Federal Court of Australia

COV18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 849

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Leave to rely on the grounds in the notice of appeal filed in these proceedings is refused.

3.    Leave to file the proposed amended notice of appeal dated 1 September 2021 is refused.

4.    The appeal is dismissed.

5.    The appellant must 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

FARRELL J:

Introduction

1    The appellant, to whom I will refer as COV18, is a female citizen of Iran.

2    On 9 September 2020, a Judge of the Federal Circuit Court of Australia (as that Court was then known) (FCCA) dismissed COV18’s application for judicial review of a decision of the Immigration Assessment Authority (or IAA) made on 10 May 2018 affirming a decision of a delegate of the responsible Minister to refuse to grant COV18 a Safe Haven Enterprise visa (SHEV). The FCCA Judge delivered ex tempore reasons for that decision. Those reasons were published on 14 October 2020: see COV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2547 (Reasons or J).

3    Raymond Turner of Turner Coulson Immigration Lawyers represented COV18 at the hearing before the FCCA Judge and the footer of the amended application indicates that he prepared the amended application for judicial review filed on 10 September 2020 which was considered by the FCCA Judge.

4    A notice of appeal was lodged in this Court on 7 October 2020, within the 28 days allowed for the filing of such a notice under r 36.03 of the Federal Court Rules 2011 (Cth). A footer on the first page of the notice of appeal indicates that “Jay Williams (on a direct access brief)” prepared it. Mr Williams acted as counsel to COV18 in relation to her appeal.

5    The notice of appeal stated that the “reasons for judgment were not available at the time of filing the notice of appeal and the appellant intends to amend the notice of appeal once the reasons for judgment are available”. The notice comprised 9 pages of which about 6.5 pages set out four particularised grounds. The orders sought were:

(a)    Leave be granted to rely on the new grounds proposed “which were not articulated before the proceedings below”;

(b)    The appeal be allowed and the orders made by the FCCA Judge and the decision of the IAA be set aside; and

(c)    The Minister pay the appellant’s costs of the appeal and the parties bear their own costs of the FCCA proceedings.

6    The course of preparation of this matter for hearing is set out at [34]-[59] below.

7    These reasons deal with COV18’s application to rely on the first and ninth to twelfth grounds of a proposed amended notice of appeal dated 1 September 2021. At the commencement of the hearing on 1 September 2021, counsel for the parties agreed that those grounds were not raised in the FCCA proceedings.

IAA’s decision

8    The IAA summarised COV18’s claims in its decision record (DR) at DR[5] as follows:

The applicant’s claims can be summarised as follows:

•    The applicant fears persecution for reasons of her atheist religious views. At the time of arrival in Australia the applicant claimed to be agnostic. She said that she read banned books and mixed with similar minded people in Iran to discuss their religious beliefs. Her curiosity about other religions resulted in her suspension from university for a semester on one occasion and for half a year on another occasion. Since her arrival in Australia she has been involved in atheist groups on Facebook and social media. She fears she will be accused of apostasy and consequently be imprisoned, harmed or killed;

•    The applicant fears persecution for reasons of her imputed and actual political opinions. She participated in the Mousavi campaign in the 2009 elections. She and some likeminded friends were arrested when they were in a coffee shop and she was detained in a detention centre. Her family paid a bribe to have her released;

•    The applicant’s father disappeared during the Iraq/Iran war when she was an infant. As an adult she started investigating his disappearance, particularly with the Martyr Foundation. She was unable to obtain any information and was told it was not a good idea to keep investigating her father’s disappearance;

•    On several occasions she was harassed by the authorities. In one incident she and her friend tried to escape from a car following them. They went to a police station but when they stopped the car, the people in the following car got out, smashed her friend’s car window, pulled her hair and threatened them. The police did nothing to stop them. About 10 days before she left Iran she noticed the front door had been vandalised with acid and graffiti painted on the walls. After this incident she decided to leave Iran;

•    The applicant believes she cannot relocate to any other part of Iran to escape the harm she fears, nor obtain protection from the relevant authorities as it is the authorities who are the perpetrators of the harm.

9    The IAA stated that it was satisfied that COV18 was born in a named place in Iran, that she lived in a named province and that she was a citizen of Iran, which would be her receiving country. It was also satisfied that she departed Iran lawfully by plane as the holder of a valid genuine passport and that a people smuggler in Indonesia took her passport from her: DR[7]-[9].

10    At DR[13]-[16], the IAA set out in more detail the claims COV18 made in her arrival interview in 2013 and at her SHEV interview in 2017. At DR[15], the IAA noted a claim in COV18’s written application for protection as follows:

… the applicant claimed that her laptop was stolen while she was on her front doorstep. The laptop included articles and e-books with forbidden contents that would be considered anti-Islamic. The applicant considered that if this had been an ordinary robbery they would also have taken her mobile phone which she was using at the time and her purse. When asked by the delegate at her interview why she kept forbidden material on her laptop if it is considered to be criminal the applicant said that she was only downloading information on her personal computer to read it. She said the robbery occurred at around the same time as her arrest in the coffee shop and the pursuit of her and her friend whilst they were driving that is, about three months prior to her departure from Iran.

