Federal Court of Australia

FDQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1735

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a 42 year old Iranian national who arrived in Australia by boat on 22 July 2013. As such, he was an unauthorised maritime arrival.

2    On 8 September 2017, the appellant lodged an application for a Safe Haven Enterprise Visa (SHEV). That application was refused by a delegate of the Minister on 16 April 2018 and that decision was affirmed on 19 September 2018 by the Immigration Assessment Authority (the IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth) (the Act).

3    The appellant then sought judicial review in the Federal Circuit Court (the FCC) of the IAA decision, but was unsuccessful: FDQ18 v Minister for Immigration and Border Protection [2020] FCCA 83.

4    The appellant now appeals against the decision of the FCC on four grounds.

The appellant’s claims

5    The appellant applied for the SHEV on the basis that he is a refugee (s 36(2)(a) of the Act) and on the basis of complementary protection (s 36(2)(aa) of the Act). The IAA summarised the bases of the appellant’s claims as follows:

(a)    he was a convicted drug user and prisoner in Iran and so had come repeatedly to the adverse attention of the Iranian authorities;

(b)    he has seven or eight tattoos on his body, including one on his right forearm containing Christian iconography. These tattoos were obtained while he was in Iran and he had been subject to a lashing some the seven or eight months before he left Iran when the Iranian authorities had discovered his Christian tattoo;

(c)    before leaving Iran, the appellant had been required to report to a police station once a month (by reason of his drug convictions). He had heard that following his departure, Iranian Intelligence had been to his own home querying his whereabouts;

(d)    shortly after his arrival in Australia, he had been diagnosed with HIV. He fears that by reason of that diagnosis he will be imputed as a homosexual if returned to Iran which will give rise to a real chance of serious and significant harm at the hands of the Iranian authorities;

(e)    he also fears that the necessary treatment for his HIV will not be available in Iran so that he will suffer a deterioration in his health;

(f)    he converted to Christianity soon after his arrival in Australia and was baptised in the Anglican Church on 19 October 2014. He fears harm in Iran by reason of being a Christian convert (apostate) who proselytises;

(g)    he fears that, if returned to Iran as a failed asylum seeker, he will suffer harm by reason of an imputed political opinion; and

(h)    finally, the appellant relied upon the cumulative effect of each of the above matters, and emphasised that his profile in Iran will have been increased by reason of his failure to comply with the monthly reporting obligations before he left Iran as well as the Department’s “data breach” in January 2014.

The decision of the IAA

6    The IAA accepted that the appellant had been convicted and imprisoned for drug use in Iran in the period between 2000 and early 2013 and that, after being discharged from prison, he had been subjected to some ongoing harassment by the Iranian police. However, the IAA did not accept that the appellant had been subject to a monthly reporting obligation prior to his departure from Iran or that, following that departure, the Iranian police had visited his home to question his disappearance and whereabouts. For these reasons, the IAA was not satisfied that the appellant has an ongoing profile with the Iranian authorities by reason of his previous drug use and criminal history.

7    The IAA accepted that the appellant is “HIV positive, that he is currently receiving treatment by a qualified physician, and that he will continue to rely on treatment for his condition in the future”.

8    The IAA accepted that the appellant had been baptised in the Anglican Church but was not satisfied that the appellant’s conduct in Australia in relation to his claimed conversion (church attendance, baptism and activities on Facebook) “was for any purpose other than to strengthen his claims for protection”. On the basis of that finding, and acting in accordance with s 5J(6) of the Act, the IAA disregarded the appellant’s conduct in Australia with respect to his claimed Christian conversion. The IAA reached the decision concerning this aspect of the appellant’s conduct having regard to his seeming minimal knowledge and understanding of elements of the Christian faith, his vague and unconvincing responses to questions about the Christian faith, the fact that the appellant had ceased regular church attendance even before lodging his application for the SHEV and the limited nature of the evidence supporting the appellant’s claim that he had posted “overtly religious posts on his Facebook wall over the past year”.

9    In relation to the appellant’s tattoos, the IAA accepted that the appellant has a substantial tattoo on his right forearm comprising an image of a blindfolded woman kneeling at the foot of a cross, with her hands tied behind her back and an arrow embedded in her left shoulder. The IAA noted the Department of Foreign Affairs and Trade (DFAT) Country Information Report of 7 June 2018 which assessed incidents of harassment of men with visible tattoos as being likely attributable to “either overzealous enforcement of dress code standards by individual security authorities in particular locations (particularly outside of major cities) or because the individual has come to the attention of authorities for separate activities (ie, political activists)”. The IAA also noted that the appellant had lived in Iran with his tattoos for over a decade without any apparent repercussions. The member was not satisfied that “there is a real chance the applicant will suffer serious harm on the basis of his tattoos, including the Christian tattoo, either now or in the reasonably foreseeable future”.

