Federal Court of Australia

ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

Background

1    The appellant is an Iranian national who left Iran claiming to fear harm there. He arrived in Australia by boat without a visa on 17 October 2012. As he arrived by boat he was an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) and prevented by s 46A(1) of the Act from making a valid application for a visa. On 6 January 2016, the Minister exercised his discretion under s 46A(2) to “lift the bar”, enabling the appellant to make a valid visa application. Later that month, he applied for a Safe Have Enterprise visa (SHEV).

2    On 1 September 2016, after an interview with him, a delegate of the Minister refused to grant the application because he was of the opinion that the appellant did not satisfy the criteria for the grant of a protection visa in ss 36(2)(a) or s 36(2)(aa). The Minister referred the decision to the Immigration Assessment Authority for review pursuant to s 473CA of the Act. On 30 January 2017 the Authority affirmed the delegate’s decision.

3    The appellant sought judicial review of that decision in the court below. That application was dismissed. It is from that decision that this appeal is brought.

The legislative scheme

4    The power to grant a visa vests in the Minister (s 65), although, like all powers conferred by the Act it may be delegated (s 496). Section 65 imposes a duty on the Minister to grant a visa to a non-citizen who has made a valid application and paid the requisite fee where the Minister is satisfied that the person satisfies the criteria for the visa set down in the Act or the regulations.

5    A SHEV is a class of temporary protection visa (s 35A(3A)). Particular criteria for a protection visa are set out in s 36 of the Act. Section 36 provides that a non-citizen in Australia will be eligible for that visa if the Minister is satisfied that Australia has protection obligations to that person for one or other of the following reasons:

(1)    The person is a refugee (s 36(2)(a)). This is known as the “refugee criterion”.

(2)    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 (s 36(2)(aa)). This is known as the “complementary protection criterion”.

(3)    A person is a member of the same family unit as a non-citizen referred to in ss 36(2)(a) or (aa) (s 36(2)(b)–(c)).

6    The term “refugee” is relevantly defined in s 5H of the Act to mean a person who is outside his or her country of nationality and “owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. A person has a “well-founded fear of persecution” if the person “fears being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion”; 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; and the real chance of persecution relates to all areas of the receiving country (s 5J(1)). For a person to have a “well-founded fear of persecution” under s 5J(1)(a), the reason for that fear must “be the essential and significant reason” for the persecution, the persecution must involve “serious harm” to the person, and it must also involve “systematic and discriminatory conduct” (s 5J(4)).

7    Without limiting what constitutes serious harm, the Act provides in s 5J(5) some “instances” of “serious harm”.

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

8    In order to suffer “significant harm” for the purpose of satisfying the complementary protection criterion, s 36(2A) provides:

A non-citizen will suffer significant harm if:

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

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

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

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

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

9    The decision to refuse the SHEV was a “fast track reviewable decision” within the meaning of s 473BB of the Act because the appellant was a “fast track applicant” and the decision to refuse the visa was a “fast track decision” within the meaning of those terms in s 5 of the Act. The appellant was a “fast track applicant” because he was an unauthorised maritime arrival who entered Australia between 13 August 2012 and 1 January 2014 and had made a valid application for a protection visa (s 5). The Minister is required to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made (s 473CA). The Authority is then required to review it (s 473CC).

10    Unlike merits review under Pt 7 of the Act, which applies to reviews of decisions of the Minister or the Minister’s delegate to refuse to grant a protection visa to a non-citizen who is not a fast track applicant, the review of fast track reviewable decisions is a limited one. Unlike other applicants for a protection visa, a fast track applicant who is aggrieved by such a decision has no right to a hearing. Rather, save in limited circumstances the review by the Authority is required to be conducted “on the papers” without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)).

11    There is no right of appeal from a decision of the Authority (s 474). The only available remedy from an adverse decision is to have the decision quashed for jurisdictional error (s 476).

The appellant’s claims

12    The appellant claimed to fear harm at the hands of his former father-in-law, who, he said, occupied an important position in Iran’s Ministry of Intelligence and was politically powerful. After the appellant discovered his wife was having an affair, he attempted to divorce her but his former father-in-law threatened to send him to jail or “cause him trouble” if he did. Shortly thereafter the appellant was charged with various offences, including beating his wife, religious conversion and preaching Christianity, which the appellant believes were concocted by his former father-in-law. He was subsequently dismissed from his employment, banned from leaving the country, sentenced to a year’s imprisonment or a fine of 200 million Riyals (then about AUD 25,000). He was also subjected to other harm and indignities, including being apprehended, held in a detention centre and fined for having tattoos on his arm.

