Federal Court of Australia

DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs to be assessed on a lump sum basis by a registrar of this Court if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The appellant is a citizen of Iran. In September 2012 she travelled with her two daughters from Iran, arriving by boat at Christmas Island as unauthorised maritime arrivals.

2    The appeal relates to a number of claims made in support of the appellant's application for a protection visa, relevantly related to a perception that the appellant has converted to Christianity and her fear of retribution from a particular person or tribe in Iran as a result of the rejection by her daughter of a marriage proposal.

Procedural background

3    The appellant participated in an entry interview in November 2012.

4    In 2016 the appellant applied for a Temporary Protection (Class XD) subclass 785 visa, claiming to fear harm from Iranian authorities due to her gender and because she may be perceived to be a Christian, and harm from an Arab tribe referred to as the Savari tribe, as a result of her daughter's rejection of a marriage proposal. It was accepted throughout the relevant processes that the appellant no longer had an Iranian passport.

5    The appellant had assistance from a migration agent for the purpose of preparing her visa application, and provided a written statement of her claims.

6    The appellant participated in an interview in 2016 with a delegate of the Minister. Her migration agent attended with her, and also presented additional information in relation to her protection claims after the interview and prior to the decision.

7    The delegate refused the visa application and provided a written record of reasons. The delegate found that the appellant does not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). Once it was determined that the appellant did not satisfy those criteria, the Minister was required by s 65 of the Migration Act to reject the visa application.

8    In accordance with the Migration Act Part 7AA fast track regime, the delegate's decision was automatically referred to the Immigration Assessment Authority (Authority) for review.

9    The Authority affirmed the delegate's decision, and the appellant sought judicial review of the Authority's decision by the Federal Circuit Court of Australia.

10    The primary judge dismissed the application for review, and the appellant appeals from that judgment.

11    The appellant currently holds a bridging visa, pending the outcome of these proceedings, but has not been granted another visa that provides a lawful basis to remain in Australia.

The protection visa criteria

12    An applicant for a visa must satisfy either the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act. Relevantly, s 36(2)(a) provided at the time that:

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

(a)    a non-citizen of Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee …

13    The term 'refugee' is defined in s 5H(1) of the Migration Act. It provides, relevantly, that the person is a refugee if the person:

(a)    in a case where the person has a nationality - is outside the country of his or her nationality, and owing to a well-founded fear of persecution, is unable to avail himself or herself of the protection of that country …

14    The term 'well-founded fear of persecution' is defined in s 5J of the Migration Act. The definition includes a number of components. Relevantly, s 5J(1) provides that a person has a well-founded fear of persecution if the person fears being persecuted 'for reasons of race, religion, nationality, membership of a particular social group or political opinion' and there is 'a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons'.

15    Section 36(2)(aa) of the Migration Act sets out the criteria for the grant of a protection visa on what are known as complementary protection grounds. It relevantly provides:

(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; …

16    The phrase 'significant harm' is defined in s 36(2A) to include arbitrary deprivation of life or subjection to torture, or to cruel or inhuman treatment or punishment.

17    It follows from the text of s 36(2)(aa) that it applies in circumstances where the non-citizen's claim to be a refugee under s 36(2)(a) has failed. It also contemplates removal from Australia by deportation under the Migration Act.

Claims before the delegate

18    As noted, the appellant provided a written statement of her claims, and that statement was before the delegate. The judicial review application before the primary judge related to the Authority's decision. However, it is also appropriate to briefly summarise the claims before the delegate and the delegate's reasons, because, as explained below, the appellant retained lawyers who commented upon the delegate's decision when providing a written submission to the Authority.

19    The primary judge accurately summarised the appellant's claims before the delegate, and it is convenient to adopt that summary from [2(c)] of his Honour's reasons (case book references deleted):

i)    [the applicant] did not suffer any particular problems until her daughter started university in October 2009, and a man (whom she named) that belonged to an Arab tribe known as the Savari Tribe was interested in her;

ii)    the man and his tribe proposed to her daughter and she did not agree to the marriage as she did not love him and she did not want to marry an Arab because her daughter knew they had no respect for women, treated women like slaves and the applicant agreed with her daughter and respected her decision;

iii)    around March 2012, six Arab men from the Savari tribe came to the applicant's house and asked her and her husband to 'give' their daughter to them to marry their son, and because they did not agree to this marriage, the whole family and in particular their daughter, who often came home trembling in fear, started to receive threats and harassments;

iv)    around June 2012 a customer of Arab ethnicity came to the applicant's hairdressing salon and demanded that she do her hair for her but as the applicant was the manager she said the girls (assumedly employees) could look after her to which the customer became angry and abusive and said that she belonged to the Savari family and that the applicant better watch out because worse things would happen to her;

v)    following this her salon was vandalised and windows were smashed though when she reported this to the police because there were no witnesses, the report did not get anywhere, but she knew this was a targeted attack because nothing was stolen from the salon and the family did not have any other enemies;

vi)    one night in July 2012 some men came to the applicant's house and knocked really loud, were shouting and asking for the door to be opened and while the applicant and her daughters ignored this, there were gun shots and then their harassers left, and a few weeks later, the family car was attacked and smashed by the Savari tribe;

vii)    before leaving Iran, the applicant received a phone call at her workplace asking her to give them her daughter or else suffer the consequences, including that they would kidnap the girls (including therefore the applicant's second daughter), throw acid on their face and rape them and having heard of many stories where girls had escaped similar circumstances when they were located and killed by the Arab tribes she felt she had to leave with her daughters;

viii)    since departing Iran, the man and members of his tribe had gone to the applicant's house looking for them, they told her husband they wouldn't leave him alone until they find them, thus forcing her husband to move house which he was again required to do to avoid being harassed and threatened any further;

ix)    since coming to Australia the applicant has met many nice people who are Christians and she has begun bible study with a friend, has gone to church '3-4 times' and goes to another friend's house every Friday where everyone prays together, but if she is returned to Iran then Iranian authorities will accuse her of converting to Christianity which is something that is punishable by death, and 'in Iran no one dares to change his or her religion because of the punishment';

x)    she could never get protection from the police because it is her word against a tribe's word and as a woman she is worried that she will not be valued and listened to as she has lesser rights than men, so if the authorities assume she is Christian, they will punish her for being an apostate[.]

