Federal Court of Australia

BGV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 22

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia, as it then was (now the Federal Circuit and Family Court of Australia), dismissing an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority: see BGV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3014. The Authority had affirmed a decision made by a delegate of the first respondent (Minister), to refuse to grant the appellant a Safe Haven Enterprise Visa.

background

2    The appellant is a stateless person of Faili Kurd ethnicity. The appellant arrived in Australia on 31 October 2012 as an irregular maritime arrival. The Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) allowing the appellant to make a valid application for a specified visa.

3    On 17 March 2016 the appellant applied for the Visa.

4    On 11 September 2018 a delegate of the Minister refused to grant the Visa.

5    On 25 February 2019 the Authority affirmed the delegate’s decision.

6    On 19 December 2019 the appellant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court. That application was dismissed on 2 December 2020.

the authority’s decision

7    The Authority set out the appellant’s claims including that:

(1)    the appellant’s parents were born in Iraq. They were deported to Iran by the Iraqi government in 1980;

(2)    the appellant and his parents were registered with the Iranian government until October 2007. During this time they were issued with amayesh cards;

(3)    the appellant’s sister, who the Authority referred to as “A”, died when she was eight years old after being hit by a police motorbike. Following A’s death the appellant’s family lodged a complaint with the Iranian authorities. However, the redress the family sought did not transpire;

(4)    in 2006 and 2007 the appellant’s and his parents’ registrations with the Iranian government was cancelled in response to his family seeking redress for his sister’s death. The appellant’s siblings’ registrations were not cancelled. According to the appellant, this was because his siblings were all married at the time, were over 18 years of age and were independent;

(5)    as a stateless Faili Kurd living in Iran he and his family suffered persecution at the hands of the Iranians and the Iranian regime. This included that he was treated unfairly at school, unable to continue with his studies, was paid less than other Iranians, when Faili Kurds gathered in groups the police were aggressive, would arrest them and on release the appellant would have to promise not to gather again;

(6)    the appellant was perceived as an Arab, called “Araba” and Iranians would remove his father’s traditional headscarf in front of him as they were not permitted to wear clothing that was not Islamic; and

(7)    the Iranian authorities have told the appellant’s cousin’s mother that they know that he and his cousin are in Australia as they have arrested the people smuggler who confessed to assisting them.

8    The Authority made a number of findings including that:

(1)    the appellant’s parents were born in Iraq and were deported to Iran in 1980 at which point their rights to Iraqi citizenship were withdrawn;

(2)    the appellant and his parents were registered with the Iranian government until October 2007;

(3)    the appellant’s sister, A, died after being hit by a police motorbike. The appellant’s family lodged a complaint with the Iranian authorities in relation to A’s death but their claim did not succeed;

(4)    it did not accept that as a consequence of the appellant’s family seeking redress about A’s death with the Iranian authorities, his and his parents’ registrations were cancelled. Rather, it was satisfied that the appellant and his parents remained registered with the Iranian authorities after A’s death;

(5)    at the time of his departure from Iran, the appellant was a registered Faili Kurd refugee with the Iranian government who departed Iran using a fraudulent Iraqi passport;

(6)    it did not accept that the appellant had to escape each time his employer’s premises were raided because he was an undocumented Faili Kurd or the appellant’s claims concerning the arrest of Faili Kurds when meeting in groups;

(7)    it accepted the appellant’s remaining claims about his and his family’s past experiences of discrimination and harassment which occurred prior to the appellant’s departure from Iran including the appellant’s claim that he was perceived as an Arab and called Araba, despite being a Faili Kurd, and that Iranians removed his father’s headscarf because it was “unislamic”;

(8)    it was satisfied that the appellant was not of interest to the Iranian authorities for any reason at the time of his departure from Iran in 2012;

(9)    it did not accept that the people smuggler who had assisted the appellant and his cousin to depart and come to Australia had been arrested and that this information had been conveyed to his cousin’s parents by the Iranian authorities when they went to renew their white cards; and

(10)    it did not accept that the appellant was suffering from any physical or mental health issues, that those issues had impacted his ability to present his claims or that he would be harmed on that basis should he return to Iran.

