Federal Court of Australia

BNQ16 v Minister for Immigration and Border Protection [2020] FCA 1831

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of an incidental to the appeal.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The appellant appeals from a judgment of the Federal Circuit Court handed down on 23 June 2020, which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal made 10 February 2016. The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the appellant a Protection (Class XA) visa (visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    For the reasons I explain, it is appropriate to dismiss the appeal.

Background facts and procedural history

3    The appellant, a 32 year-old Iranian national of Kurdish ethnicity, arrived in Australia by boat without a visa on 17 July 2012. On 23 November 2012, the appellant applied for a visa and provided an accompanying statutory declaration dated 22 November 2012 detailing his claims for protection.

The appellant’s claims

4    In his statutory declaration the appellant claimed to fear that on return to Iran he would suffer serious or significant harm at the hands of the Basij and the Sepah, and also from members of the Mishkas tribe. His claims may be summarised as follows.

Conflict between the Behr tribe and the Mishkas tribe

5    The appellant grew up in a village in Iran in which the population was entirely Kurdish and the people were primarily of the Behr tribe. Other Kurdish tribes were based nearby, including the Mishkas tribe. He claimed that:

(a)    in about 2002 a dispute arose between the Behr tribe and the Mishkas tribe, which commenced when a Behr bus driver driving through the Mishkas village was attacked by 10 or 20 Mishkas men because of the non-payment of a parking fee by another Behr driver. The driver refused to pay a fee which was owed by another driver and the Mishkas men assaulted him. One man threw a rock which struck the driver on the head and killed him;

(b)    other Behr men were angered by the attack and about 300 Behr men attacked the Mishkas village and set fire to some houses. There was also an allegation that some of the attackers had raped a Mishkas girl;

(c)    the local police attempted to mediate between the two tribes, and arrested and imprisoned the man suspected of throwing the rock which had killed the bus driver. The police also arrested some Behr men involved in the attack on the Mishkas village but were unable to hold them due to the lack of evidence. The Mishkas men were unhappy with this outcome and the conflict between the tribes did not abate.

(d)    in about 2008 the appellant was completing his compulsory military service by working in the local prison. The bus driver’s killer was incarcerated in the prison and he could tell from the appellant’s accent that the appellant was of the Behr tribe. While travelling to his village from the prison one day, the appellant was stopped by some Mishkas men who were carrying sticks and pieces of metal. They surrounded and threatened to beat him. At that time a police car drove past and the Mishkas men told the appellant that he was lucky that time and left. The appellant was subsequently told by a friend that the bus driver’s killer had told his family that the appellant had assaulted him in prison. The appellant believes this is why the Mishkas men had targeted him and threatened to attack him; and

(e)    since 2002, members of the Mishkas tribe have continued to harass and threaten the Behr tribe as they think that the Behr have escaped justice, and there are constant physical altercations instigated by the Mishkas. As a result, it is not safe for Behr people to travel outside their villages. It is necessary for the appellant’s parents to travel to the city of Ilam about once a week to purchase food and other basic necessities and they have no choice but to pass the Mishkas village. They live in constant fear they will be attacked and killed by the Mishkas.

Persecution by Sepah officers

6    The appellant claimed that in about 2000, when he was home with his brother and sister, three or four Sepah officers in uniform came to the home and ransacked it. The appellant’s parents were not at home at the time. The Sepah officers found a gun owned by the appellant’s father, which he kept for use on their farm and was authorised to have. The Sepah officers claimed that the weapon was kept illegally and one of them assaulted the appellant’s brother. Later, the Sepah officers returned the gun as the appellant’s father had lawful permission to keep the weapon for use on the family farm.

