of strengthening his claims for protection. His conversion was, the Tribunal held, conduct that must be disregarded in accordance with s 91R(3)(b) of the Act.

16    By his first ground of appeal, the appellant contends that the Tribunal’s disregard of his claims to be converted was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. See also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [7], [11] – [12] (Allsop CJ); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [62] (Allsop CJ, Griffiths and Wigney JJ). It is submitted that the Tribunal’s conclusion was not reasonably open on the evidence before it and was, therefore, “legally illogical and irrational”.

17    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ said (at [131], [135]):

131.    … If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

135.    ... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …

18    Their Honours described the Tribunal’s finding there under consideration to be one in respect of which “reasonable minds might differ” and was thus not one that could be illogical or irrational in the legal sense (at [131]).

19    Some brief observations should be made before turning to consider the particular complaints raised on the appeal in connection with this issue.

20    First, it was for the appellant to show before the Tribunal that his conduct in converting to Christianity was undertaken for a purpose other than strengthening his claim to be a refugee: s 91R(3)(b) of the Act.

21    Second, the task of the Tribunal in assessing this aspect of the appellant’s claim involved an evaluative judgment to be made upon the evidence as a whole.

22    Third in making that assessment the Tribunal was not obliged to accept the appellant’s evidence uncritically.

23    The first complaint concerns the Tribunal’s assessment of the degree of involvement of the appellant’s fiancée and her children in his religion and church. The complaint is particularised as follows:

1.1.    The Tribunal found that the Applicant had not genuinely converted to Christianity partly because he had not involved his family in circumstances where:

1.1.1.    His fiancé had attended church on two occasions contrary to the Tribunal’s finding that his family had not attended church.

1.1.2.    The children of the relationship were very young and there is no basis to suggest they should attend.

1.1.3.    There is no basis to suggest that an individual should include family as part of their religious conversion and there was no factual basis upon which the Tribunal could consider this was a relevant factor.

24    On that topic, the Tribunal said:

26.    The Tribunal finds it odd the applicant does not involve his fiancé and her children in his attendance at Church or in speaking to them about Christianity. The Tribunal considers that had he truly converted, he would want to share his new found faith with his fiancé and the children so that they too could be ‘saved’. The Tribunal considers his attendance at Church without his soon to be family, and his lack of attempt to engage them with Christianity, supports its conclusion that the applicant has attended Church solely for the purpose of strengthening his claims for protection and not because he has a genuine engagement with Christianity.

25    Earlier in its reasons, the Tribunal had correctly noted that the appellant’s fiancée had attended his church on two occasions. The Tribunal’s reasons state that when asked whether he had talked to his fiancée’s children about Christianity, the appellant said he had not done so because they were “very young”.

26    It was, the appellant submitted, illogical to proceed from an assumption that a Christian must necessarily involve his or her family in his or her religious practices and, in any event, the appellant had given a rational explanation for not talking to his fiancée’s children about his professed faith.

27    The Tribunal did not approach this particular topic in the manner contended for by the appellant. It did not proceed from the footing that the involvement of a person’s family in his or her church life is determinative of the genuineness of his or her faith. The involvement of the appellant’s family in his church life was one of multiple factors the Tribunal considered and weighed. It was open to the Tribunal to find it “odd” that the appellant had not sought to involve his fiancée and her children in his church life, particularly in circumstances where the tenor of the appellant’s own evidence was that he intended to share his faith with others, including by proselytising should he be forced to return to Iran. The Tribunal was entitled to test that claim and to take into account the appellant’s current practices in talking to others close to him about his religion when doing so. The first particular should be rejected.

28    The second particular concerns the apparent “speed” with which the appellant had converted to Christianity. It is submitted that the Tribunal found that the appellant’s conversion to Christianity was “too quick” and that there was “no factual basis to indicate precisely how long someone should take to convert to Christianity”. Religion and spirituality, the appellant submitted, are matters inherently personal to the individual and it was not open to the Tribunal to make adverse judgments concerning the timing of the appellant’s conversion and baptism, imposing idiosyncratic views as to the pace at which a conversion to Christianity might usually be expected to occur.

29    On this topic, the Tribunal said:

22.    … The Tribunal put to the applicant that it had difficulty accepting the speed with which he decided to become Christian. The Tribunal asked if someone had given him the Bible and [the pastor’s] number with the advice that by engaging with Christianity he could create claims to get a Protection visa. The applicant denied this was the case.