9    At [34]-[35] of its reasons the Authority stated:

34.    The applicant claimed that on return to Iran he fears he will be treated unfairly and harmed by the Iranian authorities because of his status as an undocumented Faili Kurd, the perception he is an Arab, and other matters which I have not found to be credible.

35.    I have rejected the applicant’s claims that his and his parent’s registration was cancelled and found that at the time of his departure from Iran he was a registered Faili Kurd refugee with the Iranian government. DFAT has reported that some Faili Kurds are unable to register as refugees in circumstances where their amayesh cards have expired or where they have exited Iran and returned. It further stated that any individual holding an expired card is considered by Iranian authorities to be an irregular migrant. I am satisfied that given the passage of time that being at least six years, the applicant’s registration with the Iranian government would have now expired. I accept that should the applicant return to Iran the Iranian authorities will consider him to be an irregular migrant, or an unregistered Faili Kurd.

10    The Authority considered country information and the appellant’s evidence including that when he was living in Iran he was able to find work without a work permit, that his brother continued to work and his siblings and parents continue to live in Iran. Having done so, the Authority did not accept that the appellant would face a real chance of serious harm as an unregistered or undocumented Faili Kurd should he return to Iran. In addition, the Authority did not accept that the appellant would face a real chance of serious harm because he may be perceived as an Arab should he return to Iran.

11    The Authority accepted that as a registered Faili Kurd refugee who left Iran, the appellant will not be permitted to re-enter. However, in light of the information before it regarding involuntary returnees, it considered that if the appellant did return to Iran it would be on a voluntary basis, on a temporary travel document. At [58] the Authority made the following findings:

In light of the information before me and taking into account the applicant’s individual circumstances, I am not satisfied that the applicant faces a real chance of harm because he might be identified at the airport as a person travelling on temporary travel document, prolonged residence in Australia, or because he sought asylum, or sought asylum unsuccessfully should he return to Iran.

12    The Authority concluded that appellant did not meet the requirements of s 36(2)(a) of the Migration Act.

13    The Authority then considered whether the appellant met the complementary protection criteria in s 36(2)(aa) of the Migration Act but found that he did not. In that context the Authority also found that the appellant would not face significant harm on account of being a Faili Kurd or because he would be perceived to be an Arab.

the federal circuit court’s decision

14    The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. He relied on an amended application in which he sought to impugn the Authority’s finding at [58] of its reasons (see [11] above) and raised the following grounds:

1.    The Second Respondent fell into jurisdictional error by making findings of material fact where there was no evidence to support those findings.

Particulars

a.    The Second Respondent’s finding that if the Applicant would return to Iran it would be on a voluntary basis on a temporary travel document at [53) of the Second Respondent’s reasons;

b.    The Second Respondent’s finding that the Memorandum of Understanding on Consular Matters between Iran and Australia would apply to a stateless Faili Kurd at [52]-[53] of the Second Respondent’s reasons;

c.    The Second Respondent's imputed finding that the situation of Iranian nationals seeking asylum applied equally to unregistered stateless Faili Kurds at [54]-[55] of the Second Respondent’s reasons;

2.    The Second Respondent fell into jurisdictional error by failing to give proper, genuine and realistic consideration of the Applicant’s claims.

Particulars

a.    The Second Respondent failed to consider the circumstances that would attend the involuntary return of an unregistered stateless Faili Kurd to Iran at [54]­[55] of the Second Respondent’s reasons;

b.    The Second Respondent failed to consider whether the fact that the Applicant’s family background as Faili refugees expelled from Iraq constitutes other credible evidence that the Iranian authorities could be aware that the Iraqi passport the Applicant used to depart Iran was fraudulent at [56] of the Second Respondent’s reasons.

3.    The Second Respondent fell into jurisdictional error by failing to consider a mandatory relevant consideration in relation to the Applicant’s claims.

Particulars

a.    The Second Respondent failed to consider whether the Applicant could be returned to Iran on an involuntary basis;

b.    The Second Respondent failed to consider whether the Applicant faces a real chance of harm as an involuntary, undocumented stateless Faili Kurd refugee returnee.

(Underlining omitted.)