20    The delegate found that the threats from the Savari tribe relating to the appellant's daughter did not comprise persecution within the meaning of s 5H(1) of the Migration Act. Nor did the delegate consider that the appellant or her family had anything to fear from the Savari tribe. Although the delegate accepted that the appellant had many Arab customers, and that the Savari tribe is part of the Arab population, country information did not disclose that the Savari tribe had a profile of being prone to violence.

21    The delegate did not accept that the appellant was of interest to the authorities based on her association with a Christian church that helps refugees, but accepted that she may fear persecution on that basis.

22    The delegate did not accept that the level of discrimination against women in Iran, although severe, amounted to persecution. Nor was there evidence that the appellant had come into conflict with authorities because of her desire to wear her hair uncovered or wear nail polish or that she would be perceived to have an imputed pro-west political opinion as a result.

23    The delegate accepted that the appellant met the definition of the particular social group of 'failed asylum seeker'.

24    However the delegate did not consider that the appellant's fear of persecution on the basis of her profile as a Christian convert or as a failed asylum seeker was well-founded, having regard to country information, and was not satisfied that there was a real chance of persecution for any of the reasons in s 5J(1)(a) of the Migration Act. The criterion in s 36(2)(a) of the Migration Act was not satisfied.

25    The delegate considered the appellant's claim to be subjected to a real risk of harm at the hands of the Savari tribe in the foreseeable future to be unsubstantiated, particularly having regard to the time that had passed and because the appellant was not the focus of the threats. The delegate was not satisfied there were substantial grounds for believing that the appellant faces a real risk of significant harm if removed to Iran as required by s 36(2)(aa), and was not satisfied that the appellant was someone in respect of whom Australia has protection obligations.

Nature of the review before the Authority

26    Part 7AA of the Migration Act provides a limited form of review of certain decisions to refuse protection visas to some applicants. This includes applicants who are unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014, and includes the appellant in this case.

27    Division 2 of Part 7AA provides the mechanism by which fast track reviewable decisions are to be referred to the Authority. Section 473CA requires the Minister to refer such a decision to the Authority as soon as reasonably practicable after the decision is made. An obligation is placed on the Secretary under s 473CB to provide relevant materials to the Authority for the purpose of its review.

28    Division 3 of Part 7AA of the Migration Act concerns the conduct of the review. Relevantly, the review is to be undertaken on the papers: that is, by considering the review material provided to the Authority pursuant to s 473CB without accepting or requesting new information and without interviewing the applicant: s 473DB(1) of the Migration Act.

29    Pursuant to the s 473CB obligation, the Secretary of the Department provided information to the Authority for the purpose of the review in this case. The appellant had legal representation for the purpose of the review and written submissions were provided on her behalf.

Claims before the Authority

30    The Authority had been provided with the materials before the delegate relating to the appellant's claims. In the appellant's lawyers' written submission (Submission), they explained that the purpose of the Submission was to address why the appellant disagreed with the delegate's decision; reiterate claims before the delegate which were not considered; and put forward 'new information' which the Authority should consider. The Submission included two main contentions:

(a)    the delegate failed to explain why it was considered the appellant would not be perceived as a Christian and failed to consider her claim based upon that perception; and

(b)    a claim said to be implicit in the material before the delegate that should the appellant be forcibly returned to Iran, there is a real risk and real chance that she will be interrogated by the Iranian authorities upon return; that any interrogation conducted by the Iranian authorities will expose the fact that her two daughters have converted to Christianity or that she has taken part in Christian activities in Australia; and if the Iranian authorities become aware of this information, there is a real risk and real chance that the appellant will be harmed or mistreated. As to country information in this regard, the appellant's lawyers referred to a report by the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council titled 'Iran - On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures' and also referred to the DFAT 'Country Information Report Iran April 2016' (DFAT Report 2016), both of which were also referred to by the delegate.

31    The lawyers also sought to present new information by way of the appellant's daughters' baptism certificates, from their baptisms in Australia. The Authority accepted the baptism certificates post-dated the delegate's decision and that there were therefore exceptional circumstances to justify their consideration.

32    There are two important things to note about the Submission:

(a)    the Submission did not assert that the Authority had wrongly assumed that the appellant might voluntarily return to Iran. Rather, the contention as to the perception of conversion to Christianity was not said to be limited in its application to either a voluntary or involuntary return; and

(b)    the claim in the Submission that the appellant would be subjected to interrogation and the potential exposure on return of her daughters' or her own participation in Christian activities was limited to the scenario of a forced or involuntary return.

33    The Authority summarised the appellant's claims (at para 5 of its reasons). That summary repeated the appellant's claims in effect as follows.

34    A man was interested in one of the appellant's daughters. In around March 2012 six Arab men from the Savari tribe came to her house and proposed that the daughter marry the man, which was rejected. Following this, her family and in particular the daughter began receiving threats and harassment.

35    While working at her hair salon, the appellant had a customer of Arab ethnicity demand that she do work for her. The appellant said she was the manager and the girls could look after her; but the customer became angry and abusive and said that he belonged to the Savari family and that the appellant 'better watch out because worse things would happen to her'.

36    About a week later, the hair salon was vandalised and its windows smashed. The appellant reported this to the police but there were no witnesses and the police report did not get anywhere. The appellant knew it was a targeted attack because nothing was stolen from the salon and they did not have any other enemies.

37    Although the Savari tribe was interested in only the daughter, the family also suffered consequences. In July 2012 some men came to their house, knocked loudly and shouted, asking them to open the door. The appellant then heard gun shots and the men left. A few weeks later, their family car was attacked and smashed by the Savari tribe.

38    Before leaving Iran with her daughters, she received a telephone call at work asking her to 'give them her daughter' or else suffer the consequences. The caller kept saying they would kidnap the girls or throw acid on their faces.