30    It is apparent from the Tribunal’s reasons, considered as a whole, that the concerns about the speed of the appellant’s conversion weighed heavily in its ultimate conclusion that he had “been baptised and attended church in Australia solely for the purpose of strengthening his claim to be a refugee”.

31    The Tribunal held, correctly, that the appellant had become baptised in the Uniting Church within a month of first being provided with a Bible translated into Persian. The timing of his conversion was assessed against the circumstance that the appellant could read and understand very little English at the time and that, at the time of his interview with the Minister’s delegate, he had demonstrated only rudimentary knowledge about Christian beliefs and practices.

32    The Tribunal did not proceed on the basis that the speed of the appellant’s conversion was determinative. Nor did the Tribunal make any finding to the effect that the appellant’s conversion was “too quick” in the sense that a sudden or speedy conversion was not possible. Rather, the speed of the conversion was one of a number of “concerns” expressed by the Tribunal about the genuineness and plausibly of the appellant’s claims.

33    The Tribunal’s concerns are to be understood in the context of the conversion being instigated at a time when the appellant had applied for a protection visa. In all of the circumstances, it was neither illogical nor irrational to have regard to the timing and pace of the relevant events when considering whether the appellant’s conduct of converting to Christianity was conduct to be disregarded in accordance with s 91R(3)(b) of the Act.

34    The third particular concerns the manner in which the Tribunal dealt with the evidence of a pastor from the appellant’s church. It is expressed as follows:

1.3.    The Tribunal found that it did not rely upon the evidence and gave little weight to the evidence of a church member who indicated that the Applicant attended church on a regular basis on the basis that the Applicant did not speak English and could not indicate his level of understanding of Christianity. This was no basis for the Tribunal to determine the extent, nature or depth of the Applicant’s religious beliefs.

35    This complaint misapprehends the reason why the Tribunal gave little weight to a letter authored by a pastor of the appellant’s church. The letter stated “I do believe [the appellant] is genuine in His faith and belief in Jesus Christ as his saviour, as he has shared much of his beliefs and understanding with me and some of our other pastors”.

36    The author of the letter in question did not give evidence before the Tribunal. In assessing the letter, the Tribunal said:

23.    … The pastor of the Church provided a letter that does not read as though it was written about the applicant. It states the applicant ‘became interested in Christianity back in Iran some years ago as he questioned his faith in God and then once in Australia committed to Christianity’. This is inconsistent with the applicant’s claims, that he became interested in Christianity after someone gave him a Bible in Australia. The pastor writes that he believes the applicant is genuine in his faith because he has shared much of his beliefs and understanding with him. However, the Tribunal notes the applicant has limited English and questions how much of his understanding the applicant has conveyed to the pastor. The Tribunal accepts the letter from the pastor as evidence the applicant has attended the Harvest Church but gives it little weight as evidence of the applicant’s genuine conversion to Christianity.

37    The Tribunal was entitled to give little weight to the opinion expressed by the author of the letter. The foundation given for the opinion was that the appellant had shared “much of” his beliefs and understanding with the author. The letter did not explain how that might have occurred given the appellant’s limited English. The Tribunal was entitled to consider the foundation for the opinion to be questionable in all of the circumstances.

38    Telephone evidence was given by member of the appellant’s church who also described himself as a pastor. The Tribunal found the evidence given by that person to be “unpersuasive”. There is no ground of appeal complaining of the Tribunal’s assessment of that evidence, although Counsel for the appellant did make oral submissions to the effect that the conclusion reached by the Tribunal on the whole of the evidence before it was irrational or illogical. I do not agree.

39    Finally in respect of this aspect of the appellant’s claim, it is submitted that the Tribunal’s finding was “entirely circular in that it appears to disregard [the appellant’s] religious conversion in accordance with s 91R(3) of the Migration Act on the basis that the religious conversion was for the purposes of s 91R of the Migration Act”. In oral submissions the complaint was recast so as to allege that the Tribunal engaged in circular reasoning in finding that the appellant’s conversion was not genuine. However phrased, the submission should be rejected. The Tribunal was not satisfied that the appellant’s conduct in Australia of being baptised, attending church and professing to be a Christian was conduct engaged in for a purpose other than strengthening his claims to be a refugee. As a consequence, the Tribunal was required by s 91R(3)(b) of the Act to disregard the conduct in determining whether the appellant had a well-founded fear of persecution should he be returned to Iran. None of that is inconsistent or irreconcilable with the Tribunal’s positive finding that the appellant’s asserted conversion to Christianity was not genuine.

the INVOLUNTARY RETURNEE claim

40    It is not disputed that the appellant left Iran legally on valid travel documents. By the time he arrived in Australia, however, his travel documents had been taken from him.