13    The appellant claimed that in March 2012 his former brother-in-law, who was a powerful lawyer, told him the family regretted what had happened to him and offered to help “close” all the court cases brought against him. But when the appellant visited his office to do so, he was threatened at gunpoint by armed men and forced to sign some documents. They also took his birth certificate and national identity card.

14    About six months later, the appellant received a parcel containing his identity documents, a “divorce certificate”, and papers with his signature giving his brother-in-law power of attorney to divorce his wife. He was later told by a friend that the authorities were planning to ban him from leaving Iran because they had discovered letters with his signature in which he purportedly confessed to religious conversion and heresy for which he could be executed.

15    He fled the country in fear for his life.

The Authority’s reasons

16    The Authority accepted that the appellant was an Iranian citizen. For the most part, however, it did not accept that the appellant’s claims were credible. In particular, it found his account about the court proceedings implausible and it did not accept that he had been threatened by any member of his ex-wife’s family.

17    In relation to the appellant’s claim to have been detained for having tattoos (the tattoo claim), the Authority said this at [20] of its reasons:

The applicant claims that because of the tattoos on his arm and back, he was detained briefly in Iran, fined and released. I accept that a person may come to the attention of Iranian authorities for having tattoos. However, DFAT is unaware of any recent, specific report of people being targeted by security forces solely for having a tattoo. It is possible that a person with a visible tattoo could come to the attention of security forces and result in low-level harassment. While DFAT is not aware of specific penalties that could be imposed for having a tattoo, it is likely that such penalties would be similar to those imposed for dress or hair styles that are deemed ‘improper’. In these circumstances, the usual penalty is a warning or fine. I accept that the applicant may have been detained and fined previously as a result of his tattoos, however DFAT assesses it unlikely that authorities would maintain an interest in someone who had previously come to their attention for having a tattoo, unless the tattoo gave evidence of another crime (eg. related to national security). There is no evidence to indicate that the applicant’s tattoos depict controversial symbols or images or that they would be of continuing interest to Iranian authorities. The applicant does not have an activist profile and there is no evidence to indicate he would be perceived by Iranian authorities as a threat. On the available evidence I am not satisfied that applicant faces a real chance of serious harm from Iranian authorities on account of his tattoos.

18    It is by no means clear from the Authority’s reasons, the SHEV application or the SHEV decision that, by making the tattoo claim, the appellant was invoking the refugee criterion. In the court below, however, the appellant submitted that he was a member of the social group of “people with tattoos”. His claim that there was a real chance of persecution involving serious harm to the person was founded on s 5J(5)(a), namely that there was a threat to his life or liberty.

19    The Authority found that the appellant’s lack of Islamic religious observance did not expose him to a real chance of serious harm in Iran and neither did his claimed interest in Christianity or his recent marriage to a Christian.

20    The Authority concluded that the appellant did not meet the definition of a refugee in s 5H and therefore the refugee criterion in s 36(2)(a).

21    The Authority was not satisfied that the appellant met the complementary protection criterion either. Relying on its findings in relation to the refugee criterion, the Authority found that the appellant’s claims regarding his court appearances were not credible and that, as a result, it did not consider that he will face a real chance of significant harm “on account of any claimed court appearances or penalties” (at [27]). Similarly, the Authority was not satisfied that there was a real risk of the appellant suffering significant harm on account of his claimed interest in Christianity, his new wife’s religious beliefs, and his non-observance of Islamic religious practices.

The application below

22    Two grounds of review were included in the originating application. By a further amended application, the appellant abandoned the first ground, made a slight amendment to the second, and inserted a third. Grounds 2 and 3 were said to be interrelated.

23    In ground 2 the appellant alleged that the Tribunal (scil. Authority) failed to consider the appellant’s claim that he might suffer serious or significant harm on account of him being detained for being tattooed, including by engaging in “unreasonable fact finding and reasoning and by failing to give proper, genuine and realistic consideration to the matter”. In particular, the appellant submitted that the Authority overlooked his former father-in-law’s role in his arrest and detention and did not consider the tattoo claim in the context of the complementary protection criterion.