39    After the appellant left Iran, the man and members of the tribe also went to her housing looking for them. They told the appellant's husband they would not leave him alone until they were found. Her husband moved house and later moved again to avoid being harassed and threatened any further.

40    The appellant claimed that since coming to Australia she has met 'many nice people who are Christians' and has a friend who is from the church with whom she had studied the Bible one or two days a week for about 18 months. The friend gave her a Persian Bible. She has attended church with this friend three or four times and people are kind to her there. She goes to another friend's house who is a member of the Church every Friday, and this friend celebrates Christianity. Everyone prays together. The appellant claimed that the Iranian authorities will accuse her of converting to Christianity. She said that in Iran, no one dares change their religion, and if the authorities assume she is Christian, they will punish her for being an apostate, and the punishment for apostasy is death.

41    The appellant said she 'could never get protection from the police' because it would be her word against the tribe's word; and as a woman, she will not be valued and listened to because she has 'lesser rights'.

42    It can therefore be seen that the manner in which the delegate and the Authority summarised the circumstances of the appellant's claims was largely consistent. Importantly, however, as appears from the extracts below, the Authority expressly addressed the question of interrogation on an involuntary return, presumably because the Submission had specifically highlighted that claim.

Authority's reasons

43    As to the appellant's protection claim based on fear from the Savari tribe, the Authority said as follows:

9.    I accept that following a rejected marriage proposal, the applicant and her family were subjected to threats of harm from [redacted] and the Savari tribe. At the [protection visa] interview the applicant stated she feared harm from the Savari tribe because 'They have people everywhere. They have contacts in banks, in the intelligence service and in the police.' The applicant's claim regarding the degree of power wielded by the Savari tribe is not supported by available country information. According to DFAT, Arabs in [redacted] report concerns that the government systematically discriminates against them, particularly in employment, housing, access to political office, and the exercise of cultural, civil, and political rights. This information contradicts the applicant's claim that the Savari tribe is powerful and well-connected in financial, intelligence and police circles in Iran. After considering the country information, I do not accept the applicant's claim that she was unable to go [to] the authorities due to the Savari tribe's connections as it would be 'her word against a tribe's word.'

10.    The applicant claims that following a series of harassing encounters, the windows of her hair salon were smashed but nothing was stolen, armed men bashed on her front door and fired shots and her family's car was vandalised. She believes that the Savari tribe was responsible for these actions because before encountering the Savari tribe they had no problems with anyone. I accept that these incidents may have occurred, however given the speculative nature of the claim and the lack of evidence, I do not accept that [redacted] or the Savari tribe were responsible. I accept that the applicant's husband may have moved house three or four times however I do not accept it was due to harassment from members of the Savari tribe seeking the applicant's whereabouts. As the applicant remained in Iran at her usual residence from the time the threats commenced until September 2012 and went about her ordinary daily activities without any issues, I do not accept that she faces a real chance of harm from [redacted] or the Savari tribe more generally on return to Iran some four years later.

44    So it can be see that although the Authority accepted that the various incidents may have occurred, having regard to the speculative nature of the claims, the lack of evidence and other matters, such as the duration of time during which the appellant continued to remain in her home after the threats commenced, the Authority was not satisfied that the Savari tribe were responsible.

45    As to the claim relating to Iranian authorities perceiving her to be a Christian, the Authority came to a different view to that of the delegate, accepting that the appellant may be perceived as a Christian as she has attended church services, associated regularly with Christian friends and her two daughters have been baptised. However, the Authority did not accept that part of the claim which was that converts in Iran are at risk of being prosecuted as apostates, stating:

15.    The applicant claims to fear harm from Iranian authorities because she may be perceived to be a Christian and Christian converts in Iran are at risk of being prosecuted as apostates. When asked at the [protection visa] interview what she thought would happen to her because of her perceived Christianity if she returned to Iran, the applicant stated 'Whoever decides to exit Islam and convert to another religion is considered an apostate and the punishment is death.' I accept that while the death penalty may exist in Iran, country information indicates that since 1990, there have been no reports of converts from Islam to Christianity having been sentenced to the death penalty for apostasy in Iran. The latest case where a convert has been charged with apostasy is that of Yousef Naderkhani, a Church of Iran pastor who came to the attention of the authorities in 2009. There have been no charges of apostasy against Christians in Iran after the case of Naderkhani in which his charges were overturned.

46    The Authority then turned to the claim made in the Submission that it was implicit in the materials before the delegate that there was a claim based on the consequences of an involuntary return.

47    The Authority recited and addressed this claim as follows:

16.    The [Submission] states that a claim that was implicit in the material before the delegate was that should the applicant be forcibly returned to Iran, there is a real risk and real chance that she will be interrogated by the Iranian authorities upon return. There is a real risk and real chance that any interrogation of the applicant conducted by the Iranian authorities will expose the fact that her two daughters have converted to Christianity and/or that she has taken part in Christian activities in Australia. Should the Iranian authorities become aware of this information, there is a real risk and real chance that the applicant will be harmed or mistreated. I do not accept that there is real chance the applicant would be forcibly returned to Iran in the reasonably foreseeable future. According to information from DFAT [DFAT Report 2016], Iran says it does not accept involuntary returnees and Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran.

48    The Authority also considered the potential for questioning on a voluntary return:

17.    If the applicant returned to Iran voluntarily, country information is that amongst the large regular international movements of Iranians, voluntary returnees do not attract much interest from authorities and generally move quickly through airports without official interest. The applicant departed Iran legally through the airport using her own passport. There is no evidence that prior to her departure she encountered any adverse attention from Iranian authorities. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. As the applicant departed Iran legally and unhindered and there is no evidence to suggest that she has attracted the interest of Iranian authorities in the time that she has been in Australia, I consider the chance of her being subjected to questioning on arrival in Iran to be remote.

49    As to conversion to Christianity, the Authority said that country information indicates that converts who return to Iran will not encounter any problems so long as they act discreetly and do not do anything to invoke attention, and it is only people who are active in church activities or have come to the attention of authorities prior to departure who will face adverse attention by Iranian authorities. The Authority found that the appellant does not meet this description, and therefore did not consider that she will face a real chance of persecution from Iranian authorities as a result of her being perceived as a Christian.