11    At DR[17], the IAA found that, based on her consistent evidence, it was satisfied that COV18 was a non-practising Muslim before her departure from Iran and at that time she identified as an agnostic. It was prepared to accept that she now identified as an atheist. Due to lack of evidence provided, the IAA was not prepared to accept that COV18 had been involved in social media in the Sydney Atheist group or any other activities promoting atheism in Australia or Iran. At DR[18], it found that it was not satisfied that COV18 had an anti-Islam or other adverse religious profile before her departure from Iran. The IAA said:

I consider that if her computer had been stolen by the Basij or any other Iranian authorities or their agents and it had had anti-Islamic material on it that she would have been contacted prior to her departure which was not until three months later. I consider that this incident was more likely to be an opportunistic robbery and the applicant was not deliberately targeted by authorities for the purposes of threatening her.

12    At DR[19]-[20], the IAA considered information contained in the Department of Foreign Affairs and Trade (DFAT) Country Information Report Iran April 2016 and information issued by the Danish Immigration Service in 2014 and by the Austrian Centre for Country of Origin and Asylum Research and Documentation in 2015. The IAA noted that:

    According to Sharia law, Iranians are not permitted to renounce their Shia Muslim religion or convert to another religion and if they do they can be charged with apostasy. While apostasy is not codified in Iran’s Penal Code, the Constitution allows judges to turn to Sharia law if Iranian law is not clear on an issue;

    Convictions for apostasy are not common, however some judges have relied on Sharia law to hand down the death penalty and lengthy imprisonment for apostasy. The last time a death sentence was carried out for apostasy was 1990. The most recent case of a charge of apostasy with a death penalty sentence was 2011. Under sustained international pressure, the conviction was commuted to proselytization and the death sentence was dropped;

    DFAT considered it unlikely individuals will be prosecuted on charges of apostasy. It considered it unlikely that the government would monitor religious observance by Iranians, so that it was generally unlikely that it would be known that a person was no longer faithful to Sharia Islam. Perceived apostates were only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants; and

    Other sources indicate that many people in Iran do not regularly attend mosque with many young people identifying themselves as secular and agnostic.

13    The IAA found as follows at DR[21]-[22]:

21.    The applicant has not claimed that she promoted her agnostic beliefs in Iran or that she would promote atheism if she returned. I accept the applicant’s evidence that she met other young people in informal gatherings in places such as coffee shops to discuss religion and religious beliefs but that their meetings were not publicised and they did not actively recruit members to this group unless they already expressed interest in their ideas. I am not satisfied that if the applicant were to continue to attend such informal meetings that these would be perceived by the Iranian authorities to be a threat to national security such that there would be a real chance that the applicant will suffer serious harm as a consequence of participating in such gatherings.

22.    Based on the applicant’s evidence I am satisfied she will not publicly declare or promote her non-belief in Islam/atheism on return to Iran and I am satisfied she not will not do so due to lack of interest rather than fear of persecution. I am not satisfied that the applicant’s non-belief in Islam/atheism has, or there is a real chance that it will, come to the adverse attention of the Iranian authorities or community on return to Iran such that she will face a real chance of harm. I am not satisfied the applicant faces a real chance of serious harm on return to Iran for reasons of her non-belief in Islam and/or disagreement with the way Islam is practiced in Iran and/or stated personal atheism.

14    At DR[23]-[41], the IAA considered COV18’s fear of persecution for reasons of imputed and/or actual political opinion. At DR[23], the IAA said (emphasis added):

At her entry interview on 4 March 2013 the applicant stated the reason she left Iran was that she was scared as she had had threats made to her life as a result of making enquiries about her father who had gone missing during the Iraq/Iran war. She believed that her insistence on making enquiries had resulted in her arrest by the Sepah for 24 hours and various incidents in which she was threatened with harm. She had also been arrested by the police once about four years ago for not wearing her hijab correctly. When asked whether she or any members of her family have been associated or involved with any political group or organisation she stated that her brother was involved during the elections in 2009 and that her maternal uncle had some kind of involvement in activities or protests against the government. She was not sure what kind of involvement but they came and took his computer and threatened him.

15    At DR[30], the IAA found that, based on COV18’s consistent evidence relating to her search for information about her father’s disappearance during the Iraq/Iran war, and despite inconsistency in the dates she provided relating to the search, it accepted that her search had been actively discouraged by the Martyr’s Foundation in her province and in Tehran for unknown reasons. It also accepted that she was unsuccessful in finding any more information than the date of his disappearance.