10    The IAA was not satisfied that the appellant faced a real risk of significant harm by reason that he would return as failed asylum seeker. The IAA said, at [50]:

More recently, in 2018, DFAT also reported that Iranian authorities pay little attention to voluntary returnees on their return to Iran, and have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on returning to Iran, particularly political activists. The applicant does not fit this profile and I have found that he did not have an adverse profile with the Iranian authorities when he departed Iran. I am therefore not satisfied that there is a real chance he will suffer any harm in Iran for reasons of returning as a failed asylum seeker from Australia, either now or in the foreseeable future.

11    Finally, in relation to the refugee claims the IAA said that, having considered the appellant’s claims individually and cumulatively, it was not satisfied that he faced a real chance of serious harm upon return to Iran, at [52].

12    The IAA went on to consider the appellant’s claim to complementary protection under s 36(2)(aa) and rejected that claim.

The decision of the FCC

13    The appellant had legal representation in the FCC. The hearing in the FCC proceeded on the grounds stated in a document entitled “Second Amended Application” filed on 28 May 2019. This document contained four grounds but the appellant did not press the first. The FCC Judge considered that it lacked merit in any event.

14    It is convenient to refer to the FCC Judge’s reasons when assessing the grounds of appeal.

15    It is also convenient to consider the grounds of appeal in the sequence in which they were argued, which was not the order in which they appear in the notice of appeal.

Ground 3 – Apostasy as a distinct integer of the claims

16    By this ground, the appellant contends that the FCC Judge should have found that a failure by the IAA to consider his apostasy, as distinct from his conversion to Christianity, as a separate integer of his claim for protection and for complementary protection constituted jurisdictional error.

17    The FCC Judge noted that the submissions in the FCC on this ground constituted a departure from the grounds stated in the Second Amended Application. Nevertheless, the FCC Judge addressed the ground. His Honour accepted that conversion to Christianity and apostasy from Islam are conceptually and linguistically distinct, at [27]. The Judge also accepted, at [31], that the IAA had not considered separately a claim by the applicant to be an apostate, whether as part of his refugee claim or as part of the claim for complementary protection. In addition, the Judge accepted that the IAA had been required to consider claims (and their component integers) made by an applicant which were evident on the material before it, referring to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, (2003) 197 ALR 389, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 and to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, (2001) 233 FCR 136 at [42].

18    However, the FCC Judge rejected this ground because the IAA had found that the appellant’s apostasy had been advanced only as a facet of his claim to Christian conversion and not as a separate integer. His Honour said, at [31]:

In my view, the applicant’s apostasy claim was advanced only as a facet of his claim to have converted to Christianity or, put another way, his apostasy was constituted by his claim to have converted to Christianity. His claim to be an apostate from Islam was not advanced as a separate integer of claim and, as such, any claim was not a “substantial, clearly articulated argument” nor was it apparent on the face of the material before the Authority as a separate claim. In these circumstances the Authority’s failure to separately consider the applicant’s claim to be an apostate, whether as part of the consideration of his refugee claims or his complementary protection claims does not amount to jurisdictional error.

(Emphasis in the original)

19    The appellant’s counsel submitted that this approach of the Judge was incorrect because it was evident on the materials that the appellant had advanced a claim to apostasy independently of his claimed conversion to Christianity. In support of this submission, counsel referred to three matters which had been before the IAA. The first two were contained in the detailed submission which the appellant’s migration agent had made to the delegate on 5 February 2018. This submission referred, in considerable detail, to the difficulties which those converting from Islam to another religion may face in Iran. In doing so, the submission referred from time to time to the position of both “apostates and converts”. Counsel relied on the following passages:

[3.74]    Non-Muslims in Iran face particularly severe discrimination in marriage and family life. Article 1059 of the Civil Code, for example, prohibits marriage between Muslim women and non-Muslin men. Furthermore, Christian converts have reportedly lost child custody rights to Muslim spouses (upon divorce) because of their Christianity.

[3.75]    The Danish Immigration Service quote the observations of a number of independent observers with regard to the treatment of apostates and converts in Iran:

Accordingly to ‘[a]n international organisation in Turkey’, conversion of a Muslim to any other religion (or proselytising to Muslims) is considered to be apostasy in Iran. According to this organisation, ‘[t]he arbitrariness in the application of law makes it difficult to know the degree of punishment for conversion’. The fact that the verdict may derive from Shari’a law, the Penal Code or the Press Code means that ‘[a] person may never know which set of laws will be applied in his case’.