50    As to the position of voluntary returning failed asylum seekers, the Authority said:

20.    The evidence before me suggests that Iranian authorities do not prosecute voluntary returnees, largely because most failed asylum seekers leave Iran legally, as did the applicant. Similarly, country information from 2013 is that it is not a criminal offence for an Iranian to seek asylum in another country and around sixty per cent of Iranians who have asylum in other countries, travel unhindered between Iran and those other countries. There is no evidence that the applicant has come to the attention of Iranian authorities [in] the past or that she has a dissident or activist profile. Even if Iranian authorities were aware that the applicant sought protection in Australia, I find that in the absence of a dissident profile, there is not a real chance she will be harmed for claiming asylum in Australia.

21.    DFAT's view is that a voluntary returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians. Further to this, border authorities in practice regularly accept Iranians with valid Iranian travel documents returned involuntarily to Iran. DFAT is not aware of any legislative or social barriers to returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran. In light of this I am satisfied that if the applicant returns to Iran, she will not face a real chance of persecution as a failed asylum seeker.

51    I note that some care needs to be taken in reading para 21 of the Authority's reasons: the reference to Iran accepting Iranians with valid Iranian travel documents does not extend to a person in the appellant's position. The appellant does not have valid travelling documents, and there was no suggestion before the Authority that she could be provided with them to aid in an involuntary return (see para 16 of its reasons quoted at [47] above), and the appellant did not assert otherwise.

52    Having considered the matters summarised at [43]-[50] above, the Authority found that the appellant did not have a well-founded fear of persecution, and did not meet the requirements of the definition of a refugee.

53    For similar reasons, the Authority found that the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Authority accepted that the appellant and her family were subjected to threats after a rejected marriage proposal, but as her and her family remained in Iran at her usual residence until 2012, and she went about her ordinary daily activities, the Authority did not accept there was a real risk of significant harm from the particular man or the Savari tribe more generally on return to Iran after some four years.

54    Whilst the Authority accepted that the appellant might be perceived as Christian, it considered there was no evidence to indicate that in Iran she would act in a way so as to attract attention of Iranian authorities, and so it did not consider that she would face a real risk of significant harm from Iranian authorities as a result of her being perceived to be Christian.

55    The Authority repeated its finding at para 21 (quoted at [50] above) in the context of whether there was a real risk of suffering significant harm. The Authority concluded that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia there is a real risk that the appellant will suffer significant harm.

Before the Federal Circuit Court

56    The appellant raised three grounds of review before the Federal Circuit Court.

57    By the first ground, the appellant alleged that the Authority engaged in jurisdictional error by failing to consider a claim raised by the appellant, by failing to ask itself the right question or by taking into account an irrelevant consideration. Relevantly, the appellant argued that the Authority failed to take into account a relevant consideration by not reaching a conclusion on the likelihood of the appellant suffering persecution or significant harm on a forced return to Iran, because it did not accept there was a real chance the appellant would be forcibly returned to Iran.

58    It is to be recalled that the Submission was to the effect that the claim, said to be implicit in the materials, was that in the event that the appellant was forcibly returned to Iran, there was a real risk and a real chance of interrogation, exposure of the fact that the appellant's daughters had converted to Christianity and that the appellant had participated in Christian activities, and that as a result the appellant would be harmed or mistreated.

59    The primary judge determined the ground having regard to the fact that the Authority did not accept that there is a real chance the appellant would be forcibly returned to Iran in the reasonably foreseeable future. Because the Authority provided an unambiguous answer in finding there was not a real chance of involuntary removal, the primary judge found that it was unnecessary for the Authority to go further as to the issue of the likelihood of persecution or significant harm because of such interrogation on return, relying upon CLS15 v Federal Circuit Court of Australia [2017] FCA 577 at [58] (Charlesworth J). The primary judge concluded that the fundamental premise underpinning the claim does not exist.

60    According to the primary judge, the appellant asserted that on the proper construction of the Migration Act, the nature of the removal (whether voluntary or involuntary) is not relevant to the decision-maker's consideration of whether a person would face persecution upon return.

61    The primary judge rejected this assertion on two grounds. First, the primary judge said that CLS15 provided authoritative direction as to how such circumstances ought to be dealt with, and that the effect of the appellant's submission was to impermissibly invite the Federal Circuit Court to decline to follow an otherwise binding judgment of a superior court. Second, his Honour said that as a matter of statutory construction, the question of a real chance of a well-founded fear of persecution only arises 'if the person returned to the receiving country', referring to the text of s 5J(1)(b) of the Migration Act. In this case, the primary judge said, the prospect of such a return does not arise in the reasonably foreseeable future.

62    The second ground of review amounted to a challenge to the merits of the Authority's findings. The ground was that the Authority erred by finding that the vandalism of the appellant's salon, the firing upon the family home, the vandalism of her husband's car and his relocations were unconnected with the fear of harm arising from the rejected marriage proposal, when such finding was not open on the evidence.

63    The primary judge noted that the Authority was not obliged to accept the appellant's evidence uncritically; and that the Authority was not wrong in describing the claim as speculative and in referring to the lack of evidence (the appellant's written submissions before the primary judge apparently acknowledged that the appellant did not know for sure that there was a definite link, but those submissions were not before this Court). The primary judge noted that the court must consider whether, on the basis of probative evidence and material, a logical decision-maker could have come to the same conclusion as the Authority, citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131], [135] (Crennan and Bell JJ). The primary judge found that there was a sufficient basis for the Authority to come to the conclusions the subject of ground 2, and that intervening would amount to re-determining the matter on the facts. The primary judge therefore dismissed ground 2.

64    The third ground was not revisited on this appeal and it is not necessary to consider it further.

65    The primary judge accordingly dismissed the application for judicial review.

Grounds of appeal

66    The appellant had some assistance with respect to the preparation of her appeal grounds and written submissions, although she was not formally represented at the hearing. She appeared with the assistance of an interpreter. The appellant sought to rely on an amended notice of appeal, and that course was not opposed by the Minister. Although at times the grounds or particulars refer to errors of the Authority, they are to be read on the basis that the appellant alleges that the primary judge erred in failing to find the alleged errors on the part of the Authority.