Persecution by Basij officers

7    The appellant claimed to have had a number of incidents with members of the Basij, one of five forces of the Islamic Revolutionary Guard Corps in Iran (Basij), which may be summarised as follows:

(a)    in about 2004 or 2005 some Basij officers approached the appellant and asked him to join. When he declined the Basij officers assaulted him by slapping and punching him (the 2004/2005 incident);

(b)    in about 2008, the appellant completed his military service and applied for a job in a factory. He was turned away from employment because he was not a member of the Basij;

(c)    the appellant was unable to find work in Ilam because he refused to join the Basij and so he moved elsewhere to live and work; and

(d)    in about March 2012 when the appellant was living in Teheran he travelled in a motorcycle taxi to see a sister. The taxi was stopped by four or five Basij officers. They asked for identity documents but the appellant was not carrying his, and the driver did not have any identity documents, nor a motorbike driving license. The Basij officers accused them of being muggers and said that they had been stealing handbags from people in the street. The appellant and the motorbike driver were beaten with batons and taken to Basij headquarters where they were interrogated for about two hours. During the course of the interrogation one of the officers noted that the appellant was Kurdish and told him that he should not be in Teheran and he should return to Ilam. The appellant continued to deny that he was a thief but he was not believed. They took his photo and his fingerprints and posted the notice on the noticeboard mark with the word “suspect”. Ultimately, the Basij released the appellant because they had no evidence to support their accusations (the 2012 incident).

8    The appellant claimed to live in constant fear of the Basij and felt that he could no longer cope with the continuous harassment and discrimination he experienced. He said that “the Basij’s corruption and authoritarian control dominated our daily lives”

9    Following the 2012 incident, the appellant returned to Ilam and made plans to leave Iran. He arrived in Australia in July 2012.

10    The appellant claimed to fear harm on return to Iran from the Mishkas tribe, the Basij and the Sepah because:

(a)    he is a Kurd a member of the Behr tribe;

(b)    he will be imputed with a political opinion because of his refusal to become a member of the Basij, and

(c)    he will return to Iran as a failed asylum seeker.

The delegate’s decision

11    On 1 July 2013, the appellant was interviewed by a delegate of the Minister in respect of his visa application. On 9 December 2013, the delegate refused to grant the appellant the visa. It is unnecessary to go to the detail of this decision as it has been superseded by the decision of the Tribunal.

The application to the Tribunal

12    On 27 December 2013, the appellant applied to the Refugee Review Tribunal (as the Tribunal was then named) for review of the delegate’s decision.

13    On 2 April 2014, the appellant’s legal representative provided written submissions to the Tribunal which, relevantly to the appeal, argued that Kurdish people are discriminated against in Iran by the state and by other citizens, and that the Basij targets Kurds and other minority groups.

14    On 21 April 2015, the appellant participated in the hearing before the Tribunal, assisted by his legal representative and an interpreter (the First Hearing).

15    On 1 May 2015, the appellant’s legal representative provided post-hearing submissions to the Tribunal, which addressed his claim to fear harm by reason of being a young Kurdish male, as well as claiming that the Iranian government had dispossessed his family of land they had farmed.

16    For reasons which are not clear on the papers the application was reallocated to another Tribunal member. On 19 November 2015, the appellant participated in a second hearing before a reconstituted Tribunal, again assisted by his legal representative and an interpreter (the Second Hearing).

17    On 3 December 2016, the appellant’s legal representative provided another post-hearing submission to the Tribunal, essentially directed to claims of systemic discrimination against Kurdish people in Iran.

18    On 10 February 2016, the Tribunal decided to affirm the delegate’s decision, and published its reasons.

19    The Tribunal noted the appellant’s evidence, given for the first time in the Second Hearing, that he had suffered psychological harm when he was assaulted by the Basij in the 2012 incident. The Tribunal decision records the appellant’s evidence as follows (at [54]):

…the applicant told the Tribunal that what had happened to him in the past had affected his memory. On one occasion he was assaulted by the Basij and he was still suffering the psychological consequences, but he did not want to talk about it too much in case people think that he is crazy. He said that he had not mentioned it to the Department of Immigration or the Tribunal in the past, because he did not want people to think that he is mentally unwell. The Tribunal asked him whether he wanted to talk about this incident, he described the motorcycle episode. The Tribunal observed that he had mentioned this previously both in his written and oral evidence.