…

[3.91]    Apostates and converts in Iran face persecution if they reveal their religious opinions as they truly are, including through social media platforms such as Facebook. They cannot be expected to restrain themselves in their expression, nor to feign affinity to a faith with which they no longer abide. Based upon the independent information provided above, it is our submission that:

a.    Converts and apostates face significant risks of serious harm in Iran, amounting to Convention-based persecution for purposes of refugee status assessment;

b.    State authorities will be unable or unwilling to protect apostates and converts against such harm; and

c.    Such harm occurs throughout Iran, and cannot be evaded through internal relocation.

d.    As the persecution the Applicant’s (sic) fear relates to element of the authorities, we submit there is no effective state protection anywhere in Iran.

(Citations omitted)

20    In my view of these passages, the migration agent’s submission was drawing attention to a particular source of potential harm which the appellant may face. Both apostasy and religious conversion were put forward as circumstances which could give rise to the same potential adverse consequences. The content of [3.15] in the migration agent’s submission supports this understanding.

21    However, the agent did not suggest that the appellant’s apostasy was constituted by anything other than his conversion to the Christian faith, or that the appellant would face a risk of harm on account of both apostasy and his conversion to Christianity, or that, even in the absence of his conversion, he would face a risk of harm on the basis of apostasy which he would not face on the basis of actual or perceived conversion to Christianity.

22    The next passage in the material to which counsel referred was part of the answer which the appellant had given in the course of his evidence before the Minister’s delegate when being questioned about his knowledge of Christianity. That evidence included:

Delegate:    Who are Joseph and Mary?

Interpreter:    He just believe in this religion, he doesn’t attend any sessions. He has attended a few sessions at the beginning, but he is just believing this religion and he doesn’t know much about it.

Delegate:    Why do you believe in it?

Interpreter:    He was interested since he was in Iran. He hated to be a Muslim.

23    Counsel emphasised the second sentence in the last answer, submitting that it evidenced a rejection by the appellant of the Muslim faith. I accept that that may be so, but the answer is hardly a claim of a fear of harm which is independent of his claim of religious conversion.

24    In response to these submissions, counsel for the Minister referred to aspects of the appellant’s claims which suggested that the appellant’s references to apostasy before the IAA had been as incidents of his more substantial claim, namely, his conversion to Christianity. Counsel noted that in the appellant’s induction interview on 2 September 2013, the appellant had stated his religion as Shia. However, in the entry interview on 16 December 2014 (which followed the appellant’s baptism in the Anglican Church on 19 October 2014), the appellant had described himself as not belonging to any particular “social or religious group”. In the application for the SHEV in September 2017, the appellant had described himself as Christian.

25    Counsel emphasised passages in the Statement of Protection Claims provided by the appellant on 6 September 2017:

[1]    … I am of Kurdish ethnicity and my religion was Shia Muslim. In about 2013, since living in Australia, I have converted to Christianity. I am a Catholic and was baptised in 2014 …

[2]    … My main reason for seeking the protection in Australia is fear of harm at the hands of the Iranian government and police on account of my change of religion, tattoos and past drug use …

…

[40]    … I got a Christian cross tattoo because I was interested in Christianity although I couldn’t convert to Christianity at this point because the government would persecute me.

[41]    As I have converted from Islam to Christianity I will likely be put in jail and/or be executed. Under Sharia law people who convert to Christianity are either put in jail or executed. Some of my friends have converted to Christianity and have then been put into jail.

…

[44]    In summary, I fear harm throughout the whole of Iran including harassment, jail and execution at the hands of Iranian government and police on the basis of my change of religion, tattoos and past drug use …

(Emphasis added)

26    Counsel for the Minister submitted that these passages indicated that the appellant was relying on his conversion to Christianity and not on apostasy independently of that conversion.

27    Counsel submitted that this reliance was also evident in the written submissions of the appellant’s migration agent of 5 February 2018 which, he contended, indicated that the apostasy was a facet of the appellant’s conversion to Christianity. Counsel noted in this respect the agent’s statement of the matters giving rise to a risk of persecution as including the appellant’s “apostasy (conversion from Islam to Christianity)” and the manner of expression of the submission in the first paragraph under the heading “Persecution of Apostates”:

[3.11]    Muslims, or people previously perceived as professing the Islamic faith, will be persecuted in Iran if they abandon their Islamic faith or convert to another religion. Muslims who convert to Christianity face particularly severe risks. As such, we submit that the Applicant would be at risk of persecution or significant harm due to his conversion to Christianity and public renouncement of Islam as illustrated through the posts on his Facebook account, him telling his family in Iran of his conversion and his Christian cross tattoo …

(Emphasis added)

28    Counsel submitted that in this way the appellant’s agent’s submissions had identified the apostasy as comprising the appellant’s embrace of Christianity.

29    Counsel submitted that having regard to this manner of expression of the appellant’s claims, the FCC Judge had been correct in concluding that the appellant’s “apostasy claim” was advanced only as a facet of his claim to have converted to Christianity or, as the FCC Judge put it, “his apostasy was constituted by his claim to have converted to Christianity”, at [31].