67    The amended grounds of appeal relied upon were:

1.    The Federal Circuit Court erred by failing to take into account relevant considerations.

Particulars

1.1    The Federal Circuit Court failed to consider whether the appellant is at a real risk of harm if she is forcibly returned to Iran.

1.2    Instead, the Federal Circuit Court relied on the finding of the [Authority] that 'there was not a real chance the applicant would be forcibly returned to Iran' and therefore that it was 'unnecessary for the [Authority] to go further as the issue of the likelihood of persecution or significant harm on return to Iran does not arise'.

1.3    However, the Federal Circuit Court needed to consider whether the appellant would be at real risk of harm however she might be returned to Iran, whether voluntarily or involuntary.

1.4    The only question for the [Authority] and the Federal Circuit Court was whether the appellant satisfies the criteria under section 36(2)(a) and/or 36(2)(aa) of the Migration Act.

1.5    By refusing to consider this risk, however it might arise, the Court has failed to take into account relevant considerations.

2.    The Federal Circuit Court erred by failing to ask itself the right question.

Particulars

2.1    The Federal Circuit Court failed to ask itself the right question in considering the appellant's claim, the right question being: 'does the Applicant have a well-founded fear of persecution if returned to Iran?' Or: 'is there a real chance the Applicant will face serious or significant harm as a perceived Christian and failed Iranian asylum seeker if returned to Iran?'

2.2    Instead, the Federal Circuit Court asked itself whether the appellant would be able to return to Iran as an involuntary returnee.

2.3    As per DFA18 v Minister for Home Affairs [2019] FCCA 258, 'it really matters not whether the Applicant will be a voluntary or an involuntary returnee to their country of origin because that is not what the [Authority] needs to consider. The [Authority] needs to consider what will happen if and when the Applicants are returned to their country'.

3.    The Federal Circuit Court erred in reaching a decision that is unreasonable.

Particulars

3.1    The Federal Circuit Court reached the unreasonable decision that there was no link between the violence and harassment endured by the appellant and her family and her daughter's rejection of a Savari tribe member's [redacted] advances toward her.

3.2    The Federal Circuit Court concluded 'there was not a significant body of evidence on which to draw and in those circumstances the [Authority] was not incorrect to describe the claim as speculative …'

3.3    However, the appellant articulated clear reasons that linked the violence and harassment experienced by her and her family, to her daughter's rejection of [redacted's] advances. Further, the [Authority] accepted many of these events occurred. There was no evidence before the [Authority] which could support a conclusion that the violence and harassment was not linked to the appellant's daughter's rejection of [redacted]. In concluding there was no link the [Authority] unreasonably reached a decision that was not supported by the evidence.

Consideration

Ground 1

68    It is important to note that by the particulars, the appellant contends that the Authority had to consider whether she would be at real risk of harm however she might be returned to Iran, whether voluntarily or involuntarily.

69    As noted, the Submission before the Authority expressly referred to a claim that was said to be inferred based upon a forcible (non-voluntary) return. The error was said to relate to the failure to consider that claim. It was not suggested in the Submission that the delegate had erred by having regard to the potential consequences of a voluntary return.

70    Having regard to country information, which the Authority identified as the DFAT Report 2016, it concluded that the appellant would not be returned to Iran forcibly and Iranian overseas missions will not issue travel documents to facilitate any such involuntary returns.

71    Therefore, any further pursuit by the Authority of the potential consequences for the appellant in Iran because of any forcible removal and absent any travel documents was hypothetical. It is unclear what evidence the Authority could properly have considered about the consequences of the appellant's involuntary return, when the country information disclosed that no such returnees were being accepted by Iran at the time. Consideration of the purported consequences would likely have been speculative.

72    It is not the case that the Authority did not consider the question of forcible or involuntary return. It did so. It concluded that it did not accept that there is a real chance the appellant would be forcibly removed to Iran in the reasonably foreseeable future, thus undermining the fundamental premise upon which the claim was founded. Failure to embark upon a further process of speculation about the effects of hypothetical circumstances that the identified country information revealed would not arise, did not constitute jurisdictional error. From the reference to 'real chance' (in its para 16) it is apparent that the Authority had regard to the definition of 'well-founded fear of persecution' in s 5J(1) and found that the criteria were not met.

73    Therefore the only reason the appellant's claims of the consequences for her upon a return to Iran remained relevant was in the context of a voluntary return. That was the only way she might return to Iran.

74    The consequence of a voluntary return, a matter that by ground 1 of the amended notice of appeal the appellant contended needed to be addressed, was in fact addressed by the Authority. Indeed, it can be assumed that in the face of that ground of appeal, the appellant might have contended that the Authority would have erred if it had failed to continue to consider the claims in the context of a voluntary return.

75    In particular the Authority:

(a)    considered the consequences of action by the identified man or the Savari tribe, but did not accept that she faced a real chance of harm from them on a return that would be some four years after the events;

(b)    considered the claim of gender discrimination as a woman, but found it did not consider the appellant faces a real chance of serious harm on that basis;

(c)    considered the consequences on arrival for a voluntary returnee, noting they will generally only be questioned if they attract attention, and so found that the prospect of the appellant being questioned were remote;

(d)    considered the consequences of her returning and being perceived to be a convert to Christianity, and found that there was no evidence that she would attract attention on that basis, and so it was not considered that she would face persecution for that reason; and

(e)    considered the consequences for a voluntary returnee as a failed asylum seeker, noting it is not a criminal offence to seek asylum and finding in the absence of any dissident profile, there is no real chance the appellant would be harmed for that reason.

76    The Authority's complementary protection assessment thus also proceeded on the basis of the consequences of a voluntary return, the Authority having already assessed that there was no basis upon which a return to Iran would be a forced removal.