24    In ground 3 the appellant alleged that the Tribunal (scil. Authority) unreasonably failed to consider the evidence relating to the appellant’s detention on account of having tattoos when determining whether his claim to have an adverse profile should be accepted.

The reasons of the primary judge

25    The primary judge dismissed both grounds.

26    In relation to ground 2, his Honour did not accept that the Authority failed to take into account the appellant’s claim about his father-in-law’s part in his detention for having tattoos because he said it was apparent from the Authority’s summary of his claims that it had (at [62]). His Honour referred to the Authority’s findings in relation to the tattoo claim extracted above and found that the Authority had “genuine intellectual engagement” with this claim (at [64]). He also rejected the appellant’s contention that the Authority failed to consider the tattoo claim in the context of the complementary protection criterion. His Honour accepted the Minister’s argument that the Authority’s reference to “court appearances or penalties” at [27] of its reasons, where it was dealing with the complementary protection criterion, subsumed its findings in relation to the penalty the appellant received for having tattoos that it identified at [20] of its reasons (at [65]).

27    In relation to ground 3, his Honour held that the Authority did not fail to consider the tattoo claim (at [70]). He also held that its adverse finding was not legally unreasonable because it had provided an “evident and intelligible justification” for that finding, namely, the absence of an activist profile, the content of the tattoos and the appellant’s experience of having been released and fined (at [70]).

The appeal

28    The notice of appeal contains two grounds:

1.     The Federal Circuit and Family Court of Australia (the Court) erred in failing to find that the second respondent, the Immigration Assessment Authority (the Authority), committed jurisdictional error by:

a.    failing to consider whether the appellant would be at risk of suffering serious or significant harm on account of being detained for being tattooed; and

b.     failing to have regard to a critical factual matter when considering that issue.

Particulars

i.     The Court erred in accepting that the last sentence of paragraph 27 of the Authority’s reasons concerned the Applicant’s complementary protection claim in relation to his tattoos; and

ii.    The Court erred in concluding that the Authority ‘had a genuine intellectual engagement with the applicant’s claim’ when the Authority failed to have regard to the Applicant’s past imprisonment when considering the possibility of his future imprisonment.

2.     The Court erred in failing to find that the Authority committed jurisdictional error by failing to consider the Applicant’s claim, and related evidence, that linked his detention on account of having tattoos to the persecution orchestrated by his father-in-law.

Particulars

a.    The Court erred in concluding that the Authority’s rejection of specific aspects of the Applicant's claim constituted consideration (and rejection) of the appellant’s claims in relation to the influence of his father-in-law on his detention for having tattoos.

29    As it was argued, the appeal raised three issues:

(1)    whether the Authority failed to consider the tattoo claim for the purpose of determining whether the appellant was at risk of serious or significant harm (ground 1(a));

(2)    whether, when considering whether the tattoos gave rise to a well-founded fear of persecution, the Authority failed to have regard to the fact of the appellant’s past detention (ground 1(b)); and

(3)    whether the Authority only considered a general claim of persecution due to tattoos, rather than the actual claim made by the appellant, which was one of fear of persecution due to both his tattoos and the influence of his father-in-law (ground 2).

30    With one qualification, it was not in dispute that if any of these issues was resolved in the appellant’s favour, the Authority would have fallen into jurisdictional error. The qualification relates to the question whether, if there were an error, the error was material, that is to say, if the error had not been made, there was a realistic prospect that the result could have been different: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ).

Did the Authority fail to consider whether the appellant was at risk of serious or significant harm because of his tattoos (ground 1(a))?

31    Despite the way in which this ground was couched, the appellant’s submissions focussed on [27] of the Authority’s reasons, which were concerned with the risk of significant harm in connection with the Authority’s consideration of the complementary protection criterion. There, the Authority stated:

I have found that the applicant has not been threatened by members of his ex-wife’s family and am not satisfied that the applicant faces a real risk of significant harm in this regard on return. I have not accepted as credible his statements regarding court appearances, the outcome of the court case or that he lost his citizenship rights, that he was investigated several times in different areas whenever he travelled, that he had been blacklisted or that he could not apply for government jobs. I do not consider that he will face a real risk of significant harm on account of any claimed court appearances or penalties.

(Emphasis added.)