16    At DR[31], the IAA was prepared to accept that COV18 was involved in the 2009 election campaign, working for Mousavi’s election and that she joined other young people in political and religious discussions in informal settings such as coffee shops during and after the campaign.

17    At DR[32], the IAA noted that, although COV18’s evidence was confusing, it appeared that the incidents relating to:

    being followed by a car and assaulted outside a police station while the police refused to intervene;

    her arrest at a coffee shop with a number of her friends and subsequent detention; and

    the theft of her laptop,

all occurred roughly three to five months before her departure from Iran. The only incident proximate to her departure (ie, one or two weeks before she left) was her family home being vandalised with graffiti and acid thrown on the front door.

18    At DR[33], the IAA set out the detail of COV18’s written statement of claims in relation to the incident involving being followed by the car. It noted that, at the entry interview, COV18 claimed that the men who got out of the following car pulled her hair and told her that they wanted to show her what a threat was so she should stop looking for information about her father. At DR[34], the IAA said:

I accept the incident occurred as the applicant has been consistent in her evidence about what happened in this incident. However, I am not satisfied that the applicant has provided persuasive reasons for the attack. As the applicant was unable to obtain any information about her father, it is possible that she was threatened in such a manner in order to discourage any further attempts on her part to discover what had happened to her father, but given she had already ceased asking about her father after she had gone to Tehran to unsuccessfully make enquiries, it would seem unlikely that Iranian authorities would go to such extremes to further discourage her. It is also possible that members of the Basij were in the following car and saw boys and girls in a car together. The Department of Foreign Affairs and Trade report that from time to time “authorities can take a heavy-handed approach when they periodically enforce standards of the Islamic conduct in the community, including Islamic dress and public displays of affection with non-family members of the opposite sex. ….. Youth in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour… Enforcement can be unpredictable and related to the prevailing political atmosphere of the time.”

19    At DR[35], the IAA said (emphasis added):

I have some concerns about the applicant’s evidence relating to her arrest with her friends at a gathering at a coffee shop in October 2012. The applicant made no mention of this incident at her entry interview despite providing extremely detailed evidence in response to the question about why she left Iran, including about the incident above and the acid thrown on the front door of her home. When asked whether she had ever been arrested she said yes - once for 24 hours when she was detained by the Sepah after enquiring about her father and once for not wearing her hijab correctly about four years earlier. I consider that if she had been arrested only three months prior to her departure, verbally abused and threatened, detained for three or four days and only released after the payment of a bribe, that she would also have mentioned this incident at the time of her entry interview given the amount of detailed evidence she provided at the time.

20    At DR[36], the IAA also noted that COV18 had been vague about the details of any charges against her or the reason for her arrest and that, in response to the delegate’s question as to what charges had been made against her, her response was “none”.

21    At DR[37], the IAA found that it was satisfied that COV18 had never been formally charged with any offence, including any political and/or religious offence and she was not sought by authorities for any offence at the time she left Iran in 2013.

22    At DR[38], the IAA accepted that acid was thrown at the front door of her family’s home shortly before COV18’s departure from Iran. However, it found it difficult to know why the attack occurred and it found unpersuasive COV18’s assertion that the authorities were responsible either because of her pursuit of information about her father (which she had already ceased) or because of an increasingly adverse political and/or religious profile.

23    At DR[39], the IAA noted that Iran’s Constitution provides that “no-one may be molested or taken to task simply for holding a certain belief”. However, country information from various sources confirmed COV18’s assertions that Iranian authorities routinely suppress free speech and punish public criticism of the regime. Nevertheless, it noted that DFAT reports that:

… Within limits well known to Iranians, daily life is vibrant and sophisticated. The government of the day may be criticised robustly, both in public (for example, during conversations on the street and in workplaces) and online (for example, on social media). … Political Activists who are perceived to cross red lines (especially if they are seen to criticise the nature of and key institutions in the regime) are often charged and sentenced under offences such as ‘propaganda against the State’, ‘insulting Islamic values or the Prophets’, and ‘insulting the Supreme Leader’, which can carry lengthy prison terms.

24    The IAA concluded as follows at DR[40]-[41]:

40.    I am satisfied that the applicant has not engaged in any political activism other than being involved in the Mousavi campaign and participating in informal discussions with other young people about politics and religion. I am not satisfied that these activities have led to the applicant being identified as a political activist or dissident who was of adverse interest to the authorities. I am satisfied the applicant engaged in a search for information about her father and that she was discouraged from doing so by the authorities. She ceased this search some months prior to her departure. I am not satisfied that her earlier persistence in seeking information about her father led to her being identified as someone who had an adverse political profile with the authorities in Iran, such that there is a real chance that she would suffer serious harm if she returns to Iran.