15    The primary judge noted at [7] of BGV19 that all three alternative grounds resolved into a central question, namely “did the Authority fall into jurisdictional error by assuming that the rights and privileges of Iranian nationals returned to Iran on an irregular travel document apply equally to a person who is not an Iranian national”, in this case an unregistered stateless Faili Kurd.

16    The primary judge addressed the three grounds and the central question his Honour had identified at [68]-[72] of BGV19, noting that the focus was on the Authority’s findings at [51]-[59] of its reasons.

17    The primary judge agreed generally with the Minister’s submissions that the appellant’s contentions concerning the use made by the Authority of the memorandum of understanding between Australia and Iran on Consular Matters (MOU) (at [52] of the Authority’s reasons) were misplaced. His Honour observed that the Authority correctly found that the MOU had no application to the appellant who had arrived in Australia about six years before it was made as it had no retrospective application. The primary judge noted that the MOU probably does not apply to non-citizens of Iran. His Honour found that the Authority’s failure to note this was not an error going to jurisdiction and that the Authority only needed one reason to reject the application of the MOU to the appellant: BGV19 at [68].

18    The primary judge also found that it was correct for the Authority to proceed on the assumption that because the appellant could not be returned to Iran involuntarily, if he was to return there, it would be on a voluntary basis: BGV19 at [69].

19    These findings seem to address grounds 1 and 2 of the amended application relied on by the appellant before the Federal Circuit Court.

20    At [70]-[72] the primary judge made the following further findings:

70.    The difficulty in this case, as I pointed out to the representatives in oral argument, is that, in order to hypothetically place the applicant in Iran, the Authority needed to make two assumptions. The first, made by the Authority, was that the applicant’s return would be voluntary. Secondly, the Authority’s finding that the applicant would be refused entry into Iran (even on voluntary return) gave rise to the need of a second assumption that the applicant would enter Iran irregularly (or in a similar way to which he left it). There was no consideration by the Authority of that hypothetical.

71.    That was, in my view, an error but I find that it does not go to jurisdiction. There was nothing before the Authority that could lead to any conclusion that the outcome before the Tribunal, had it made the second assumption, might have been different. First, it is not known whether illegal entry into Iran would be treated as a criminal matter and, if so, what the penalty might be. Neither is it known whether the applicable Iranian law is a law of general application applied on a non-discriminatory basis.

72.    Secondly, it is not known whether the applicant would simply be deported from Iran and, if so, where? The applicant himself addressed none of this in his evidence and submissions to the Authority and there is no simple, obvious and potentially determinative enquiry that could have been made by the Authority to resolve these imponderable questions.

21    The primary judge concluded that the appellant had failed to establish that the Authority’s decision was affected by jurisdictional error and thus dismissed the amended application.

the appeal

22    The appellant relies on a notice of appeal dated 24 December 2020 in which he raises the following two grounds of appeal:

1.    The primary judge erred in failing to find that the Second Respondent fell into jurisdictional error when it failed to give proper, genuine and realistic consideration to whether the Applicant may face harm on return because he will return to Iran as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent Iraqi passport, in that:

a.    The Authority failed to consider the consequences that might befall the Appellant if the Appellant would enter Iran irregularly as described at J [70].

b.    The Authority failed to consider whether illegal entry into Iran would be treated as a criminal matter and, if so, what the penalty might be or whether such a law might be a law of general application applied on a non-discriminatory basis in the manner posed at J [71].

2.    The primary judge erred in failing to find that the Second Respondent fell into jurisdictional error when it failed to consider a mandatory relevant consideration, being whether the Applicant may face a real chance of harm as an involuntary, undocumented stateless Faili Kurd refugee returnee, in that:

a.    The Authority failed to consider the consequences that might befall the Appellant if the Appellant would enter Iran irregularly as described at J [70].

b.    The Authority failed to consider whether illegal entry into Iran would be treated as a criminal matter and, if so, what the penalty might be or whether such a law might be a law of general application applied on a non-discriminatory basis in the manner posed at J [71].