32    The appellant submitted that, contrary to the finding of the primary judge, the last sentence could not be interpreted as subsuming the Authority’s findings concerning the tattoo claim. The appellant argued that the reference to “claimed court appearances or penalties” was plainly a reference to the alleged court appearances and their outcome discussed in the previous sentence, which were not found to be credible, rather than his detention on account of his tattoos, which the Authority had accepted to be true.

33    In oral argument the appellant’s counsel, Mr Lawrence, submitted that it would be surprising if the Authority’s reference to “court appearances or penalties” in [27] of its reasons were intended to dispose of the tattoo claim given that it was considered under the refugee criterion in a “different way”. He argued that the definition of significant harm extended to an “extended deprivation of liberty” and therefore the appellant’s claim to have been detained for three days would ”loom large” in the assessment of the complementary protection criterion. In the circumstances, he contended, the omission of a reference in [27] to that claim demonstrated that the matter was overlooked.

34    The Authority was required to engage, in an active and intellectual sense, with the merits of the appellant’s claims. To fail to do so may amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; 73 ALD 321 at [86]–[89] (Kirby J).

35    But a finding that a decision maker has not considered a claim is not to be made lightly: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [48] (Griffiths, White and Bromwich JJ). Moreover, a decision maker’s reasons should not be construed “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). And the Authority’s reasons should be read as a whole: BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515 at [12] (North and Charlesworth JJ).

36    The Minister contended that the last sentence at [27] of the Authority’s reasons was a reference to the tattoo claim which was addressed in the context of the refugee criterion. He argued that it was open for the Authority to adopt its factual findings in respect of the refugee criterion in support of its findings made pursuant to the complementary protection criterion, citing SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57] (Robertson J); SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [35] (Robertson, Griffiths and Perry JJ).

37    There was no express reference in [27] to the tattoo claim. Nor did the Authority expressly adopt its factual findings concerning the tattoo claim when considering whether the complementary protection criterion was satisfied. I am persuaded, however, that when they are read in context and in accordance with the principles to which I have referred, the Authority’s reasons at [27] indicate that it was disposing of the appellant’s complementary protection claims by reference to its earlier findings concerning the refugee criterion in the same order in which they were considered there. In the penultimate sentence of [27], the Authority stated that it did not accept as credible the appellant’s claims regarding his court appearances or the outcome of those cases (as addressed at [10]–[18] of it reasons), that he lost his citizenship rights (addressed at [15]), that he was investigated several times in different areas when he travelled, that he was blacklisted, and that he could not apply for government jobs (also addressed at [15]). The conclusion in the last sentence of [27] — that the appellant did not satisfy the complementary protection criterion — was plainly based on these earlier findings.

38    Notably missing from this summary was any mention of the tattoo claim or the appellant’s apprehension and detention on account of his tattoos. I do not accept that the reference to “any” claimed court appearances in the last sentence of [27] captured the tattoo claim as the Authority’s reasons indicate that the appellant did not allege that he appeared in court on account of his tattoos. In argument, however, the Minister drew attention to the multiple references to penalties in [20] where the Authority expressly dealt with the tattoo claim. He submitted that it was implausible that the Authority was not alluding to its previous findings on this subject when referring to “penalties” in [27].

39    In the absence of any other references in the Authority’s reasons to “penalties”, I accept the Minister’s argument. The Authority’s decision must be read fairly and as a whole. It is reasonable to infer that in the last sentence of [27] the Authority was referring to, or at least including, the risk of exposure to penalties for being tattooed.

40    The Minister submitted that, even if the Authority failed to address the tattoo claim in this context, the Authority’s findings on this issue at [20] of its reasons were “sufficiently dispositive” for the purposes of both the refugee and complementary protection criterion. The Minister contended that, as the Authority concluded that the appellant would not face a “real chance of serious harm” for the purpose of the refugee criterion, it also would have found that there was not a “real risk of significant harm” for the purpose of the complementary protection criterion.

41    This is essentially a question of materiality. It is settled that an error of this kind will not be jurisdictional unless it could realistically have led to a different outcome, a matter upon which the applicant bears the onus of proof: SZMTA at [4], [45] (Bell, Gageler and Keane JJ). In MZAPC v Minister for Immigration and Border Protection [2021] HCA 173; 95 ALJR 441; 390 ALR 590 at [37]-[38], Kiefel CJ, Gageler, Keane and Gleeson JJ explained that, in order to determine whether an error was material, a court must undertake a counter-factual analysis. Their Honours approved the statement by the Full Court in BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at [88] (McKerracher, Colvin and Jackson JJ) that “[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case”. Their Honours explained that the obligation is on the applicant to prove on the balance of probabilities all the historical facts necessary to enable the court to be satisfied of the realistic possibility of a different conclusion absent the error.