41    In the proceedings before the Tribunal, the appellant claimed that he would suffer serious harm or persecution if he were returned to Iran as a failed asylum seeker. His claim was clearly articulated as one based on a premise that he would be “forced” to return to Iran if he were not granted a protection visa. The claim was one that arose for consideration whether or not the appellant’s claim to have converted to Christianity was accepted by the Tribunal. He alleged that upon his return he would have the status of a person who had made a failed claim for asylum in Australia founded in part on a claim that he had so converted. He asserted that he would inevitably become known to Iranian authorities because his removal would occur in circumstances that would cause him to be “stopped at the airport and detained there” and that he would be asked questions by the authorities “about where I have been and what is happening”. His failed claim for asylum, based as it was on a claim to have converted to Christianity, would come to the authorities’ attention because of his forcible removal from Australia.

42    Ground 2 of the amended notice of appeal alleges:

2.    The Learned Federal Circuit Court Judge erred in finding that the Tribunal had exercised its jurisdiction in a legally rational manner when dealing with the Applicant’s claim that he would be persecuted should he return to Iran as an imputed religious convert who had applied for asylum and alternatively that the Tribunal in so doing failed to deal with the appellant’s claim as to what would occur if he were returned.

Particulars

2.1.    The Tribunal appeared to deal with the Applicant’s claims on the basis that he would be a voluntary returnee in circumstances where the country information clearly indicated that failed asylum seekers would only be returned if they volunteered but failed to deal with the claim that if he was forced in the future to return as an involuntary returnee he would come to the attention of the authorities.

43    The issues raised in this ground of appeal are not limited to the Tribunal’s application of the criterion in s 36(2)(a). In light of what I have said at [12] above, it was the rejection of the appellant’s claim to have a well-founded fear of persecution that necessitated consideration of his particular circumstances in accordance with the alternative criterion in s 36(2)(aa).

44    As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] (Black CJ, French, Selway JJ):

… there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at [26]):

… the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.

45    The complimentary protection regime had not been enacted at the time that NABE was decided. The Court’s reference to a “clearly articulated argument” is to be understood in the context of the claim for protection made in that case under s 36(2)(a).

46    I am satisfied that a clearly articulated argument was advanced by the appellant in respect of his anticipated status as a failed asylum seeker for the purposes of s 36(2)(a). I am also satisfied that the appellant claimed to be at a real risk of significant harm within the meaning of s 36(2)(aa), to the extent that it was necessary for him to expressly articulate a claim under that provision in all of the circumstances. I doubt that it was necessary, but it is not necessary to determine that issue.

47    Counsel for the Minister submitted that the Tribunal did in fact consider and determine the appellant’s claim to fear persecution or significant harm because of his status as an involuntary returnee. Counsel submitted that the Tribunal’s reasons disclose an implicit finding that the appellant would not and could not be returned to Iran involuntarily at all. Accordingly, it was submitted, the underlying “premise” of this part of the appellant’s claim did not exist.

48    The finding is said to be implicit in paragraph 31 of the Tribunal’s reasons, read in the context of the two paragraphs that follow:

31.    The applicant claimed to fear persecution on return to Iran for having sought asylum in Australia. The Tribunal relies on information provided by DFAT to find there is not a real chance of the applicant being targeted for this reason:

The large Iranian diaspora seems to move back and forth between foreign countries and Iran with little difficulty and many Iranians have citizenship or residence abroad, including in North America, Europe and Asia …

According to Iranian law, it is an offence to leave Iran illegally (ie without a passport). The penalty for leaving the country illegally is either two to six months imprisonment or a fine of Rials 2000-20,000, or both. Press reports suggest there is significant leeway by judges in interpreting the law due to individual circumstances. The destruction of passports is not penalised under the laws regulating passports …

Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily to Iran. However, Iranian overseas missions will not issue travel documents to an Iranian that a foreign government wishes to return involuntarily. Officials have said Iran would assist with any person who wished to voluntarily return to Iran, even if they left irregularly. Anecdotal evidence suggests that official do not attempt to prosecute a voluntary returnee - largely because most failed asylum seekers leave Iran legally (eg regular departure through airports) …

A voluntary returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians.