77    I do not consider any error is disclosed in the Authority's reasoning. It undertook the statutory task required of it. Its absence of satisfaction as to involuntary return was well-founded. It then assessed the appellant's claims premised on a voluntary return, the only return potentially open in the circumstances.

78    It is important to consider this outcome having regard to the respective authorities referred to by the primary judge and the parties.

79    There are some similarities between the facts of this matter and those of CLS15. In CLS15 the appellant, an Iranian national, also arrived in Australia without travel documents. He claimed he would suffer persecution if he were returned to Iran as a failed asylum seeker. He claimed to have converted to Christianity. He claimed he would be stopped and questioned upon return as a failed asylum seeker, and his claim to have converted to Christianity would be revealed to authorities. His claim was clearly articulated on the premise that he would be 'forced' to return to Iran if he were not granted a protection visa: at [41].

80    It appears that the Tribunal in CLS15 relied on similar country information to that relied upon by the Authority in this case. The Tribunal noted that 'Iran says it does not accept involuntary returnees' and that 'Iranian overseas missions will not issue travel documents to an Iranian that a foreign government wishes to return involuntarily': at [31].

81    The appellant contended that the Tribunal had not assessed his claim that he would only return involuntarily. However, as Charlesworth J found, the Tribunal disclosed confused thinking as to whether the appellant's claim was based on a voluntary or involuntary return. The primary judge appeared to assume that the Tribunal proceeded on the basis that a return would be involuntary, but then also proceeded to consider the appellant's claims of persecution if he were so returned. The Minister submitted on appeal that it was to be inferred that the Tribunal proceeded on the basis that any return was voluntary. This submission was rejected by her Honour:

[57]    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.

…

[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.

82    As Charlesworth J explained, it was the Tribunal's reasoning process in CLS15 that led it into error. The Tribunal failed to address the protection claim before it and so failed to apply the statutory criteria.

83    In contrast, in this case it is clear that the Authority considered the claim to which the appellant's lawyers expressly drew attention in their Submission. The Authority referred to the Submission (para 4 of its reasons) and recited it (para 16 of its reasons). It considered and found that the appellant would not be returned to Iran involuntarily. It dealt with that claim unambiguously.

84    There is, however, a further distinguishing feature of this case when compared with CLS15. It is to be recalled that by ground 1 the appellant contends that the Authority was also obliged to consider the consequences of a voluntary return. In contrast to CLS15, it is by no means apparent from the appellant's claim that she would not return voluntarily under any circumstances. Therefore it is not surprising that the Authority also considered the appellant's protection claims in the context of a voluntary return, a consideration said to be relevant by ground 1 of this appeal. The outcome of that consideration in any event makes no difference to the finding that the Authority was not satisfied that the appellant would be returned involuntarily.

85    The present case shares some similarities with EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 (Logan J). In EYJ17 there was no material before the Tribunal that suggested the visa applicant would only return to Iran involuntarily. The visa applicant's claims were not premised on any forcible return. As in this case, the Tribunal member found on the basis of the country information that they were not satisfied that the visa applicant would be returned to Iran involuntarily, and then proceeded to consider the claims in the circumstances of a voluntary return, as the only way the visa applicant would be returned to Iran in the foreseeable future was as a voluntary returnee. No jurisdictional error was found in that approach.

86    The appellant referred to the decision in DFA18 v Minister for Home Affairs [2019] FCCA 258. In that case, Judge Vasta suggested that even where there is no prospect of an involuntary return, the decision-maker is obliged to make findings about the consequences if the person were returned involuntarily. Judge Vasta said:

[39]    But in some ways, when I look at the matter, and whilst what I am saying is probably contrary to what was said by Charlesworth, J in CLS15, it seems to me that this does not matter. It really matters not whether the Applicant will be a voluntary or an involuntary returnee to their country of origin, because that is not what the IAA needs to consider. The IAA needs to consider what will happen if, and when, the Applicants are returned to their country.

[40]    What has occurred in this case is that the IAA has noted the DFAT information that involuntary returnees will not be allowed into Iran. If that is so, then that is so. But the IAA's role is not to then say, 'well, that is the end of the matter'. The IAA's role is to look at what will happen if they are returned, and this is what this IAA has done. The criteria that the IAA have to look at as to whether s.36(2)(a), being the refugee criteria, or s.36(2)(aa), the complementary criteria, have been satisfied.

87    If Judge Vasta in DFA18 was suggesting that a decision-maker, having considered and dismissed the prospect of forcible removal, was then obliged in order to properly undertake its statutory task to consider a hypothetical claim premised on such involuntary return, then such suggestion was inconsistent with the decision of Charlesworth J, exercising appellate jurisdiction, in CLS15. Had the facts not been distinguishable, I would in any event not have departed from CLS15 insofar as Charlesworth J found that if the decision-maker accepted country information that there would be no involuntary return, then it would be unnecessary for it to continue to consider the likelihood that an applicant would be persecuted or suffer significant harm on such involuntary return. As Charlesworth J said, 'The appellant could either be forcibly returned to Iran or he could not': at [58].

88    Returning to the present case, the conclusion I have reached at [77] is consistent with the authorities. I note that the appellant has not challenged the conclusion that there was no real chance that she would be forcibly returned to Iran. Nor did she challenge the fact that she had no travel documents. She accepted in written submissions that these matters were uncontentious before the Authority.

89    The primary judge correctly dismissed this ground when raised on similar terms before him. No error is disclosed on the primary judge's part and ground 1 must be dismissed.

Ground 2

90    By ground two the appellant contends that the Authority failed to ask itself the right question in considering the appellant's claim and should have instead asked:

(a)    does the appellant have a well-founded fear of persecution if returned to Iran; or

(b)    is there a real chance the appellant will face serious or significant harm as a perceived Christian and failed Iranian asylum seeker if returned to Iran?

91    This traverses the same ground as ground 1. Those questions are conditioned by the important 'if'. The Authority was not satisfied that there was a real chance that the appellant would be forcibly returned to Iran. It proceeded to consider the appellant's claims against the findings of fact if returned, but in the context of the manner of return that might be contemplated, being a voluntary return. This included considering the questions at [75] above.