23    The grounds of appeal seem to repeat grounds 2 and 3 relied on before the Federal Circuit Court, although differently particularised. In effect, the appellant alleges error on the part of the primary judge in failing to find in his favour in relation to grounds 2 and 3 of his amended application for review.

24    By ground 1 of his notice of appeal the appellant contends that the primary judge erred by failing to find that the Authority fell into jurisdictional error when it failed to give proper, genuine and realistic consideration to whether he may face harm on return because he will return to Iran as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent Iraqi passport.

25    By ground 2 of his notice of appeal the appellant contends that the primary judge erred in failing to find that the Authority fell into jurisdictional error when it failed to consider a mandatory relevant consideration, namely whether the appellant may face a real chance of harm as an involuntary, undocumented stateless Faili Kurd refugee returnee.

26    The appellant addressed the two grounds of appeal together. He submitted that his grounds of “review resolve into one overarching issue” being:

Did the [Authority] err by failing to consider the consequences that may befall the Appellant were he to return to Iran irregularly in circumstances where the Appellant departed from Iran using a fraudulent passport and has no right of return as a stateless unregistered Faili Kurd.

27    The appellant submitted that, had the Authority considered that question, there was a realistic possibility that it could have found that as a necessary and foreseeable consequence of the appellant being removed from Australia to Iran, there is a real risk that he will suffer significant harm in the form of cruel or inhuman treatment or degrading treatment or punishment within the meaning of s 36(2)(aa) and s 36(2A) of the Migration Act.

28    The appellant submitted that the primary judge correctly identified the error in the Authority’s reasons at [70] of BGV19. However, he also observed that the primary judge found that the error did not go to jurisdiction because there was nothing before the Authority that could lead to any conclusion that the outcome before it, had it made the second assumption identified by the primary judge, might have been different. The appellant contended that the primary judge erred by failing to find that the error, as identified by him, was material and therefore jurisdictional.

29    The appellant submitted that, contrary to the comment at [71] of BGV19 that “it is not known whether illegal entry into Iran will be treated as a criminal matter and, if so, what the penalty might be”, it is known that illegal entry into Iran would be unlawful and it should be reasonably inferred that the coercive machinery of the state would be applied to its enforcement.

30    The appellant submitted that, contrary to [71] of BGV19, the Authority had a basis to infer that the law proscribing illegal entry into Iran may apply on a non-discriminatory basis. The appellant contended that it is accepted that unregistered Faili Kurds do not enjoy the equal protection of the laws of Iran enjoyed by Iranian nationals and that as an ethnic minority the appellant had suffered discrimination and harassment. The appellant submitted that there was a realistic possibility that the Authority could have found that the coercive machinery of the state could fall disproportionately heavily on him in the event of a contravention of the law by him as an unregistered stateless Faili Kurd seeking to enter Iran illegally and there was a realistic possibility that the Authority could have found that this outcome would present a real risk of significant harm within the meaning of s 36(2)(aa) of the Migration Act.

31    The appellant submitted that in those circumstances the Authority failed to consider the possible consequences of the appellant’s illegal return to Iran and failed to give genuine and realistic consideration to those matters in light of his status as an undocumented stateless Faili Kurd who departed Iran on a fraudulent passport.

Consideration

32    While there is a lack of clarity, essentially by his grounds of appeal the appellant seeks to challenge the primary judge’s finding that the error his Honour identified at [71] of BGV19 was not material. So much was confirmed in oral submissions by counsel appearing for the appellant. In doing so the appellant contends that the Authority was obliged to consider whether he would return to Iran irregularly and, if so, the consequences of doing so for him as a stateless Faili Kurd refugee. The appellant contends that the Authority failed to do that, which is the error identified by the primary judge at [71] of BGV19.

33    In addressing the grounds of appeal, it is necessary to start with the Authority’s reasons.

34    First, any suggestion on the part of the appellant that the Authority failed to consider, in a general sense, whether, if the appellant was removed from Australia to Iran, there was a real chance that he will face serious harm as an unregistered Faili Kurd cannot be sustained.