32    The Tribunal finds there is nothing in the applicant’s personal circumstance that would give him a profile such that the authorities would take an adverse interest in him upon his return. The Tribunal notes the applicant left Iran legally and therefore does not face the penalties that can be imposed on illegal departees. For the reasons given above, the Tribunal does not accept the applicant has a political profile or is wanted by the authorities, and finds there is not a real chance he’ll be imputed with one upon return to Iran in the reasonably foreseeable future. Whilst the applicant may be identified as a failed asylum seeker, having rejected his other claims the Tribunal finds there is not a real chance he will be seriously harmed on return to Iran on the basis of being only a failed asylum seeker.

33    The Tribunal accepts that the applicant is a young man who is unhappy with the level of social oppression in Iran. However, for the reasons given above, the Tribunal does not accept the applicant has a well-founded fear of persecution for any Convention reason if he returns to Iran in the reasonably foreseeable future.

(Footnote omitted)

49    Of paragraph 31, the primary judge said (CLS15 at [45]):

It is implicit in the summary of the applicant’s claim on this matter that [the Tribunal] was taking into account that his return to Iran, if that occurred, would be involuntary. The country information established that Iran would not accept involuntary returnees and would not issue travel documents to a person who ‘wishes to return involuntarily’. The evidence before the Tribunal was that the applicant did not have a passport or other travel documents. As the first respondent submits, ‘the fundamental promise’ [sic premise] of the applicant’s claim to fear persecution if he was involuntarily returned did not exist, at least on the evidence available to the Tribunal. The involuntariness integer was encompassed within the materials on which the Tribunal relied. The Tribunal found that the applicant’s circumstances did not support a finding that he would be subjected to harm on his return on the basis of being a failed asylum seeker. I am not able to find that the Tribunal failed to consider an integer of the applicant’s claim as asserted in this ground of application. As the first respondent submitted, where reasons are otherwise comprehensive, the inference that a Tribunal has failed to consider an issue should not be drawn too readily. I am not prepared to draw that inference in this matter and I am satisfied that the issue of an involuntary return was encompassed within the materials to which the Tribunal gave consideration.

(Footnotes omitted)

50    It is clear that the primary judge determined the Tribunal had considered the appellant’s claim because the topic of involuntary return was averted to in the country information upon which the Tribunal said it relied. As can be seen, that information indicated that Iran refused to accept involuntary returnees without valid travel documents and that valid travel documents would not be issued to a returnee “that a foreign government wishes to return involuntarily”.

51    The primary judge commenced his own consideration with a finding that the Tribunal took into account the circumstance that the appellant’s return to Iran “if that occurred, would be involuntary” (my emphasis). Later in the same paragraph, the primary judge concluded that the “fundamental premise of the applicant’s claim to fear persecution if he was involuntarily returned did not exist”. The primary judge is to be understood as attributing to the Tribunal alternative findings: the appellant could not be returned to Iran involuntarily, but if he was to be so returned, then there was no real chance that he would be persecuted for a Convention reason and no real risk that he would suffer significant harm.

52    The Minister’s submissions on this appeal concerning the Tribunal’s implicit finding differed from the conclusions of the primary judge in an important respect. Counsel submitted that, on a fair reading of paragraph 32 of the Tribunal’s reasons, the Tribunal should be understood as proceeding on the assumption that the appellant would return voluntarily because the Tribunal had already accepted, in paragraph 31, that an involuntary return was not possible.

53    Without being exhaustive, when considering whether an inference may be drawn from the Tribunal’s reasons, particularly whether a finding is implicit, it is appropriate to have regard to:

(1)    the settled legal principles against which the reasons of an administrative Tribunal are to be interpreted;

(2)    the express text of the Tribunal’s reasons; and

(3)    the nature and consequences of the finding, having regard to the statutory context in which the decision is made.