20    The Tribunal considered (at [21]) whether the appellant’s capacity to participate in the hearing was impacted by any mental health problems, and said:

The Tribunal has taken into account the applicant’s claims that he has been traumatised by the experiences in Iran and as a result he suffers from psychological problems and poor memory. The Tribunal notes that it does not have any independent medical evidence about the applicant's mental health. At the hearing in November 2015 he appeared lucid, he understood and answered questions well. The Tribunal has listened to the audio recording of the April 2015 hearing with the Refugee Review Tribunal (RRT) and the applicant did not appear to have any difficult answering questions or participating meaningfully in the hearing. In relation to the Tribunal's obligations pursuant to s.425 the Tribunal has concluded that the applicant was able to present his case and that he gave coherent and relatively consistent evidence. The Tribunal finds that the applicant's mental state was not such that he was not able to give evidence and present arguments.

21    The Tribunal found that the appellant did not face a real chance of suffering serious harm for a Convention reason upon return to Iran, and that he was not owed complementary protection obligations. Relevantly to the appeal the Tribunal:

(a)    accepted that the appellant was harmed by the Basij in the 2004/2005 and the 2012 incidents (at [82]). It found that these incidents were “acts of random physical violence” and the appellant was “unlucky” to be harmed twice (at [84]). It rejected the appellant’s claim that young Kurdish males were targeted by the Basij for recruitment (at [85]-[90]). It found that the appellant did not have a profile as a result of the 2012 incident (at [97]), and it was not satisfied that the likelihood of the appellant suffering harm at the hands of the Iranian authorities in the future was “more than remote” (at [112]);

(b)    accepted the general proposition that Kurdish people in Iran suffer discrimination in many aspects of their lives (at [103]), but found that - as a person who did not hold strong political opinions - the discrimination the appellant would face would not amount to serious or significant harm (at [106]-[112]); and

(c)    accepted that on return to Iran the appellant may be stopped and questioned about his time in Australia, but was not persuaded that the questioning would amount to serious or significant harm (at [128]).

22    Other than the passage (at [21]) where the Tribunal concluded that the appellant’s claimed psychological problems were not such as to prevent him from giving evidence and participating in the hearing, the Tribunal did not otherwise refer to the appellant’s asserted mental health difficulties.

The application to the Federal Circuit Court

23    On 23 June 2016, the appellant filed an application for judicial review of the Tribunal decision in the Federal Circuit Court.

24    The application alleged a single ground of review, being that the Tribunal fell into jurisdictional error by failing to consider a claim or integer of a claim which, while not clearly articulated by the appellant, was squarely raised by the materials before the Tribunal. The asserted claim was that, having regard to his claimed mental health problems, on return to Iran the appellant faced a real chance of suffering further serious psychological harm in future interactions with the Basij or other Iranian authorities.

25    The application was heard on 22 April 2020. On 23 June 2020, the primary judge dismissed the application, holding that no such claim or integer of a claim clearly emerged from the materials before the Tribunal. His Honour said (at [24] – [32], [37]) as follows:

[24]    An examination of the claims above does not disclose, in my view, any link between the harm the Applicant claimed to have suffered, and the existence of any psychological or mental health problems. The highest the material gets is the statement that he ‘could no longer cope’ with the harassment and discrimination he experienced. In fact, an examination of the Applicant’s claims advanced throughout the history of the matter discloses that the first mention of the Applicant suffering any ‘psychological’ problems only occurred at the second hearing before the Tribunal on 19 November 2015.

[25]    There is then the text of paragraph [54] of the Decision itself. I have set out earlier in these reasons, the entirety of that paragraph. The Tribunal there records the assault the Applicant experienced from the Basij and the Applicant’s statement that he was ‘still suffering the psychological consequences’. The Applicant refers to his failure to mention it up to this point in time ‘in case people think that he is crazy’. The Decision then records that the Applicant was invited by the Tribunal to talk about the situation. Rather than elaborating on any aspect of his mental health, the Tribunal records that the Applicant simply ‘described the motorcycle episode’.