30    I agree. In my view, a claim of apostasy (other than that constituted by the conversion to Christianity) was not made as a “substantial, clearly articulated argument” which, if accepted, might establish a well-founded fear of persecution in the sense discussed in Dranichnikov and the subsequent cases.

31    In any event, the apostasy constituted by the appellant’s abandonment of Islam appears to be subsumed by a more significant form of apostasy, namely, that abandonment in favour of the claimed embrace of the Christian faith.

32    It needs to be kept in mind that the IAA’s disregard of the appellant’s conduct in relation to the claimed Christian conversion did not mean that that conduct had not occurred. Plainly it had occurred as a fact. The preclusion of legal significance being attached to that fact did not eliminate it as an occurrence. The appellant’s abandonment of Islam continued as an intrinsic element of his claimed Christian conversion, making it improbable that one would ever be considered without the other.

33    For this reason, the appellant’s attempt to invoke apostasy in the form of abandonment of Islam as a separate integer in his claim for complementary protection does not avail him either. It is still the same apostasy.

34    In these circumstances, Ground 3 is not made out.

Ground 4 – the appellant’s Facebook profile

35    By Ground 4, the appellant claims that the FCC Judge should have found that the IAA decision was affected by jurisdictional error in the finding made about the significance of the appellant’s name on his Facebook profile.

36    The appellant provided to the Minister’s delegate four screenshots from his Facebook page. As I understand it, he did so with a view to demonstrating the sincerity of his claimed conversion to Christianity. In addition to showing the appellant’s full name, the screenshots contain Christian imagery, which the IAA described as follows:

•    Screenshot 1 (undated) – shows a profile photo (Christian cross on a chain) and a Christian cover photo (man bowing before the foot of a cross);

•    Screenshot 2 (dated 13 December, no year) – profile picture was updated to an image of a Christian cross with wings;

•    Screenshot 3 (undated) – cover photo was updated to an image of a man bowing before the foot of a cross; and

•    Screenshot 4 (dated 15 July 2017) – cover photo was updated to a picture of a tattoo on the chest of an unidentified male, bearing the image of a pair of hands holding a Christian cross on a chain.

37    The claim made to the delegate was that the Facebook entries would enable the Iranian authorities to identify readily the appellant as a convert to Christianity. This was so by reason of the ready accessibility of the Facebook pages and the distinctive nature of the appellant’s name which, as indicated, appeared on each screenshot.

38    The IAA discussed the Facebook screenshots in the following paragraph:

[34]    There is no evidence before me to substantiate the applicant’s claims that he posted ‘overtly religious posts on his Facebook wall over the past year’ and that his Facebook page is ‘easily identifiable due to his name’. Only one screenshot is properly dated and none of the screenshots show the applicant’s face, or provide any corroborative evidence that the Facebook profile does in fact belong to the applicant. The screenshots do not provide evidence of posting any religious text and while the applicant’s representative indicated that translations of the content of the applicant’s Facebook page would be provided, none have been received to-date. On the basis that the screenshots provide no evidence of the applicant’s identity, lack any religious text and merely contain images as opposed to evidence of actual postings on his wall, I do not accept that the applicant had in fact posted ‘overtly religious posts on his Facebook wall over the past year’. The fact that the applicant began proselytising through Facebook three years after his baptism and two months before his SHEV application is also noteworthy. There is no evidence to support the claim that Iranians have been informed of his baptism.

(Emphasis added)

39    As noted earlier, the IAA considered that the appellant’s activities on Facebook had been engaged in only for the purpose of strengthening his claims for protection and were therefore, in accordance with s 5J(6) of the Act, to be disregarded.

40    The first of the grounds in the appellant’s Second Amended Application in the FCC had been a complaint that the IAA’s decision “to disregard the applicant’s conduct in Australia was legally unreasonable or illogical amounting to jurisdictional error and gave rise to practical injustice”. That ground had not been pursued. However, it had been supported by numerous particulars and sub-particulars, one of which concerned the IAA’s finding that none of the screenshots provided corroborative evidence that the Facebook profile did in fact belong to the appellant.

41    The FCC Judge noted that the appellant’s counsel had not pressed Ground 1 in the hearing before him and regarded himself as justified in treating it as “not pressed, without qualification”, at [16]. The Judge went on to say, in [17], that subject to one exception, the ground amounted to a challenge to “an adverse credibility assessment of the applicant’s motivations for engaging in conduct in Australia associated with what were said to be his Christian belief”. The exception was the IAA’s conclusion that the name on the Facebook profile, being the same as the appellant’s, was not corroborative of the appellant’s claim that the Facebook profile was his, at [17]. The Judge said that the basis for this conclusion of the IAA was not apparent and could be said to have been made “without an evident and intelligible basis”. However, the Judge did not regard that as significant, saying, at [17]:

[I]n my view the Authority’s error in relation to that is a minor and inessential element of its failure to be satisfied that the applicant’s Christian conversion and related conduct in Australia was not conduct engaged in for the purpose of strengthening the applicant’s refugee claims. The precise finding, even if erroneous, was not jurisdictional error because it was subsumed in findings of greater generality. In my view, that more general assessment was open to the Authority and, accordingly, the Authority was precluded from taking that conduct in Australia into account in determining whether the applicant had a well-founded fear of persecution: s. 5J(6) Migration Act.