42    I accept the Minister’s contention. The “real chance” test under ss 5J(1) and 36(2)(a) is the same as the “real risk” test under s 36(2)(aa): Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246] (Lander and Gordon JJ, Besanko and Jagot JJ agreeing at [296] and Flick J at [342]). In other words, the level of risk required under both the refugee criterion and the complementary protection criterion is the same: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [36] (Kenny, Kerr and Perry JJ). And, while the “serious harm” and “significant harm” tests are not necessarily synonymous, the nature of the harm the appellant claimed to face was the same. There was no dispute that arbitrary detention could satisfy the definitions of both serious and significant harm. In the circumstances, I am not persuaded that the outcome could have been any different if the alleged error had not been made.

43    It follows that, even if the Authority overlooked the tattoo claim when addressing the complementary protection criterion, I am not persuaded that the oversight amounts to a material error.

Did the Authority fail to consider the appellant’s past detention for having tattoos when considering the possibility of future detention (ground 1(b))?

44    It will be recalled that there are two particulars to this ground.

45    In the first particular the appellant alleges that the primary judge erred in accepting that the last sentence of [27] of the Authority’s reasons captured the appellant’s complementary protection claim in relation to his tattoos.

46    For the reasons given in relation to ground 1(a), I am not satisfied that the first particular is made out.

47    In the second particular the appellant alleges that the primary judge erred in concluding that the Authority had “genuine intellectual engagement” with the appellant’s claim since it failed to have regard to the appellant’s past imprisonment when considering the possibility of his future imprisonment for the purposes of deciding whether he was a refugee.

48    The appellant submitted that, despite the fact that the Authority had accepted that the appellant had been arbitrarily detained for an “extended period” on account of his tattoos, it failed to give “genuine and realistic consideration” to the potential prospective risk of arbitrary detention on account of his tattoos. He argued that the Authority needed to grapple with the consequences of its own findings of fact, citing FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another (2020) 274 FCR 612 at [46]–[51]. The real question, he submitted, was whether he could be detained again if he were to return to Iran. He argued that the Authority could not reasonably dispose of the claim by reference to “generic country information” in the way that it did.

49    In FMN17 Steward J held that the application of s 36(2)(aa) “mandates the making of a prediction about the future” in order to consider whether the applicant faces a real risk of significant harm (at [50]). His Honour applied the following remarks of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–575 to the need to form a view about the risk of significant harm under s 36(2)(aa) (at [46]–[47]):

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

(Emphasis added.)

50    The appellant’s submission must be rejected.

51    First, he wrongly characterised the Authority’s finding concerning his claim that he had been detained on account of his tattoos. The appellant’s claim was that he had been detained for three days, which the Authority characterised at [20] of its reasons as “a brief period”. The Authority accepted that the appellant “may have been” detained and fined as a result of his tattoos.

52    Second, on any fair reading of the Authority’s reasons, its remarks at [20] (extracted above at [17]) were directed to the question of the risk of future serious harm, including arbitrary detention, on account of the appellant’s tattoos. The Authority accepted that a person may come to the attention of the Iranian authorities for having tattoos. It referred to the relevant country information report published by the Department of Foreign Affairs and Trade (DFAT) and found that “it is possible that a person with a visible tattoo could come to the attention of security forces and result in low-level harassment” (emphasis added). The Authority noted that the penalties that could be imposed for having tattoos would be similar to those imposed for “improper” dress or hair styles. While accepting that the appellant may have been detained and fined previously, the Authority stated that DFAT assessed it as “unlikely that authorities would maintain an interest in someone who had previously come to their attention for having a tattoo, unless the tattoo gave evidence of another crime” (emphasis added), and that the nature of the appellant’s tattoos did not indicate that he would be of continuing interest to the Iranian authorities or that he would be perceived as a threat.