35    At [37]-[39] and [44]-[46] of its reasons the Authority considered country information in relation to Faili Kurds in Iran (and Iraq). At [40]-[42] and [47] of its reasons the Authority considered the appellant’s actual circumstances. At [43] and [48] the Tribunal drew its conclusions about the appellant’s evidence of his life in Iran, in light of the country information. It found:

43.    I have had regard to the information above regarding the treatment of unregistered or undocumented Faili Kurds, but given the particular circumstances of the applicant, I am not satisfied that there is a real chance of him experiencing restrictions, limitations or hardships or economic harm or denied the capacity to earn a livelihood, or access basic services, whether separately or in any cumulative sense at a level that would threaten his capacity to subsist or otherwise amount to serious harm.

…

48.    I have had regard to the information above regarding the treatment of unregistered or undocumented Faili Kurds, but given the particular circumstances of the applicant, I am not satisfied that he will be imputed with any type of profile arising from his or his family’s past circumstances. I do not accept that the applicant as an unregistered or undocumented Faili Kurd he will be perceived to have any actual or imputed anti-Iranian government political opinion or considered a Faili Kurd or Kurdish separatist, political activist or dissident, or someone of interest on this basis should he return to Iran.

36    At [49] the Authority concluded that, in light of the matters to which it referred (I infer at [37]-[48] of its reasons) it did not accept that the appellant faces a real chance of serious harm as an unregistered or undocumented Faili Kurd should he return to Iran. In that way the Authority comprehensively considered that question at a general level in relation to the appellant being a Faili Kurd who may return to Iran.

37    Secondly, the focus of the argument before me, and it seems resolution of the grounds relied on before the Federal Circuit Court by the primary judge, was at [51]-[59] of the Authority’s reasons where the Authority considered the questions of whether the appellant would face a real chance of serious harm as a returned asylum seeker and whether he could return to Iran at all. The Authority said (as written):

51.    The applicant claimed he would face harm on return because he departed Iran illegally and other matters which I have not found to be credible. The delegate also considered whether the applicant may face harm on return because he will return as a failed asylum seeker from a western country. The applicant advanced no such claim however I accept he would return after his prolonged residence in Australia and his application for asylum has failed.

52.    I have found that the applicant departed Iran using a fraudulent Iraqi passport, and I accept he no longer has this passport. In 2016, DFAT reported that the Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means. There is no more recent information before me to indicate that this position has changed. Furthermore, according to DFAT, Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

53.    I accept that as a registered Faili Kurd refugee who left Iran, the applicant will not be allowed to re-enter, however in any event, in light of the information regarding involuntary returnees, I consider that if the applicant was to return to Iran it would be on a voluntary basis, on a temporary travel document and his prolonged residence in Australia and after his asylum application has been unsuccessful.

54.    The information before me indicates that failed asylum seekers are very unlikely to be targeted by the Iranian authorities for reason of having applied for asylum overseas. Hossein Abdy, the Head of the Passport and Visa Department at Iran’s Ministry of Foreign Affairs, advised the Danish Refugee Council, Landinfo and the Danish Immigration Service during a November 2012 fact-finding mission that it was not a criminal offence in Iran for any Iranian to ask for asylum in another country. An unnamed Western diplomat and expert on Iran advised the Danish Refugee Council and Danish Immigration Service in 2013 that as long as a returnee has not been a member of an opposition political party or involved in political activities in other way, she or he would not face problems upon return to Iran.

55.    DFAT reported in 2018 that according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran, with the authorities accepting that many will seek to live and work overseas for economic reasons. It was also commented that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims and it was those with an existing high profile who may face a higher risk of coming to official attention on return to Iran, particularly political activists. DFAT also noted that it not aware of any legislative or social barriers for returnees finding work or accommodation in Iran or any specific barriers to prevent return to a returnee’s home region.

56.    I have rejected the applicant’s claims that the Iranian authorities have arrested the people smuggler who had assisted him and his cousin and that they are aware they are in Australia. There is no other credible evidence before me to suggest that the Iranian authorities are aware that the Iraqi passport he used was fraudulent and he subsequently departed Iran illegally and I consider this to be pure speculation on the applicant’s part and I do not accept that this to be the case. I am not satisfied that there is a real chance of him suffering any harm on this basis.