41.    Having regard to the totality of the applicant’s evidence and relevant country information, I am satisfied that there is no real chance the applicant will suffer serious harm, having regard to the extensive examples of serious harm in s.5J(5) of the Act, for reasons of her imputed or actual political opinion if she returns to Iran now or in the foreseeable future.

25    Notwithstanding that COV18 did not make such a claim (see DR[6]), the IAA considered whether there was a real chance that COV18 will suffer serious harm as a member of a particular social group, being failed asylum seekers who have sought protection in a Western country at DR[42]-[43] and concluded that there was not.

26    The IAA considered COV18’s claims cumulatively at DR[44]-[46] and concluded as follows at DR[47]:

Having regard to all the applicant’s specific circumstances in the context of the country information about the current situation in Iran, I am not satisfied that there is a real chance of the applicant being seriously harmed by the Iranian authorities or by any other group or person. I am not satisfied that any of the treatment I accept she may experience will amount to serious harm having regard to the extensive examples of serious harm in s.5J(5) of the Act, when considered cumulatively.

27    At DR[48], the IAA concluded that COV18 did not meet the requirements of the definition of “refugee” in s 5H(1) of the Migration Act 1958 (Cth) and therefore did not meet the criterion in s 36(2)(a).

28    The IAA considered whether COV18 met the complementary protection criterion in s 36(2)(aa) of the Migration Act at DR[49]-[56] and concluded, at DR[57], that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that she would suffer significant harm.

The FCCA proceedings

29    The FCCA Judge granted COV18 leave to rely on grounds set out in an amended application for judicial review annexed to his submissions to the FCCA dated 26 August 2020 which was subsequently filed on and dated 10 September 2020.

Grounds of amended application for judicial review

30    The amended application for judicial review contained the following grounds:

1.    The Immigration Assessment Authority (IAA) failed to carry out its statutory duty.

Particulars

a.    Section 473CC(1) of the Migration Act 1958 requires that the IAA conduct a review of the delegate’s decision.

b.    The duty to carry out a review of the decision must be a bona fide review.

c.    The IAA failed to realise that the Applicant’s denunciation at University and her discussions in coffee shops were a public display of her perceived renunciation of Islam.

d.    The IAA accepted that these actions took place and accepted that apostasy is a crime in Iran.

e.    Following the incident in the University, her views of Islam would have been publicly known.

f.    In that context the later events can be seen as cumulative upon the earlier incident.

g.    The IAA found that the attack on the Applicant’s front door was not connected to her search for information about her father’s disappearance because that search had ended “a few months” before the attack.

h.    While it is true that the Applicant’s enquiries had ceased, the time is too short to be certain that the authorities were aware, or concluded, that she had ceased to search for information.

2.    The IAA failed to apply the correct test.

Particulars

a.    The correct test is whether there is a “real chance” of persecution. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

b.    The IAA test was whether a claimed occurrence was “likely” [19], “strong anecdotal evidence.” [42]

c.    A real chance does not have to be likely and must be based on other than anecdotal evidence.

3.    The IAA acted unreasonably in rejecting the Applicant’s fear of harm when the evidence before it clearly showed that the Applicant had a well-founded fear of persecution.

Particulars

a.    The IAA accepted the Applicant’s evidence regarding suspension from university due to her questioning of Islam and the meetings with young people at coffee shops to discuss religion.

b.    The IAA also accepted that the Applicant had been actively discouraged from questioning her father’s disappearance, attacked by men who threatened to kill her and that acid was thrown at the Applicant’s front door shortly prior to her departure.

c.    These incidents clearly indicate that the Applicant would be perceived as renouncing the Islamic religion and would face serious harm from the Iranian community and authorities if she continues to question her father’s disappearance.

d.    The IAA acted unreasonably in rejecting the Applicant’s fear of harm when the evidence before it clearly showed that the Applicant had a well-founded fear of persecution.

FCCA Judge’s findings

31    The FCCA Judge found that the first ground was not made out for the reasons at J[42]-[44]:

42.    In substance, Mr Turner submitted that there was not a genuine intellectual engagement with the applicant’s claims in relation to the significance of the events involving what occurred at university, and her discussions about religion at coffee shops, and the incident involving the applicant’s family’s door being the subject of an acid attack, and the discouragement of the applicant in searching for her father.

43.    Mr Turner submitted that the Authority had failed to carry out its statutory duty by recognising that the applicant engaged in a public display of her perceived renunciation of Islam and that the applicant faced a real chance of harm in Iran, including being charged with apostasy.

44.    The Authority’s reason, as summarised above, reflect a genuine intellectual engagement with the whole of the applicant’s claims and evidence and the making of adverse findings that were open for the reasons given by the Authority. There is no substance in the contention that the Authority failed to carry out its statutory duty as advanced in relation to ground 1. Ground 1 is in substance an invitation to the Court to engage an impermissible merits review.