[26]    There are also facts and circumstances in addition to what I have set out above that need to be taken into account in determining whether the Claim arises squarely on the material. These include the following:

a.    as noted earlier, the Applicant arrived in Australia on 17 July 2012. The first mention of any psychological or mental ill health that the Applicant may be suffering only occurred at the second hearing on 19 November 2015;

b.    the Applicant never communicated the nature or extent of any psychological consequences, including any diagnosis, symptoms or treatment for his conditions. Nor did he indicate whether returning to Iran would have any effect on any psychological condition;

c.    the Applicant did not raise in submissions before the Tribunal on 1 May 2015 any issue regarding his psychological health. This is despite the fact that those submissions dealt with the subject of healthcare in Iran and the difficulties the Applicant may face in accessing such healthcare in Iran (Court Book page 248); and

d.    the Applicant did not raise any issue with respect to his mental health in post hearing submissions to the Tribunal (see Court Book pages 289 – 290).

[27]    It is relevant to note that the Applicant was represented before the Tribunal. In SZULW v Minister for Immigration and Border Protection [2018] FCA 1335, Thawley J endorsed the following statement, of Cameron J in SZULW v Minister for Immigration and Border Protection [2018] FCCA 258 at [21], in the context of the matter before him:

‘Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed.’ (citations omitted)

[28]    Similar sentiments were expressed by Dowsett J in SZQFR v Minister for Immigration and Citizenship [2013] FCA 574. In that matter, Dowsett J had to consider whether there was any separate claim to fear persecution for reason of the appellant being a young Hazara male. Dowsett J recited the facts and concluded that the claim had been abandoned. In so reaching that conclusion, Dowsett J at [57] stated that

‘If either the appellant, or those representing and advising him considered that there was a second claim to fear persecution for reason of his being a young Hazara, the perceived distinction would surely have led to its being stressed, not completely overlooked.’

[29]    It seems to me that the present matter has some similarities to the matter considered by Dowsett J. While the Applicant contends that the Claim was articulated by him as recorded by the Tribunal at paragraph [54], the Claim did not find expression in either the pre-hearing submissions, or the post hearing submissions to the Tribunal. In circumstances where the Applicant was represented, it is to be expected that if this was an essential integer of the claims advanced by the Applicant, it would have been emphasised by his advisers. It was not, and therefore the Tribunal was entitled to proceed and assume the Claim was not an essential integer of the claims being made.

[30]    There is then the Applicant’s claim that his mental health deteriorated because of the conduct of the Basij, and that it therefore follows that future interactions between the Applicant and the Basij could adversely affect his mental health.

[31]    There are two aspects about this submission that bear mention. First, the Applicant did not claim that his mental health deteriorated ‘because of the conduct of the Basij’. As I have noted earlier, the relevant part of the statement made by the Applicant was that he ‘could no longer cope’, or alternatively, that he was suffering psychological consequences.

[32]    Second, there are decisions that deal with the issue of whether an applicant might suffer psychological harm if he or she is required to return to their country of origin. Two such cases drawn to my attention by the Applicant are SBTF v Minister for Immigration and Citizenship [2007] FCA 1816, and SCAT v Minister for Immigration and Multicultural Affairs. While the appellants were successful in those cases, there are important distinctions to be drawn between the present matter and the decisions in SBTF and SCAT. In SBTF, the appellant had provided two reports from a psychologist, and there was evidence the appellant had suffered psychological harm as a result of his detention and torture. In SCAT, the appellant’s fear of psychological harm was expressly raised in written submissions and the appellant provided evidence from others. Those are important facts. They do not arise in the present case.