57.    I have found that the applicant was not of interest to the Iranian authorities when he departed Iran. There is also no evidence before me to indicate that the applicant has been involved in any activities since arriving in Australia that would have brought him to the adverse attention of the Iranian authorities. There is also no independent information before me to suggest that absent any other concerns, individuals who return to Iran after spending a prolonged period of time in a western country such as Australia and sought asylum unsuccessfully are imputed with an adverse opinion or profile and harmed. I am not satisfied that he will face a real risk of attracting the specific attention of the authorities and questioned should he return to Iran.

58.    In light of the information before me and taking into account the applicant’s individual circumstances, I am not satisfied that the applicant faces a real chance of harm because he might be identified at the airport as a person travelling on temporary travel document, prolonged residence in Australia, or because he sought asylum, or sought asylum unsuccessfully should he return to Iran.

59.    I am not satisfied that the applicant has a well-founded fear of persecution.

38    By ground 1 of the appeal the appellant contends that the primary judge erred in failing to find that the Authority fell into jurisdictional error, in failing to give proper, genuine and realistic consideration to whether the appellant may face harm on return to Iran because he will return as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent passport, in that it failed to consider the consequences of entering Iran irregularly and whether illegal entry into Iran would be treated as a criminal matter. Similarly, by ground 2 of the appeal the appellant contends that the primary judge erred by failing to find that the Authority fell into jurisdictional error when it failed to consider a mandatory relevant consideration, being whether the appellant may face a real chance of harm as an involuntary undocumented stateless Faili Kurd refugee returnee, in that it failed to consider the consequences of entering Iran irregularly and whether illegal entry into Iran would be treated as a criminal matter.

39    In determining the grounds of appeal, an anterior question is whether the Authority was in fact required to consider whether the appellant may face harm on return to Iran because he will return as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent Iraqi passport, the way in which he would return and the consequences of that. That in turn depends on whether the appellant made such a claim.

40    The Authority is required to consider claims that are the subject of clearly articulated substantial argument, relying on established facts, or that clearly emerge from the material before it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [58].

41    In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 a Full Court of this Court (Collier, McKerracher and Banks-Smith JJ) said at [18]:

…

As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

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

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

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

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

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

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

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

42    In ELA18 v Minister for Home Affairs [2019] FCA 1482 at [28] Abraham J said:

The respondent placed particular reliance on SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 (SZULW) at [80] where Thawley J endorsed as correct the comments of the Court below which were in the following terms:

As the applicant did not claim that “Sri Lankan illegal departers returning from Australia” were a particular social group, in the circumstances the Tribunal’s failure to consider whether they were did not involve error unless such a claim arose clearly from the materials before it: NABE v Minister for Immigration & Multicultural& Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1. Whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the Tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].

43    At [32] of ELA18, in finding that no claim was made by the appellant in that case about his mental health, her Honour concluded that “[m]oreover, the appellant was, and remains, represented throughout the process. The Authority was entitled to assume that the claims expressly articulated by the appellant and his representative as to his feared persecution if he returned to Sri Lanka are those on which he relies”.

44    The material before the Authority reveals that:

(1)    in the appellant’s entry interview, in response to a question “Why did you leave your country of nationality (country of residence)?”, the appellant responded:

I am stateless and they have no respect and they treated us like animals, no work for us, I cannot even get a Sim card in my name, even for the little kids at school are not allowed to play with the balls at school we are very discriminated people and they hated us, even though I was born there they would not grant me citizenship and they always say Iraq and in Iraq they say we are Iranian, we really are lost and neither Iraq or Iran accept us.

(2)    the appellant’s application for a temporary protection visa had annexed to it a statutory declaration which set out the appellant’s claims. A review of the statutory declaration reveals that no claim was made by the appellant that he feared harm as a returning asylum seeker from a western country or about how he would return. That is, whether he would return irregularly and, if so, the consequences of doing so;

(3)    the Minister’s delegate did consider the question of failed asylum seekers returning to Iran noting, among other things, that based on country information a person would not be targeted by the authorities on return to Iran for the sole reason of being a failed asylum seeker, as long as he or she was not involved in political activities contrary to the ruling party. The delegate did not accept that the fact that the appellant claimed asylum or spent time in Australia would, of itself, attract adverse interest; and

(4)    in the appellant’s submission to the Authority there was no claim made or reference to a fear of harm on return to Iran as a failed asylum seeker from the west or because the appellant would need to return irregularly and what the consequence of doing so might be for the appellant.