92    The Authority considered those questions having regard to both s 36(2)(a) and s 36(2)(aa), and no jurisdictional error is disclosed. The primary judge did not err in failing to find jurisdictional error.

Ground 3

93    This ground attacks the Authority's reasoning relating to findings about the Savari tribe and the marriage proposal. The appellant submitted no logical decision-maker could have come to the same conclusion as that of the Authority in finding that there was no link between the violence and harassment endured by her family following the rejection of the marriage proposal. It was agreed that the principles articulated by Crennan and Bell JJ in SZMDS at [130]-[131] were to be applied.

94    The appellant submitted that clear reasons were provided that linked the 'violence and harassment experienced'. She noted in particular that the Authority accepted that the events relating to the Savari tribe and the man's proposal had occurred. According to the appellant, it follows that the Authority, reasoning logically and rationally, should have come to the conclusion that the harassment and threats were undertaken by the Savari tribe. The appellant draws attention to the threats made to her at the hair salon; the smashing of the salon windows a week later; the shop being vandalised but nothing stolen (and an attack never previously having happened); and attacks only occurred after the difficulties with the tribe began. The appellant emphasised that there was no evidence to suggest that the events were not linked to the Savari tribe, and so it was unreasonable to reject that part of the claim.

95    The appellant submitted that there was a large body of evidence that demonstrated the violence and harassment and that to gain further evidence 'would require gathering the internal thoughts of the persecutors'.

96    No error of principle is revealed in the primary judge's statements that the Authority was not required to uncritically accept the appellant's evidence; that the Authority did not need rebutting evidence to conclude that it did not accept the appellant's assertions; that the Court must consider whether a logical decision-maker could have come to the same conclusion as the Authority based on the evidence and material; and that the Court cannot intervene merely because it disagrees with the factual conclusions.

97    The Minister properly characterised the appellant's ground 3 as seeking review of the merits of the Authority's decision. The Minister drew attention to fact that the appellant was seeking that the Authority draw an inference of the link to the Savari tribe from the timing of the various incidents. The Authority having considered and found that there was a lack of supporting evidence of such link, its refusal to draw an inference of a link was not an irrational or illogical conclusion.

98    The Authority was not obliged to accept the appellant's claim uncritically. It gave reasons explaining why it was not satisfied that the link to the Savari tribe was established. The Authority's reasoning was disclosed and cannot fairly be described as irrational or illogical, even if others might have reasoned differently. No jurisdictional error was disclosed by the Authority's reasons in this regard, and the primary judge did not err in failing to find any such error.

Supplementary submissions

99    There was some inconsistency revealed during the hearing as to the manner in which the appellant's claims were made. Neither the Submission before the Authority nor the considered written submissions filed by the appellant for the purpose of this appeal stated that it was any part of the appellant's claim that she would never have returned voluntarily. In her oral submissions the appellant said that it was 'absolutely obvious' that she would never give her consent to go home.

100    Following the hearing, having reflected on the materials before the Court and the appellant's oral submissions, I invited the parties to provide supplementary submissions addressing whether or not it could properly be asserted that part of the appellant's claim was that she would never return voluntarily, having regard to both CLS15 and EYJ17, and whether the issue of indefinite detention, raised by Charlesworth J in CLS15 at [62] had any role in the current circumstances. I am grateful to both the Minister and the appellant for providing supplementary submissions. In CLS15 the expression 'indefinite detention' was used to describe the legal consequence of refusal of a protection visa that an applicant might be detained as a non-citizen and might be held in immigration detention pending a change in attitude by Iranian authorities towards the return of involuntary returnees.

101    In the end the supplementary submissions did not have an impact on the resolution of the appeal, but it is appropriate to address some of the matters raised.

102    First, the appellant pursued an argument that the facts were indistinguishable from those in CLS15, noting that the primary judge had referred to CLS15 and said it was not distinguishable (at [15] of the primary judge's reasons). The appellant submitted that when the Authority proceeded to address what would be likely to happen to the appellant were she voluntarily returned to Iran, it was embarking on a process of fact-finding 'that was both unwarranted and apt to give rise to confusion, if not material error'. This submission appears to adopt the reasons in CLS15 at [60].

103    Second, the submission then built upon the comparison with CLS15, contending, presumably by reference to the reasons in CLS15 at [62], that the prospect of indefinite detention ought to have been considered because the Authority ought to have found that the appellant's claim did not include or comprehend a voluntary return to Iran, and the Authority was not satisfied there would be an involuntary return.

104    As to any direct application of CLS15, I have already found that the facts are distinguishable. It is true that the primary judge said at one point that CLS15 was not distinguishable, but that was in the context of the treatment of the circumstances of a forced return and whether it was necessary for the Authority to consider the hypothetical consequences of a forced return to Iran that it was not satisfied would occur. The primary judge did not suggest that all of the facts and arguments raised in CLS15 were not distinguishable: there were differences in the manner in which the claims were made, as I have discussed above.

105    Further, I am not satisfied that any claim was clearly made to the effect that the appellant would never return to Iran voluntarily. I am reinforced in this view by: first, the fact that the Submission, whilst drawing the Authority's attention to a claim related to forced return that it asserted had been overlooked, did not refer to any overlooked claim or clear indication of a refusal to return voluntarily, despite the delegate having addressed in their reasons the consequences of a voluntary return; and second, the appellant's assertion by ground 1 of the appeal that it was necessary for the Authority to consider the consequences of a return, whether voluntary or involuntary.

106    I have taken into account two matters disclosed by the materials.

107    First, the record of the appellant's arrival interview dated October 2012 includes a pro forma question:

As you may be liable for transfer to a regional processing centre do you wish to be considered for voluntary removal to your country of origin?

108    The response 'no' is circled by the interviewer.

109    I accept the Minister's submission that such a response is not surprising - the appellant was in that same interview seeking Australia's protection.

110    Second, in the written statement of her claims which accompanied her visa application, the appellant stated:

I would never go back to Iran. I fear that the Savari tribe because if they find us, they will kill us all.