42    In Ground 4, the appellant submits that the error found by the Judge should have been regarded as jurisdictional because it “significantly alters the logical findings available, especially in a cumulative assessment of the appellant’s claims”. Counsel made the submission with particular reference to the appellant’s claim for complementary protection.

43    Insofar as this ground is directed to the appellant’s refugee claim, it must fail by reason of the IAA’s more general finding that the appellant’s conduct in Australia (church attendance, baptism and activities on Facebook) had been only for the purpose of strengthening his claim for protection. It was not suggested that the IAA’s finding to that effect may have been affected by the failure to appreciate the potential evidentiary significance of the inclusion of the appellant’s name in the Facebook profiles.

44    Senior counsel submitted, however, that the disregard of the Facebook material pursuant to s 5J(6) did not preclude the profiles with the appellant’s name being relevant to the claim for complementary protection.

45    However, it is to be noted that, in relation to the claim for complementary protection, the IAA gave further reasons for not being satisfied that the four screenshots would draw adverse attention to the appellant from Iranian authorities. The IAA said:

[59]    … There is nothing before me to indicate that the Iranian authorities would be aware of his involvement in any Christian activities in Australia, that such activities would be of concern to them or that he would be of adverse interest to them on this basis. As already noted, the indications are that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran. This includes social media posts as heavy internet filtering means most Iranians will never see them and converting to Christianity. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran but I am not satisfied on the evidence that the applicant has such a profile. Millions of Iranians travel into and out of Iran each year without difficulty, including from the large Iranian diaspora residing in Western countries.

[60]    [I] have found that the applicant was not of interest to the Iranian authorities when he left Iran. I do not accept that he will become a person of interest to the Iranian authorities on the basis of his Christian activities in Australia. I have also found that the applicant does not have any ongoing interest in, or commitment to Christianity, and he is not an active member of a Christian church or the Christian community in Australia. By his own admission, he has no Christian friends. I am not satisfied on the evidence that he has developed any meaningful depth of understanding during the entire time he has been in Australia, especially given the opportunity he had to freely practise his religion for over five years without the threat of persecution, which he claimed previously prevented him from converting in Iran. As such, I do not accept that he will pursue the Christian faith on return to Iran, or proactively proselytise as claimed, despite his strong assertions to the contrary in his submission(s) to the IAA …

(Citation omitted)

46    I understand the IAA to be reasoning in these passages that it was improbable that the Iranian authorities would become aware of the Facebook profile, or of the appellant’s activities associated with his claimed Christian conversion. This was because of the appellant’s lack of profile as a person of interest, the absence of evidence that failed asylum seekers are prosecuted, the restrictions on access to social media posts, and the finding that the appellant would not pursue practice of the Christian faith, or proselytising if returned to Iran. The IAA considered that, for these reasons, the appellant would not face a real risk of suffering significant harm.

47    Having regard to these findings, the appellant’s submission that the IAA had failed to consider the significance of the Facebook posts in the context of the appellant’s claim for complementary protection, cannot be sustained.

48    At the very least, the additional reasoning indicates that the error of the IAA cannot be regarded as material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25]; [75]-[79].

49    Accordingly, this ground fails.

Ground 2 – treatment for the appellant’s HIV

50    By Ground 2, the appellant contends that the FCC Judge should have found jurisdictional error by the IAA in failing to make an express finding, or to provide reasons for a finding, concerning the availability and effectiveness of treatment for HIV for the appellant in Iran.

51    The Second Amended Application in the FCC did not contain a complaint of jurisdictional error of this kind. However, in the supplementary submissions filed in the FCC on 25 October 2019, the appellant did contend that the IAA “did not properly consider whether adequate medical treatment for [his] HIV condition will be provided if [he] is returned to Iran and whether the applicant might, as a consequence, suffer “significant harm” within the meaning of the Act”.