…

[37]    When all of the above matters are considered I find for the reasons set out above that the Claim was not, in the circumstances of this case, raised ‘squarely’ on the material available. The Claim was not, in my view apparent on the face of the material before the Tribunal when all of the matters to which I have referred are considered. The Tribunal therefore did not have any statutory duty to consider the Claim any further.

The appeal to this court

26    On 16 July 2020, the appellant filed a notice of appeal in this Court, raising the following single ground of appeal, which essentially replicates the ground of the application below:

The Federal Circuit Court erred in holding that the Administrative Appeals Tribunal had not failed to consider an integer of the Appellant’s claims to fear serious or significant harm in Iran.

Particulars

a.    The Appellant claimed in his protection visa application to fear harm from the Iranian authorities including the Basij.

b.    At the Tribunal hearing on 19 November 2015 the Appellant claimed he had suffered psychological harm due to an assault from the Basij that he was still dealing with (see [25], [54], tribunal’s reasons).

c.    The Tribunal failed – in considering whether future interactions between the applicant and Iranian authorities would cause serious or significant harm to the Appellant – to consider the Appellant’s mental health.

d.    The Federal Circuit Court held that the claim that the Appellant would face additional harm did not clearly arise from the material.

e.    The Federal Circuit Court erred in holding that the claim did not clearly arise, given the Appellant had claimed to have suffered the psychological harm as a direct consequence of a previous assault by the Basij.

27    The Tribunal’s review process required it to consider all claims made by the appellant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42] (Allsop J (as his Honour then was) with whom Spender J agreed). The Tribunal is, however, only required to consider such claims which are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    which ‘clearly emerge’ from or are ‘squarely raised’ by the materials before the Tribunal:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [58] and [63] (Black CJ, French and Selway JJ).

28    It is uncontentious that in giving evidence before the Tribunal the appellant claimed that he had suffered psychological harm when he was assaulted by the Basij in the 2012 incident. The appellant concedes that he did not clearly articulate a claim that he feared suffering psychological harm in the future through interactions with the Basij or other Iranian authorities. He contends, however, that such a claim or integer of a claim clearly emerged from the materials before the Tribunal. He submits that the Tribunal fell into jurisdictional error by failing to consider that claim, and argues that the primary judge erred by failing to so find.

29    Three central questions therefore arise on the appeal. First, whether a claim that the appellant feared suffering psychological harm in the future as a result of interactions with the Basij or other Iranian authorities clearly emerged from the materials before the Tribunal. Second, whether the Tribunal gave consideration to that claim. Third, assuming the Tribunal had failed to consider the claim, whether the Tribunal’s failure to give consideration to the claim was material.

The appellant’s submissions

30    In relation to the first question, the appellant submits that the Tribunal was required to consider whether or not he would face a real chance of suffering serious or significant harm on return to Iran, and that such harm may include psychological harm. Having regard to the claims he made, the Tribunal was required to assess how the relevant circumstances in Iran might affect him, which required consideration of the appellant’s particular characteristics and how they might influence the likelihood of the circumstances in Iran causing him to suffer serious or significant harm.

31    The appellant concedes that he did not clearly articulate a claim to fear psychological harm in the future as a result of any future interactions with the Basij or other Iranian authorities, but he says that his evidence to the Tribunal provides an explanation as to why he did not do so. It is uncontroversial that he told the Tribunal that did not like to talk about his mental health problems caused by the assault by the Basij in the 2012 incident because he did not want people to think that he was “crazy” or “mentally unwell”.

32    The appellant argues that the personal characteristics that required consideration by the Tribunal included his claim to have poor mental health as a result of the assault by the Basij in 2012, as he had given clear evidence in that regard, which evidence the Tribunal had noted. He says the evidence before the Tribunal shows that on return to Iran he may be harassed by the Basij or other Iranian authorities which, having regard to his claimed mental health problems, could affect him psychologically, even if the harassment did not involve physical violence. That the appellant claimed that on return to Iran he would be harassed by the Basij or other Iranian authorities is clear on the materials. He claimed in his statutory declaration that he “lived in constant fear of the Basij and felt that [he] could no longer cope with the continuous harassment and discrimination [he] experienced.” He also said that he was harassed by the police, and that when he was working in Teheran in a metal trading business the police would regularly come to evict the Kurdish people working along the street, which the Tribunal noted (at [62]). The Tribunal implicitly accepted that the appellant was subjected to some level of harassment by the Iranian authorities (at [100]).