32    The FCCA Judge found that the second ground was not made out for the reasons at J[46]-[47]:

46.    … Mr Turner submitted that the Authority had applied an incorrect test and referred to language in paragraphs that referred to matters of something being likely or unlikely. The references were not that the application by the Authority of the test under the Refugee’s Convention, but rather seeking to read the Authority’s reasons with a fine or keen eye for error.

47.    The Authority correctly identified the relevant law and on the face of the Authority’s reasons correctly applied the relevant law. Further, the Authority correctly identified the country information, and it was open to the Authority to take into account that country information. The Court does accept the submission that the Authority failed to apply the correct real chance test in relation to the Refugee Convention.

33    The FCCA Judge found that the third ground was not made out for the reasons at J[49]-[52]:

49.    … Mr Turner submitted that this was a case where the Court should find that the Authority’s decision was legally unreasonable in relation to a failure to hold that the applicant had a well-founded fear of persecution. Again, this was, in substance, an invitation to engage in merits review.

50.    The Authority’s adverse finding was open for the reasons given by the Authority as summarised above. Those reasons cannot be said to lack an evident and intelligible justification, and relevantly, include the ability of the applicant to leave lawfully on a passport issued by Iran to which the Authority referred in its reasons.

51.    The Authority also referred to the cessation of the applicant’s activities in relation to the search for her father, and reasons why the content of her computer had not come to attention of the authorities, and clearly took into account the applicant’s claims in relation to her activities at university, and provided logical and rational reasons for rejecting the applicant’s claim in relation to the more recent alleged arrest that had not been raised in the applicant’s application for protection. That was an adverse finding that cannot be said to lack an evident and intelligible justification.

52.    The Authority’s reasons in terms of outcome cannot be said to lack an evident and intelligible justification given the reasons of the Authority as summarised above. The adverse outcome is not one to which no reasonable decision maker could come. There was no legal unreasonableness in the determination of the application for review by the Authority.

Course of the preparation of the appeal for hearing

34    On 20 October 2020, Registrar McCormick made “countback” directions for the preparation of the appeal for hearing at a date to be fixed. The orders did not make provision for the filing of an amended notice of appeal. I note that these orders were made after the Reasons were published on 14 October 2020.

35    On 8 December 2020, the Minister’s legal representatives lodged for filing an Appeal Book that included copies of:

(a)    The amended application to the FCCA for judicial review of the IAA’s decision;

(b)    The Court Book that had been before the FCCA Judge;

(c)    The FCCA Judge’s sealed orders made on 9 September 2020;

(d)    The FCCA Judge’s Reasons published on 14 October 2020; and

(e)    The notice of appeal lodged in this Court on 7 October 2020.

36    This matter was allocated to my docket in March 2021. Then, in brief:

(a)    After consulting with the parties about availability for a hearing in June 2021, on 30 March 2021, my associate sent an email to the parties’ legal advisors advising that the hearing of the appeal had been set down for 2.15 pm on 16 June 2021. Having regard to Registrar McCormick’s directions, the email noted that the appellant’s outline of submissions was due by 18 May 2021 and the Minister’s by 1 June 2021;

(b)    COV18 did not file submissions by 18 May 2021 and no contact was made with my chambers to explain that fact. Although the Minister’s then legal advisors sent an email to Mr Williams on 24 May 2021 enquiring when submissions would be filed, no response was copied to my chambers. On 26 May 2021, my associate sent an email to the parties enquiring how the matter would progress in light of those matters and the hearing date of 16 June 2021;

(c)    On 27 May 2021, Mr Williams advised my associate by email that COV18 was in the process of filing an interlocutory application to rely on an amended notice of appeal “given the reasons for judgment were not available at the time of filing”. The email indicated that the appellant would be seeking discovery of documents regarding her entry into Australia and the new grounds would be based on that information. It stated that Mr Williams anticipated that the documents would be “filed tomorrow, all things being equal” and that he was “also unavailable on 16 June 2021”;

(d)    After further correspondence between my associate and the parties’ legal representatives concerning establishing a time for a case management hearing, it was ultimately set down for 2.15 pm on Wednesday, 2 June 2021;

(e)    In the afternoon of 31 May 2021, the following documents were lodged for filing:

(i)    an interlocutory application dated 25 May 2021 with respect to the draft amended notice of appeal referred to in the next paragraph;

(ii)    an affidavit in support sworn by COV18 on 25 May 2021 to which were attached around 550 pages of “exhibits”. The exhibits were, of course, identified with COV18’s initials. Instead of using those initials, I will identify the exhibits by their number. Exhibit 1 was the Reasons and exhibit 2 was a draft amended notice of appeal dated 24 May 2021;