52    In the hearing before the FCC, counsel for the appellant sought to rely upon a document entitled “UNAids, Islamic Republic of Iran”. Counsel for the Minister objected to reliance on the UNAids document, contending that it was an attempt by the appellant to rely on fresh evidence to impugn the IAA’s decision and was therefore impermissible: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]. The FCC Judge accepted that submission so far as it went but was willing to proceed on the basis that it was not applicable because, although not identified by the IAA as such, the UNAids document may have been part of the unparticularised information before the IAA which the IAA member had characterised as “outdated”. The IAA member had said that more weight should be placed on the “recent country information before the delegate, which demonstrates the various initiatives conducted by the Iranian government and non-governmental sectors in terms of HIV/AIDS education and public awareness campaigns, providing support to those living with HIV and expanding the delivery of HIV/AIDS services throughout the country”, at [44].

53    Proceeding on the possibility that the UNAids document had been part of the “outdated information before the IAA”, the FCC Judge concluded, at [22]:

… In that case the Authority would be justified in preferring one piece of country information over another and it provided a reason for doing so: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11]. In either case, this ground, as advanced in oral argument, does not succeed.

54    The FCC Judge also said, at [20]:

… Although the Authority did not make an express finding that the applicant will be able to receive proper treatment in Iran for HIV it is implicit, in my view, in the findings that the Authority was so satisfied.

55    Senior counsel for the appellant submitted that the finding in [20] concerning implicitness was in error. She commenced by noting the IAA’s acceptance that the appellant is currently receiving treatment by a physician by reason of his HIV status and that he would “continue to rely on treatment for his condition in the future”.

56    Counsel then referred to passages in the migration agent’s submission of 5 February 2018 which indicated that social stigma towards HIV patients in Iran can make it difficult for them to obtain access to health services. Further, the migration agent referred to a 2016 UN report which indicated that there were “66,000 people living with HIV in Iran and among these only 14% were receiving antiretroviral therapy and 8% had supressed viral loads”.

57    Counsel also submitted that, given that the Minister’s delegate had referred to country information that there are between 66,000 and 120,000 persons living in Iran with HIV and that over 3,500 people in need of antiretroviral therapy in Iran were receiving it, it had been incumbent on the IAA to consider and evaluate expressly the availability of treatment for the appellant in Iran and its effectiveness.

58    With respect to the availability of treatment in Iran, the IAA made the following findings:

[44]    I … have placed more weight on recent country information before the delegate, which demonstrates the various initiatives conducted by the Iranian government and non-governmental sectors in terms of HIV/AIDS education and public awareness campaigns, providing support to those living with HIV and expanding the delivery of HIV/AIDS services throughout the country.

[45]    … Iran is taking a pragmatic approach to the [HIV] epidemic and it is widely accepted that imprisonment and drug use has contributed to an increase in the rate of HIV/AIDS. Considering the initiatives mentioned above and Iran’s national strategic plan to end the AIDS epidemic by 2030, I am of the view that the situation for people living with HIV can only improve in the future. Treatment and counselling for HIV is provided free of charge and has been for a number of years. The Iranian government has also launched a website to furnish information and education for HIV/AIDS, which also provides links to 157 centres nationwide (including in prisons) that offer free HIV testing and counselling services. Many patients go to major cities such as Tehran, where the applicant is from, for treatment.

[46]    For the reasons above, I do not accept that the applicant will be imputed with homosexuality upon his return to Iran, or that the stigma attached to HIV and homosexuality would involve a discrimination at a level amounting to serious harm or otherwise compromise his ability to obtain treatment, including affordable treatment, such that his condition would deteriorate rapidly and impact his ability to survive. Having considered the applicant’s claims cumulatively, I am not satisfied that there is a real chance the applicant would suffer serious harm because of HIV status.

(Emphasis added)

59    Senior counsel for the appellant submitted that the finding that the situation for HIV sufferers in Iran could only improve was made without reference to any “baseline” and that it does not follow from the above findings that the [IAA] had formed the view, as a matter of implication, as to the availability or effectiveness of treatment for HIV in Iran. She noted the absence of express findings as to the treatment which is in fact available.

60    I do not accept the appellant’s submission concerning the “implicitness” finding. Like the FCC Judge, I consider it to be implicit in the IAA’s summary of the treatment available in Iran for HIV sufferers that the IAA member regarded that treatment as being available to the appellant. It is not reasonable to suppose that the IAA had referred to, and relied on, the free treatment and counselling available to HIV sufferers in Iran without thinking that that treatment and counselling would be available to the appellant. Likewise, it is not reasonable to suppose that the IAA referred to the 157 centres nationwide in Iran offering free HIV testing and counselling services without thinking that at least some of these would be readily accessible by the appellant and would be the means by which he may obtain the necessary treatment. Likewise again, it is not reasonable to suppose that the IAA had found expressly that the appellant would not face discrimination compromising his ability to obtain treatment without thinking that such treatment would otherwise be available to him. Any reasoning to the contrary would be to attribute a form of perversity to the IAA member. These conclusions are confirmed by the IAA’s statement with reference to the appellant’s HIV status when considering the claim on complementary protection that it had found “there is not a real chance the applicant would suffer serious harm because of his HIV status”. It is difficult to think that the IAA would have made such a finding if it did not think that appropriate treatment would be readily available to the appellant.