54    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court (French, Sackville and Hely JJ) said (at [46] – [47]):

46.    … The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

55    See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Brennan CJ, Toohey, McHugh, Gummow, Kirby JJ).

56    The admonition that the reasons of an administrative decision-maker not be read with an eye keenly attuned to error does not require a court exercising powers on judicial review (or on a subsequent appeal) to adopt a strained reading of the reasons so as to save the decision from vitiable error. In circumstances where the reasons of a decision-maker may be fairly amenable to different meanings, one of which might demonstrate error, the principles stated in WAEE and Wu Shan Liang may of course require that the reasons be interpreted beneficially, that is, in favour of validity. However, not all kinds of ambiguity are suitable for resolution by preferring one of two alternative meanings. The ambiguity may be such as to evidence confused thinking on the part of the Tribunal or to fairly indicate that the Tribunal has asked itself the wrong question. In such cases, the ambiguity should not be resolved by attributing to the Tribunal implied findings that do not naturally arise from the text of the reasons for the decision, considered in light of all of the surrounding circumstances. In some cases, the very nature of the ambiguity may prevent such an implication being made. I consider this to be such a case.

57    The circumstance that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important. No occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily.

58    The country information to which the Tribunal referred in its reasons did not permit of any circumstance in which the appellant might be issued valid travel documents so as to enable his forcible return to Iran. If the Tribunal uncritically adopted that portion of the country information, then it would have been unnecessary for it to continue, as it did, to consider the likelihood that the appellant would be persecuted or suffer significant harm “on return to Iran”. The appellant could either be forcibly returned to Iran or he could not. The appellant’s claims, and the evidence before the Tribunal, were such that the Tribunal was obliged not only to consider which scenario would apply, but to supply an unambiguous answer to the question.

59    Paragraph 31 is concerned, by its opening words, with the question of whether the appellant would be “targeted”. The word “targeted” is given content in paragraph 32. There, the Tribunal asks itself whether the appellant would come to the adverse attention of the authorities by reason of having a “profile”. The appellant’s claim was not restricted to an assertion that he would come to the attention of the authorities by reason of his profile in that limited sense. He relevantly claimed that he would come to the attention of the authorities in Iran because of the involuntary nature of his return there.

60    If the premise underlying the Tribunal’s reasoning in paragraph 32 is that of a voluntary return, then it has erroneously assessed a claim the appellant had not in fact made. If the premise underlying its reasoning is that of an involuntary return, then that premise is not only inconsistent with the inference the Minister seeks to have drawn from paragraph 31, but gives rise to an alternative error: the Tribunal has not dealt with the claim that the appellant would necessarily come to the attention of the authorities, not merely after his forcible return but because of the forcible return. In my opinion, neither assumed premise can be safely attributed to the Tribunal. The proper inference is that the Tribunal has 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).

61    There is a further reason why the implication sought by the Minister should not be made.

62    If the appellant could not presently be forcibly returned to Iran, a legal consequence of refusing the appellant a protection visa would be that he might be detained as a non-citizen and be held in immigration detention until the attitude of the Iranian authorities in relation to the issue of travel documents to involuntary returnees changed: that is, indefinitely. There is no reference in the Tribunal’s reasons to that possible consequence. The Court should be slow to attribute to the Tribunal, by inference or implication, a finding that has or may have far reaching legal and practical consequences for the appellant. That is particularly so where the reasons for the Tribunal are not expressed in comprehensive terms. The reasons in the present case comprise three paragraphs on the question, the final paragraph being summative and adding nothing of substance to those preceding it.

63    Ground 2 is made out to the extent explained in these reasons.

64    It is appropriate to set aside the orders of the primary judge and remit the matter to the Tribunal for reconsideration. 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. Although the evidence referred to by the Tribunal appeared to suggest only one answer to that question, it is for the Tribunal to evaluate whether or not the country information should be accepted without qualification and, if so, what consequence might then follow for the discharge of its functions and powers on its own review of the delegate’s decision. The Court cannot safely conclude that the country information to which the Tribunal referred was the only evidence to which the Tribunal might have referred had it properly apprehended the issues before it.

65    A third ground of appeal concerned the Tribunal’s application of the “real chance” test in connection with the appellant’s claim to be a failed asylum seeker forcibly returned to Iran. In upholding Ground 2, I have determined that the Tribunal has failed to consider that integer of the appellant’s claim. Accordingly, it is not necessary to consider whether the final ground of appeal is made out.

Associate:

Dated:    26 May 2017