33    The appellant contends that, having regard to his psychological problems from the assault by the Basij in 2012, a claim clearly emerged from the materials before the Tribunal that, through future interactions with the Basij such as questioning, harassment or detention, his psychological vulnerability meant that he might suffer further psychological harm. That asserted claim is not though based in a claim to fear again being assaulted by the Basij, because the Tribunal found that the risk of that occurring is remote. Instead the asserted claim is that, having regard to his claim to have suffered psychological trauma in the past through the assault by the Basij, a claim ‘clearly emerged’ that future non-violent interactions with the Basij or other Iranian authorities (such as questioning or harassment) could lead to him suffering further psychological harm or aggravating his existing mental health problems. The appellant contends that the claim more clearly emerged from the materials because the psychological harm he suffered in the past was because of conduct by the very authorities that he claims to fear will cause him psychological harm in the future.

34    In relation to the second question, the Minister concedes that the asserted claim or integer of claim was not considered by the Tribunal, either expressly or implicitly.

35    In relation to the third question, the appellant submits that the Tribunal’s failure to consider the asserted claim was material, in the sense explained in Hossain v Minster for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2]-[4] and [45]-[50] (Bell, Gageler and Keane JJ).

36    On the appellant’s argument there was evidence that he suffered psychological harm in the past as a result of his interactions with the Basij and, had the Tribunal considered the asserted claim, there is a realistic possibility that given his existing poor mental health the Tribunal could have found the appellant might suffer serious or significant psychological harm as a result of any future encounter with the Basij or other Iranian authorities, even if those interactions did not include physical violence. The applicant also notes that the Tribunal accepted (at [128]) that on return to Iran the appellant may be questioned at the airport by Iranian authorities and, had the Tribunal considered the asserted claim, there is a realistic possibility that, given his existing psychological problems, the Tribunal could have found that such questioning could lead to the appellant suffering further serious psychological harm or aggravating the existing psychological damage.

37    The appellant disputes the Minister’s contention that the Tribunal’s consideration of the asserted claim could not possibly have made a difference to the outcome because, in the absence of medical evidence about the appellant’s mental health, the Tribunal could not assess whether he did suffer psychological harm in the past nor whether any future encounter with the Basij or other Iranian authorities could cause him to suffer serious or significant psychological harm. While the appellant accepts that his claim would have been strengthened by medical evidence, he says that he claimed to suffer mental health problems including memory problems as a result of being assaulted by the Basij in the past, and that the claim that he might suffer further psychological harm in any future interactions with the Basij was capable of acceptance by the Tribunal without any requirement for medical evidence. He contends that the Tribunal’s error in failing to consider the asserted claim was material, and shows jurisdictional error.

Consideration

38    I am not persuaded that the asserted claim or integer of a claim – that on return to Iran the appellant might suffer serious or significant psychological harm from future non-violent interactions with the Basij or other Iranian authorities - clearly emerged from the materials before the Tribunal. I do not consider that the Tribunal made a jurisdictional error by not considering such a claim, nor that the primary judge erred by failing to so find.

39    In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ) the Full Court adopted the following principles, collected by Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68], as to when a claim can be said to ‘clearly emerge’ from or be ‘squarely raised’ by the materials. Their Honours said:

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37. While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38. Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

40    The authorities provide that a finding that a claim “clearly emerges” from or is “squarely raised” by the materials before the Tribunal is not lightly to be made. It is not enough for the materials to indicate that such a claim might have been made. The inference may be made more readily when the claimant is not legally represented, but here the appellant was legally represented at all stages of the visa application.