53    The modal verbs “could” and “would” were clearly used by the Authority to assess the prospect of future harm. The fact that the Authority was not satisfied that the appellant faces a real chance of serious harm on account of his tattoos does not signify that it failed to consider his past detention in calculating that chance. It is inconceivable that the Authority failed to have regard to the appellant’s past detention in this context when it referred to the matter in the very same paragraph: see Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]–[45] (Nicholas, Yates and Griffiths JJ); Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [79] (Perram, Murphy and Lee JJ). While the Authority did not expressly refer to the risk of future detention, it did so implicitly. Indeed it was the very reason the Authority was engaging with this question to begin with.

54    In any event, past events “are not a certain guide to the future” and the extent to which they guide the probability of their recurrence depends on many factors, including their previous regularity and “the likelihood that the introduction of new or other events may distort the cycle of regularity”: Guo at 574–575. The Authority’s reasons grappled with the likelihood of the appellant coming to the attention of Iranian authorities in the future by reference to country information. The country information was an objective and reliable source of information about the circumstances in Iran. The Authority was entitled to rely on it. It clearly had a bearing on the chance of future detention. Contrary to the appellant’s submissions, however, the country information was not the only basis for the Authority’s findings. It also had regard to the nature of the appellant’s tattoos, whether the appellant had an “activist profile”, and whether he would be perceived by the authorities as a threat.

55    For these reasons, ground 1(b) should be dismissed.

Did the Authority fail to consider the appellant’s claim that his detention for having tattoos was orchestrated by his former father-in-law (ground 2)?

56    The appellant submitted that the Authority failed to consider the link between his detention for having tattoos and the influence of his former father-in-law, although his so-called tattoo claim was squarely linked to it. It was uncontentious that the Authority was required to consider all the appellant’s claims and their essential components or integers if they were either the subject of a substantial, clearly articulated argument relying on established facts, or clearly emerged from the materials. It was also uncontentious that a failure to do so would amount to jurisdictional error. See, for example, Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [79] (Kenny, Tracey and Griffiths JJ); AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ).

57    The appellant submitted that during the interview with the delegate he had clearly articulated that his detention for having tattoos was connected with his politically powerful former father-in-law. He also submitted that such a claim clearly emerged from statements he made in that interview.

58    In the statement he made in support of his SHEV application the appellant claimed that, after he attempted to divorce his ex-wife, his former father-in-law threatened to take action against him. He claimed that less than a month later he was charged with religious conversion and preaching Christianity. He asserted that this was “obviously” done at the behest of his former father-in-law. He claimed that, after his trial on those charges, he “lost everything” and that thereafter he “could never live like an ordinary citizen”. He listed some of the “bad things that happened to [him] subsequently”, including that he was “apprehended for having tattoos on [his] arm and was detained in Eastern Detention Centre of Tehran for three days”. This was the only reference to his tattoos (the so-called tattoo claim) in the statement.

59    In his interview with the delegate, the appellant repeated his claim that he had been taken into detention for three days on account of his tattoos. He then had the following exchange with the delegate (described in the transcript as “interviewer”) through an interpreter (as recorded without alteration), the words attributed to the interpreter being an English translation from the Persian (Farsi):

Interviewer:     But how do you know that tattoo … was a connection with this whole bigger issue that you are having with the court.

Interpreter:     In Iran is not like here. They breathe taken so…over there they stop you and they put your plate number on the system to find out who you are. It came to my mind that they found out who I am that’s why they gave me this hard time.

(Emphasis added.)

60    Later in the interview, the appellant told the delegate that, without more, the fact of having tattoos would not attract adverse attention from the authorities but it might if it were connected to “something else”. The statements attributed to the appellant below were evidently uttered in English:

Interviewer:    Ok, I need to also think about whether you may have any problems because of that tattoo if you go back.

Interpreter:     Ok, I realise that it’s not a main part of your claim, ok, I know that.

…

Interpreter:    I have been here for 4 years but I knew in Iran the tattoo by itself could not cause you trouble but if they connect the tattoo to other.

[Appellant]:    Something else, tattoo and something else maybe you know.

Interviewer:     Ok.

[Appellant]:    But just tattoo I don’t think so you know.

Interpreter:    They can do something but.

(Emphasis added.)