(iii)    an undated subpoena to produce documents directed to the Minister (for which no leave had been granted); and

(iv)    a signed notice of a constitutional matter dated 25 May 2021;

(f)    On 1 June 2021, without leave, the appellant’s written submissions prepared by Mr Williams and comprising 13 single spaced pages (contrary to Registrar McCormick’s directions) were filed. Those submissions addressed the draft amended notice of appeal;

(g)    Also on 1 June 2021, the parties provided draft orders from which it was apparent that the Minister was not aware of the documents that the appellant sought to file on 31 May 2021. After the Minister’s solicitors confirmed that that was the case, and in order to facilitate informed submissions at the case management hearing to be held on 2 June 2021, my associate provided a copy of those documents to the Minister’s solicitors; and

(h)    At 1.27 pm on 2 June 2021, before the commencement of the case management hearing at 2.15 pm, Mr Williams sent an email to my associate, copied to the Minister’s solicitor. Attached to the email was an affidavit, sworn by COV18 on that day, in support of the oral application that Mr Williams made at the commencement of the case management hearing that I disqualify myself because of apprehended bias. My reasons for dismissing that application were published in COV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 670.

Supporting affidavit and draft amended notice of appeal dated 24 May 2021

37    In her supporting affidavit dated 25 May 2021, COV18 said the following at [2], [4], [5] and [7] (as written):

2.    At the time of filing the notice of appeal, the reasons for judgment were not available. Since then, the reasons for judgment have been published.

…

4.    I am seeking leave to rely on the amended notice of appeal and to file fresh evidence and rely on new grounds which was not before the primary judge nor were they before the IAA. The reason why they were not articulated apriori, is because I only recently became of the new grounds, because the Minister did not include in the Court Book, the Suspected Illegal Entry Vessel Report which showed when, where and how I came into Australia, in denial of procedural fairness.

5.    The following documents are the evidence I intend to rely on in support of grounds (1) to (8) the amended notice of appeal.

…

The subpoena to produce

7.    I am applying to the Court for an order that the Minister produce documents regarding my entry into Australia and detention on or around 4 March 2013.

38    The draft amended notice of appeal dated 24 May 2021 comprised 21 pages and contained 12 grounds and extensive particulars:

(a)    Grounds 1 to 8 were not included in the notice of appeal. At this stage, it is enough to note the following matters in relation to the first ground:

(i)    it was to the effect that the decision of Ministers and/or officers of the Commonwealth to detain COV18 “on board SIEV, made on 17 January 2013, was beyond power” with the consequence that COV18 was not a “UMA” (which I take to be an unauthorised maritime arrival) or an “FTR” (which I take to mean a fast track review applicant);

(ii)    particular (a) referred to a decision record dated 1 September 2016 in relation to an Iranian citizen who was a male Hazara who was said to face “a real risk of harm in Afghanistan and Pakistan”; and

(iii)    particular (b) referred to an applicant who departed Pakistan in October 2012 and arrived in Indonesia on 14 November 2012.

None of these factual matters accord with the record of entry interview or the IAA’s decision record which appear in Appeal Book;

(b)    Grounds 9-12 were based on grounds 1-4 of the notice of appeal. As a general matter, additional material was added as subparagraphs of each of grounds 9-10. Deletions were not identified. For instance, ground 2 of the notice of appeal commenced with an acknowledgment that leave was required to raise it. Its equivalent, ground 10, deleted that acknowledgment and raised issues with the primary judge’s finding at J[47] without acknowledging the deletion of the recognition that the ground was a new ground. Grounds 11 and 12 contained acknowledgements that they were new grounds.

39    The draft amended notice of appeal dated 24 May 2021 included:

(a)    Under the heading “Interlocutory application” at [1]-[5], an application for orders directing the Minister to produce communications, documents and information “as per the subpoena to produce filed 4 March 2021” (there was no such document). It sought:

(i)    the JIG Information report made “on or around 17 January 2013”;

(ii)    all documents relating to directions given by officers of the Commonwealth to “turn back” the applicant’s boat and regarding the “interdiction” of “the applicant’s boat on or around 17 January 2013”;

(iii)    all documents regarding “detention of the applicant on or around 17 January 2013, first in closed in detention and then in open detention from 30 January 2013”; and

(iv)    all documents regarding the decision by the Minister to delay exercise of his power under s 46A of the Migration Act “preventing the applicant from making a valid application until after Royal Assent was given to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) thereby causing the applicant to became ineligible for a Permanent Protection Visa (PPV) and only eligible for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise visa (SHEV)”;

(b)    Under the next heading “Relief” at [1]-[5], an application for relief in the nature of a writs of:

(i)    habeas corpus: that the applicant be released from community detention and restrictions placed on her liberty which other members of the public do not experience;

(ii)    prohibition: restraining the Minister and his officers from acting on “the decision to detain the applicant in or around September 2012 and the decision by the IAA made on 1 September 2016”; and

(iii)    mandamus: directing the Minister “to redetermine the decision to delay the exercise of his power under section 46A(2) of the Migration Act 1958 (Cth) until after Royal Assent to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and grant the applicant a Permanent Protection Visa (PPV)”.