61    It may be acknowledged that the material to which the Minister’s delegate had referred indicates that the treatment for HIV sufferers may not be universally available. However, that was a matter for the IAA to assess and, for the reasons stated, it is implicit in its reasons that it considered that adequate treatment would be readily available to the appellant.

62    It was not incumbent on the IAA to make each of the individual factual findings concerning the availability of treatment for which counsel contended or to refer to each item of evidence bearing on the same: Applicant WAEE at [46]. Counsel did not refer to any authority to the contrary.

63    Accordingly, Ground 2 fails.

Ground 1 – the evaluation of the claim for complementary protection

64    By Ground 1 (as expressed in the Notice of Appeal), the appellant contends that the FCC Judge should have found jurisdictional error by the IAA in failing to evaluate his “cumulative claims” for complementary protection under s 36(2)(aa) separately from the consideration of the claim under s 36(2)(a) that he was a refugee.

65    There is an ambiguity in the manner of expression of Ground 1. However, on the appeal, senior counsel for the appellant confirmed that his complaint was that, while the IAA had considered the cumulative effect of his claims in relation to the refugee claim, it had not done so when considering the claim for complementary protection.

66    It seems that a similar form of ambiguity had occurred in the hearing before the FCC Judge because, as the FCC Judge noted at [18] of his reasons, the appellant’s written submissions in the FCC on Ground 2 departed substantially from the grounds expressed in the Second Amended Application. The departure was so great that the FCC Judge regarded the submissions as constituting a new ground of review.

67    The appellant’s submissions in the FCC had included the following contention:

[10.2.2]    Further, the Second Respondent failed to properly consider the cumulative effect of the Applicant’s personal circumstances separately from its consideration of the Applicant’s status as a refugee.

(Emphasis added)

68    The written submissions later elaborated this complaint by asserting:

[16]    A claim for complementary protection under s 36(2)(aa) arises if the Applicant does not make out a refugee claim under s 36(2)(a). A decision maker must “distinguish the different test posed by s 36(2)(a) and s 36(2)(aa) of the Act.

[17]    The Second Respondent failed to properly consider the cumulative effect of the Applicant’s personal circumstances, including his HIV status, his prior history of drug use, his criminal convictions, his conversion to Christianity, his apostasy, his publication of Christian material via his public Facebook account, and the data breach, in assessing whether he might suffer “significant harm” as a result of his return to Iran. The Second Respondent erred only by considering these matters fully in the context of the Applicant’s claim to be a “refugee” under s 36(2)(a), and did not give proper consideration to these matters in considering the application of s 36(2)(aa).

(Emphasis added and citation omitted)

69    As is apparent, this submission sought to focus attention on the cumulative effect of the appellant’s “personal circumstances” as opposed to the cumulative effect of his “claims”.

70    The FCC Judge did not address directly the submission made in these paragraphs. That is understandable, given the way the matters were raised for his consideration. The Judge did, however, touch on the issue when giving his reasons for rejecting Ground 2 as expressed in the Second Amended Application. His Honour said:

[23]    For the sake of completeness, I should say that I also consider the ground appearing in the written ground is not made out. The Authority expressly referred to having considered the applicant’s claims individually and cumulatively at paragraph [52] of its reasons as part of its consideration of the applicant’s refugee claims. It was submitted that the Authority was in error in failing to engage in the same process as part of its consideration of the applicant’s complementary protection claims. As part of that process the Authority repeated, in an abbreviated form, its consideration of the applicant’s individual claims but did not expressly refer to considering the claims “cumulatively”. As the claims in both cases were the same this would seem to involve an identical process. I am not satisfied that this constitutes jurisdictional error. Further, the first respondent submits that where each of the individual claims is dismissed, as is the case here, then no amount of cumulative consideration is capable of producing a different result … I accept that submission.

(Emphasis added and citation omitted)

71    In the submissions on the appeal, the appellant’s counsel emphasised “key differences” between “serious harm” and “significant harm” as those terms are defined in the Act. Counsel then submitted that the FCC Judge had been in error in considering that it followed, from the fact that the appellant’s claims in support of complementary protection were the same as the claims he advanced in support of being a refugee, that the process of assessment was identical for each at [15].

72    Counsel then submitted that, as the IAA had “accepted that the appellant was at risk of some harm in respect to individual aspects of his claims, [it] was required to consider the individual and cumulative effect of each of those claims for the purposes of both s 36(2)(a) and 36(2)(aa)”, at [17]. Counsel noted that while the IAA had stated expressly in relation to the consideration of the refugee claim that the appellant’s claims had been considered both “individually and cumulatively”, at [52], there was no counterpart statement in relation to the claim of complementary protection.