61    On all the material before the Authority, the appellant’s claim appears to have been that, following his charges for religious conversion and preaching Christianity (which he suspected of being orchestrated by his former father-in-law), his life took a turn for the worse. One of the subsequent adverse life events was his detention for having tattoos. The appellant did not accuse his former father-in-law of responsibility for his apprehension or detention. At best, the material before the Authority suggested the possibility of an indirect connection. Whether such a connection could be said to be the result of the “influence” of his former father-in-law is unclear. The better view of what emerges from the material is that this was the appellant’s hypothesis or assumption. But neither in the court below nor in his written submissions did the Minister dispute the appellant’s contention that he had claimed that his detention for having tattoos was due to the power and influence of his former father-in-law and, for that reason, the Authority was obliged to consider it. The issue in the court below and on the appeal was whether the Authority failed to address that claim. Counsel for the Minister took the point in oral argument and said he would file a notice of contention if necessary but ultimately did not seek to do so.

62    In its summary of the appellant’s claims at [5] of its reasons, the Authority stated:

Shortly after this the applicant received a court summons charging him with religious conversion and preaching Christianity. He thinks his ex-father-in-law was behind the charges. When he appeared in court he was charged with beating his wife and forcing her to attend underground Christianity classes in order to convert from Islam to Christianity. He was summoned to several court trials with false charges over a six month period. He was dismissed from his employment without a valid reason, banned from leaving the country, sentenced to one year in jail and a fine of 200,000,000 Riyals and his car was confiscated. He was investigated several times in different areas whenever he travelled because he had been blacklisted and could not apply for government jobs. He was detained for having tattoos on his arm.

(Emphasis added.)

63    The Authority did not accept as credible the appellant’s claims regarding the “court action” and the outcome of the court case. As a result, it did not accept as credible the appellant’s other claims that he had lost his citizenship rights, had his car confiscated, was investigated several times in different areas wherever he travelled, had been blacklisted, and could not apply for government jobs (at [15]). As I have already said, the Authority went on to consider the tattoo claim at [20].

64    The appellant contended that the Authority failed to consider that his detention was not solely due to his tattoos but to the combination of his tattoos and the role of his former father-in-law. He argued that the mere recitation of the tattoo claim at [5] was not enough to demonstrate genuine engagement with that claim.

65    The primary judge rejected this argument at [62] and [69]:

[T]he Court does not accept that the Authority failed to take into account the applicant’s assertion of his father-in-law’s role in relation to the detention for having tattoos. The context identified by the Authority in the six dot points at paragraph 5 of the decision clearly reflects the Authority’s awareness of the applicant’s claims advanced in respect of the alleged influence of his father-in-law. The Authority, however, made adverse credibility findings in that regard.

…

The Authority rejected the applicant’s claims in relation to threats from the ex-father in-law, and accordingly, there was no failure to properly consider the applicant’s claim in relation to his detention on account of his tattoos. The adverse findings made under both the Refugee Convention and in relation to complementary protection were dispositive of the whole of the applicant’s claims, including his claim to fear harm in the future by reason of his tattoos.

66    For similar reasons the Minister submitted that the Authority understood the appellant’s claims as they were advanced and made dispositive findings.

67    I accept the Minister’s submission.

68    The Authority’s summary of the appellant’s claim at [5] demonstrates that it understood that the tattoo claim arose in the context of the alleged court action that the appellant suspected was orchestrated by his former father-in-law. Having found that the appellant’s claims concerning his court appearances and the outcome of the court case were not credible (at [10]–[16]), the Authority also rejected the other consequential claims, such as the claimed loss of his citizenship rights and the confiscation of his car. When considering the tattoo claim at [20], the Authority was not obliged to refer again to the appellant’s allegations, or more accurately suspicions, concerning the role of his former father-in-law since it had already said (at [10] and [15]) that it did not find them to be credible.

69    The appellant argued that, as the Authority did not expressly reject his claim that his former in-laws harboured animosity toward him, its finding at [27] could not have disposed of the tattoo claim given that this claim was underpinned by the question of “persecutory animosity”, which both the delegate and Authority misunderstood.

70    But the express rejection by the Authority of the appellant’s claim to have been threatened by members of his ex-wife’s family, which was the manifestation of the alleged animosity, disposed of the claim that he was responsible for any and all of the adverse events that the appellant attributed to those threats: cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91] (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed at [1]). That included the claim that he was responsible for the appellant’s detention (and fined) for having tattoos.

71    For these reasons ground 2 should also be dismissed.

Conclusion

72    The appeal should be dismissed with costs.

Associate:

Dated:    26 April 2022