On the evidence in the Appeal Book, including COV18’s claims, none of the cited dates has any relevance to COV18 or decisions made in relation to her on the basis that she consistently claimed to have arrived in Indonesia on 31 January 2013 and the IAA’s decision record is dated 10 May 2018.

Orders made on 2 June 2021

40    I made orders dated 2 June 2021 to the following effect:

(a)    Dismissing the oral application that I disqualify myself;

(b)    Vacating the hearing of the appeal listed for 16 June 2021;

(c)    Refusing leave to COV18 to issue the subpoena;

(d)    Requiring the Minister to notify COV18 of any documents listed in the subpoena which the Minister was willing to produce and to produce such documents by 10 June 2021;

(e)    Requiring COV18 to issue any notice to produce by 17 June 2021;

(f)    Requiring the Minister to notify COV18 of any objections to the notice to produce by 24 June 2021; and

(g)    Listing a further case management hearing on 28 June 2021.

SIEV report and other documents produced by the Minister

41    On 10 June 2021, the Minister produced the following documents to COV18 and Mr Williams by email:

(a)    A redacted copy of a Suspected Illegal Entry Vessel report dated 14 February 2013 (referred to alternatively as the SIEV report or the JIG Information report). For present purposes, the SIEV report relevantly stated that:

At approximately 1655 AEDST Friday 8 February 2013, a Customs and Border Protection Dash 8 surveillance aircraft, operating under the control of Border Protection Command, detected a Contact of Interest (COI), approximately 1 nautical mile, south-west of Scott Reef.

At approximately 1857 AEDST Friday 8 February 2013, ACV STORM BAY, operating under the control of Border Protection Command, boarded the now designated SIEV 587, approximately 7 nautical miles south-west of Scott Reef. Nationalities were believed to be Iranian. The ACV STORM BAY escorted SIEV 587 to the sheltered waters of Scott Reef.

At approximately 2100 AEDST Saturday 9 February, HMAS PARRAMATTA operating under the control of Border Protection Command departed Darwin en route to Scott Reef to transport the 55 people currently on board SIEV 587, to Australian Government Authorities at Christmas Island.

At approximately 1013 AEDST Monday 11 February 2013, HMAS PARRAMATTA completed the transfer of all 55 people from SIEV 587.

At approximately 1622 AEDST Thursday 14 February, HMAS PARRAMATTA completed the transfer of all 55 people from SIEV 587 to Australian Government Authorities at Christmas Island.

(b)    A notice concerning COV18’s detention under s 189(3) of the Migration Act on 14 February 2013 at Flying Fish Cove, Christmas Island (detention notice); and

(c)    Screenshots from the Integrated Client Services Environment (ICSE) database showing the visas COV18 has held during the period from 8 May 2013 to “the present”. ICSE is a database maintained by the Minister’s Department.

I note that these documents are before the Court as annexures to the affidavit of Hongyi Gao affirmed on 27 August 2021. Mr Gao is a solicitor employed by the Australian Government Solicitor which took over carriage of this matter for the Minister.

42    On 23 June 2021, COV18 by her counsel served on the solicitor for the Minister a notice to produce.

Orders made on 28 June 2021

43    On 28 June 2021, a further case management hearing was held. Some of the matters addressed at the case management hearing are set out in a copy of an email sent to the parties on 5 August 2021 set out at [47] below. I made the following orders on that day:

1.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), any requirement to comply with the balance of the appellant’s notice to produce dated 23 June 2021 be dispensed with until further order.

2.    By 4 pm on Monday, 26 July 2021, the appellant file and serve:

a.    any interlocutory application and affidavit(s) in support seeking:

i.    leave to amend the notice of appeal, including leave to rely upon new grounds of appeal; and/or

ii.    leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on new evidence on appeal, with any affidavits in support of the grant of that leave to be in accordance with the requirements of r 36.57 of the Federal Court Rules 2011 (Cth); and

b.    a written outline of submissions not exceeding fifteen (15) pages and otherwise in accordance with order 4 below.

3.    By 4 pm on Monday, 23 August 2021, the first respondent file and serve:

a.    any evidence in reply on any interlocutory application; and

b.    a written outline of submissions not exceeding fifteen (15) pages and otherwise in accordance with order 4 below.

4.    All written outlines of submissions must be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures.

5.    The interlocutory application be listed for a hearing before Justice Farrell at 2 pm on Wednesday, 1 September 2021.