41    The evidence before the Tribunal shows that:

(a)    the appellant arrived in Australia on 17 July 2012 and he applied for the visa on 29 November 2012. He made detailed claims in his accompanying statutory declaration and made no mention that he had suffered any psychological harm when assaulted by the Basij in the 2012 incident, that he had any ongoing psychological problems as a result, or that on return to Iran he fears suffering psychological harm through future interactions with the Basij or other Iranian authorities;

(b)    on 1 July 2013, the appellant was interviewed by the delegate. Again, he did not claim that he suffered any psychological harm in the 2012 incident, that he had any ongoing psychological problems as a result, or that he fears suffering psychological harm through future interactions with the Basij or other Iranian authorities;

(c)    on 2 April 2014, the appellant’s legal representatives lodged written submissions with the Tribunal. The submissions detailed the appellant’s claims over 18 pages and again made no mention of the matters set out above;

(d)    on 21 April 2015, the appellant gave evidence in the First Hearing. Again he made no claim to have suffered psychological harm in the 2012 incident, to have had ongoing psychological problems as a result, or that he fears suffering psychological harm through future interactions with the Basij or other Iranian authorities; and

(e)    1 May 2015 the appellant’s legal representatives lodged short post-hearing written submissions with the Tribunal. Those submissions claimed, amongst other matters, that the appellant would face difficulties in accessing healthcare in Iran because of his Kurdish ethnicity, but did not mention the matters set out above and said nothing about any difficulty he might face in accessing health care services for his claimed mental health problems.

42    In the Second Hearing on 19 November 2015, the appellant said, for the first time, that he was “suffering from the psychological consequences” of having been assaulted by the Basij in 2012. However, as the Tribunal noted at [54], when he was asked for further information in that regard the appellant merely reiterated his factual claims about the 2012 incident. Beyond stating that the “psychological consequences” had “affected his memory”, the appellant said that “did not want to talk about it too much” in case people think he is “crazy” or ‘mentally unwell”.

43    It was not until the Second Hearing in November 2015 that the appellant mentioned, for the first time, that he claimed to have suffered some psychological harm as a result of the 2012 incident but he said nothing:

(a)    to communicate the nature or extent of any psychological injury from which he claimed to suffer, including by failing to explain whether he had been medically diagnosed with any psychological condition, or suffered any symptoms other than memory loss;

(b)    to link his claim to fear harm on return to Iran to the claimed psychological trauma he suffered; or

(c)    about whether returning to Iran would have any effect on the claimed psychological problems caused by the assault in 2012.

44    Nor did the appellant’s post-hearing submissions say anything to communicate the nature and extent of the psychological injury, to link his claim to fear harm on return to Iran to that claimed injury, or to claim that he fears suffering further psychological harm from future interactions with the Basij. The Tribunal could reasonably assume that the appellant’s post-hearing submissions would have advanced any claim to fear harm in the future based on his claimed psychological problems. But the submissions said nothing about any claimed ongoing psychological problems, notwithstanding that they dealt with the difficulties the appellant might have in accessing healthcare in Iran.

45    Having regard to the way the appellant’s claims were presented over time the Tribunal was entitled to assume that the claims he clearly articulated as to his fear of persecution on return to Iran were those upon which he relied: SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]. It was not required to consider a claim that, on return to Iran, he feared suffering serious or significant psychological harm through future non-violent interactions with the Basij or other Iranian authorities, as the appellant did not articulate any such claim and such a claim did not clearly emerge from the materials. The primary judge did not err in concluding that the Tribunal’s reasons do not show jurisdictional error.

46    It is unnecessary to decide whether the failure to consider such a claim was material in the sense that it deprived the appellant of the realistic possibility of a different outcome.

conclusion

47    It is appropriate to dismiss the appeal and to order the appellant to pay the Minister’s costs.

Associate:

Dated:    21 December 2020