73    Thus, at times the submission was made with respect to the appellant’s “claims” and at other times by reference to his “personal circumstances”. It is accordingly necessary to address this Ground in two parts: by reference to the appellant’s claims and by reference to his personal circumstances as the two are not co-extensive.

74    I commence by noting that, as counsel for the Minister submitted, it was open to the IAA to refer to, and rely upon, is anterior findings of fact in the assessment of the refugee claim when considering the claim for complementary protection: CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31]-[32]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55]-[56].

75    The appellant invoked the following authorities in support of the proposition that the IAA was required to consider the cumulative effect of each of his claims: Dranichnikov at [22]-[24], [27] (Gummow and Callinan JJ, Hayne J agreeing), [88]-[89] (Kirby J); Applicant WAEE at [45]; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, (2004) 144 FCR 1 at [55], [58]-[61], [63]. None of those authorities stands expressly for the proposition that an applicant’s separate claims should be considered cumulatively. Instead, they stand for the proposition that a reviewer such as the IAA will err if it does not consider “a substantial, clearly articulated argument relying on established facts” (Dranichnikov at [24]) and this may be so even if the argument is not articulated by the particular applicant.

76    I accept, however, that these authorities indicate that a reviewer such as the IAA is required to consider the whole of the claims made by an applicant for a visa and, when appropriate, to assess the cumulative effect of those claims – see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [33]. However, when each of the individual matters upon which an applicant relies has been rejected, there is no obligation to consider the cumulative effect of those matters. In such a case, no amount of cumulative consideration of rejected claims is capable of producing a different result: DDK16 at [34].

77    This approach is apposite in the present case. The IAA had found that the appellant may be subjected to “some HIV-related stigma and a degree of societal discrimination in Iran as a result of his HIV status” but had rejected each of his other claims. There was accordingly no basis upon which there could be a cumulative effect of individual aspects of the claims.

78    In relation to the appellant’s personal circumstances, counsel submitted that the IAA had accepted each of the following, at [16]:

a.    The appellant was living with HIV, was receiving treatment and would continue to need treatment for the foreseeable future …

b.    The appellant had been addicted to drugs …

c.    The appellant had been imprisoned in Iran on a number of occasions …

d.    The appellant was sent to rehabilitation centres in Iran on a number of occasions and was subject to arbitrary harassment by the police, forced to pay bribes and arrested and/or detained when bribes could not be paid …

e.    The appellant’s claims were consistent with country information, with reported frequent failures in the administration of justice following the 2011 amendments to Iran’s anti-narcotics laws, including arbitrary arrest of alleged and the detention/imprisonment of individuals in rehabilitation centres who are not drug addicts, for the purpose of coercion or as reprisals for their activities while detained …

f.    The appellant was baptised on 19 October 2014 and had a tattoo with some Christian connotations …

g.    People with a visible tattoo could come to the attention of security forces and result in low level harassment …

h.    The appellant may face a warning, fine or low-level harassment from the authorities due to having tattoos …

i.    Information indicated that HIV-related stigma and negative public attitudes towards the disease inhibit people from coming forward to be tested and to seek treatment …

j.    People living with HIV may face societal discrimination in Iran …

(Citations omitted)

79    Strictly speaking, there had not been a finding that the appellant had been addicted to drugs as claimed in (b), but the difference for present purposes is immaterial.

80    The submission then was that the cumulative effect of these “circumstances” should have been considered.

81    One difficulty for the submission is that it does not indicate how each of these personal circumstances (which are for the most part separate and distinct matters) could, even if considered cumulatively, logically give rise to a real risk of significant harm. That is to say, it is not readily apparent how one circumstance, even if combined with two or more of the other circumstances, could give rise to such a risk, let alone a risk beyond that which the IAA had already considered and rejected. The appellant had not claimed, for example, that his tattoos taken together with his HIV status, could give rise to a real risk of significant harm which each, considered individually had not.

82    A second difficulty is that several of these personal circumstances were the factual matters on which the appellant’s claims had been based. The significance which the appellant had sought to attach to them had been rejected. It was not necessary for the IAA to consider the cumulative effect of circumstances which it had found individually did not give rise to the requisite real risk.

83    I also consider that counsel for the Minister is correct in his submission that one would not readily infer that the IAA had not considered the matters cumulatively, to the extent that that was possible, when the IAA had said expressly that it had done so in relation to the refugee claim.

84    Accordingly, however Ground 1 is viewed, it cannot succeed.

Conclusion

85    In summary, each of the appellant’s grounds of appeal fails. The appeal is therefore dismissed. The appellant is to pay the first respondent’s costs of and incidental to the appeal to be taxed in default of agreement.

Associate:

Dated:    2 December 2020