45    There is nothing in the material before me to support a contention that the appellant made a claim to fear harm as a failed asylum seeker returning to Iran from the west and/or about the way in which he would return to Iran and, in particular, that he would return irregularly or illegally. Such a claim was not made expressly, did not arise from the established facts or emerge from the material relied on by the appellant. Further, the appellant was represented at the time of his application for the visa and before the Authority such that the Authority was entitled to assume that the claims the appellant and his representative expressly articulated in relation to his fear of harm should he return to Iran were those on which he relied: ELA18 at [32].

46    As submitted by the Minister, at [53] of its reasons (see [37] above), the Authority found that the appellant could not actually return to Iran. Having done so the Authority was required to consider the situation if he could return: see Taiem v Minister for Immigration and Multicultural Affairs [2001] FCA 611; 186 ALR 361 at [14]. That is what the Authority did, making a number of findings about the situation he would face and any constraints “should he return to Iran”.

47    No claim of the nature articulated at [45] above, and on which the grounds of appeal seem to be premised, was made. The appellant did not make a claim to fear harm as a failed asylum seeker returning to Iran from the west and/or about the way in which he would return to Iran and, in particular, that he would return irregularly or illegally. That being so the Authority was not required to consider the consequences for the appellant if he was to return to Iran irregularly or illegally.

48    Further, and in any event, the requirement for the second assumption identified by the primary judge at [70] of BGV19, that the appellant would enter Iran irregularly (or in a similar way to which he left) was, with respect, speculation on the part of the primary judge.

49    That being so, I accept the Minister’s submission that the primary judge was not correct to find that the Authority had fallen into error by not considering the second assumption. Be that as it may, having found the necessity to consider the assumption, the primary judge found that Authority’s error did not go to jurisdiction.

50    The appellant challenges the primary judge’s reasons for reaching this conclusion and contended that the failure to consider the second assumption was material.

51    In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2] Kiefel CJ, Gageler, Keane and Gleeson JJ observed that:

Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

(Footnote omitted.)

52    The appellant contends that the second assumption identified by the primary judge at [70] of BGV19 follows from the fact that for a person who has no right to voluntarily return to Iran, irregular entry must necessarily be a contravention of Iranian law and that it is known that illegal entry into Iran would be unlawful and it should be reasonably inferred that the coercive machinery of the state would be applied to its enforcement. However, these contentions are no more than that and not supported by any evidence. Noting that the appellant bears the onus, there was no evidence before the Authority on which it could be concluded that there was a realistic possibility that the decision could have been different had the identified error not been made and the second assumption considered. There was no error in the primary judge’s conclusion that the error as identified by his Honour did not go to jurisdiction.

53    As a final matter I address the contentions made in the appeal grounds.

54    By appeal ground 1, the appellant contends that the Authority failed to give proper, genuine and realistic consideration to the consequences of the appellant’s illegal return. In Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26] Kiefel CJ, Keane, Gordon and Steward JJ cautioned that:

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

    (Footnotes omitted.)

55    Given my conclusion that a claim to fear harm as a stateless Faili Kurd returning irregularly was not made, the appellant’s contention appears to be an invitation to undertake impermissible merits review or an attempt by the appellant to recast his claims on a basis that was not actually made: see S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (Gleeson CJ).

56    In appeal ground 2, the appellant contends that the Authority failed to consider a mandatory relevant consideration, whether the appellant may face a real chance of harm as an involuntary undocumented stateless Faili Kurd refugee returnee. However, the appellant does not explain how and why the Migration Act mandates that that matter must be considered.

conclusion

57    The appellant has failed to make out his grounds of appeal.

58    The appeal should be dismissed. Given that the appellant has not succeeded, he should pay the Minister’s costs as agreed or taxed.

59    I will make orders accordingly.

Associate:

Dated:    24 January 2023