111    I accept the Minister's submission that such statement was not addressed at the question of voluntary or involuntary return and, read fairly, the appellant was expressing the strength of her fear of harm from the Savari tribe. Nor was the statement addressed at the choices the appellant might make if there was any prospect of indefinite detention.

112    I am of the view that read fairly, and having regard to the matters at [105] above, the appellant's claims as advanced before the Authority did not exclude the possibility of voluntary return to Iran. The appellant's claim to fear persecution by reason of having been perceived as having converted to Christianity did not refer to either voluntary or forcible return. The claim highlighted by the Submission relating to persecution arising from the likelihood of interrogation and disclosure of her daughters' religious activity was expressly said to arise upon a forcible return and was addressed by the Authority accordingly. The claims were addressed by the Authority on the basis upon which they were put. An express finding was made as to involuntary return (in contrast to the error made by the Tribunal in CLS15). The Authority's assessment of the facts on the basis that any return would only be voluntary did not reveal error, in circumstances where it was not satisfied there would be any forcible return.

113    As to the question of indefinite detention referred to in CLS15 at [62], it is important to note the context in which it was raised.

114    It was not any failure to consider the prospect of indefinite detention that was said to constitute error. The matter arose in CLS15 in the context of whether it should be inferred that the Tribunal had found that the visa applicant would not be returned forcibly (recalling that her Honour found no unambiguous answer to the question of forced removal had been given by the Tribunal). Her Honour's reasoning was that a court should be slow to attribute an inference that a finding, which might be of such potential consequence, was considered and made. That is, the prospect of indefinite detention informed the way in which the Court would draw an inference from the reasoning of the Tribunal in circumstances of ambiguity. Her Honour's reasoning does not require the Minister to consider the prospect of indefinite detention in assessing whether an applicant has satisfied the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act.

115    In this case, the question of a finding about involuntary return by inference did not arise. The Authority made an express finding. The confusion referred to in CLS15 did not arise. The facts are more analogous to those in EYJ17, where on appeal it was determined that the Tribunal had not erred in its treatment of the question of involuntary return.

116    The Minister accepted that if the appellant refuses to return to Iran voluntarily, then (at the relevant time) there would be no foreseeable prospect of her removal to Iran, and so by reason of s 189 and s 196 of the Migration Act, the appellant's detention would continue, unless the appellant changed her mind and chose to return voluntarily. The consequence of not being granted a visa may be that a person is exposed to the possibility of indefinite detention. That potential is contemplated by the Migration Act.

117    However, the Minister submitted, and I accept, that regardless, the Authority was not obliged to consider the question of indefinite detention in the context of undertaking its statutory task under s 36 of the Migration Act.

118    Section 36(2)(a) and s 36(2)(aa) require an assessment of the risk of harm to a protection visa applicant if returned to their country of nationality. The terms of those sections (and the relevant definition sections) provide no scope for the decision-maker to consider the possibility of indefinite detention in Australia in making that assessment. Unlike, for example, aspects of s 501 and s 501CA of the Migration Act, those provisions are not structured so as to confer a discretion which would accommodate consideration of the potential for a person to face indefinite detention.

119    The Minister referred to two authorities that have considered the relationship between s 501 and s 501CA and other aspects of s 36 that illuminate this point.

120    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121; (2020) FCR 475, the Full Court said:

[129]    It is important next to recognise that, while the character provisions in s 36 (and related definitions) and s 501 overlap, there is no necessary inconsistency between the provisions. The provisions operate in different ways: if an applicant fails to satisfy the character provisions in the protection visa criteria, the application for a protection visa must be refused; whereas, if an applicant fails to satisfy the character provisions in s 501, the application may be refused. Thus there is no necessary inconsistency between the provisions.

121    A similar point was made in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456, where Bromberg and Mortimer JJ drew a distinction between the task required under s 65 and s 36(2)(a) or s 36(2)(aa) of the Migration Act - which require the Minister or his delegates to be satisfied of certain criteria and where non-satisfaction of any of those criteria requires refusal of the visa - and the exercise of the broad discretion in s 501CA, which is not restricted to the matters comprehended by s 36(2)(a) or s 36(2)(aa): at [49].

122    The appellant relied upon NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1. In that case, the visa applicant was assessed to be a refugee but there was no known prospect of finding a country to which he may be removed: at [130] (Buchanan J). Although Australia owed him protection obligations, the applicant did not pass the character test because of s 501(6)(aa). The Minister therefore had a discretion under s 501(1) to refuse a visa. The applicant was therefore subject to mandatory detention and removal from Australia as soon as reasonably practicable, being some indeterminate point in the future when his removal might be achieved. He was therefore placed in a form of 'legal limbo': at [121] (Buchanan J). The Court held that, in exercising the discretion under s 501(1), the Minister was required to take into account the legal consequences of his decision, including the prospect of indefinite detention in the context of the operation of the Migration Act. However, it was the decision to exercise the discretion under s 501(1) that was at the heart of the proceedings: at [6]-[10] (Allsop CJ and Katzmann J); at [63] (Buchanan J). Such discretion potentially accommodates an implied obligation to consider the legal consequences of the decision.

123    The decision in NBMZ is to be read having regard to BCR16 at [88] (Bromberg and Mortimer JJ), and the principles summarised in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [61].

124    However, none of that assists the appellant in this case. The line of authorities does not address or apply to the statutory task to be completed under s 36: that is, the task of determining whether or not the statutory criteria are satisfied for the particular visa applicant. That state of satisfaction is not conditioned by a requirement that there be an assessment of the legal consequences of the decision.

125    To the extent the appellant also referred to Kassem v Minister for Home Affairs [2019] FCA 1196; (2019) 271 FCR 1 (Stewart J), that case concerned the exercise of discretion under s 25 of the Australian Citizenship Act 2007 (Cth) and it was that discretion that Stewart J relied upon in finding that it was possible to imply an obligation to consider matters beyond the grounds on which the relevant power was enlivened: at [87]. Again, the case turned on the exercise of discretion.

Determination

126    It follows that the appeal is to be dismissed. Costs should follow the outcome in the usual way.

Associate:

Dated:    6 September 2021