Events following 28 June 2021

44    No document identified in order 2 made on 28 June 2021 was filed on or before 26 July 2021.

45    On Thursday, 4 August 2021, the Minister’s solicitors sent an email to Mr Williams drawing to his attention the failure to comply with order 2 made on 28 June 2021 and asking that the documents be provided “as a matter of urgency”.

46    On Friday, 5 August 2021, Mr Williams sent an email to my associate, copied to the Minister’s solicitors and counsel relevantly as follows:

I received an email yesterday by Mr Gao who has taken over carriage of the matter for the Minister, requesting the appellant’s submissions.

To be clear, the appellant moves on the amended notice of appeal dated 24 May 2021, annexed and attached as “AG-2” to the affidavit by the appellant sworn 25 May 2021. The appellant relies on the written submissions filed 1 June 2021.

Mr Gao has been advised of the same.

47    On 5 August 2021, my associate sent an email to Mr Williams and the Minister’s solicitors and counsel as follows:

It does not appear that order 2 made on 28 June 2021 has been complied with. Mr Williams’ email of today appears to seek to rely on a document attached to an affidavit that has not been accepted for filing, the defects in which were drawn to his attention at the case management hearing on that day. Order 2 made on 28 June 2021 was designed to give the appellant an opportunity to address those issues and the necessity to put on the Court file an interlocutory application and supporting affidavit.

Would the solicitors for the Minister please advise promptly whether the Minister is willing to proceed on the basis of Mr Williams’ email sent today. If the Minister is willing to do so, it will be necessary for the appellant to refile the interlocutory application and supporting affidavit which were rejected as explained in the attached message sent to Mr Williams by Registry on 3 June 2021, from which payments detail have been omitted. Registry invited Mr Williams to refile on that date and subsequently enquired as to his intention to refile by email dated 15 June 2021.

Her Honour asks me to enquire of the parties whether it is necessary to list a case management hearing to address these issues.

For completeness, please see:

1.    The attached lodgment details containing Registry’s message to Mr Williams on 3 June 2021.

2.    The attached email sent to Mr Williams and the Minister’s then legal representatives by Registry on 15 June 2020.

3.    An excerpt from the case management hearing held on 28 June 2021 at which the following interchange occurred:

HER HONOUR: Well, can I just raise one other matter with you? And that is that when the interlocutory application was filed together with a summons which I didn’t give leave to issue, I understand that the process that registry undertakes is to not accept any of those documents and for you to refile. I understand at the moment there has been no refiling of the interlocutory application, the supporting affidavit.

MR WILLIAMS: Yes, that’s correct, your Honour. And I did receive that email inviting the appellant to refile the interlocutory application, and the constitutional matter, and I believe, the affidavit. And when I wrote to the – to Ms Watson on 22 June seeking proposed consent orders, they were refused. So I didn’t agitate with the registry or the associate that issue, leaving it for today. But we will need orders providing for the filing of those documents plus the production of the documents requested in the notice, and then perhaps some timetabling for submissions and to come back and have the argument before this honourable court.

HER HONOUR: Well, you don’t need leave to file the interlocutory application and the supporting affidavit or the constitutional notice.

MR WILLIAMS: Well, your Honour, I thought they – it was initially blocked. It was refused, so ‐ ‐ ‐

HER HONOUR: It was not – Mr Williams, it was [pending]– it was ultimately sent back to you because of one of the documents – one of the documents [was] refused. But you were invited to refile. So what I’m trying to get from you is a sense of when you intend to do that. But I also just wanted to raise one issue with you. When I scan[ned] those documents – you know, look[ed] through them – it appeared to me that at least some of the material in it did not relate to this matter. And just one example is that there is a suggestion in one of the documents – in the interlocutory part of one of those documents – that the appellant left her country of origin sometime in 2012. And that is, as I understand it, not consistent with the materials in the appeal book. So I’m just giving you an example of – I think there are some errors in it.

MR WILLIAMS: Yes.

HER HONOUR: And I’m suggesting to you that before you [refile], you might want to have another look at it just to make sure that everything in it – you know, everybody uses preceden[ts], so I just want to make sure that everything in it actually relates to your client.

MR WILLIAMS: Thank you very much, your Honour, and I do apologise. I will definitely go through that and proofread it again. They were, essentially, draft documents, and we were waiting on some further – I thought I cross‐checked it with the appeal book, but there may have been some, as you say, copy and paste issues with the precedent, and I apologise for any confusion. And I will take a firmer eye to those issues. I guess when we get a bit closer to the amending documents, that’s when – and I will do it as soon as possible. But I think, you know, once we’ve got a keen eye on what the documents are and how they affect the grounds, then I will certainly proofread. And thank you, your Honour, for that kind courtesy.

4.    The attached copy of the orders made on 28 June 2021.

48    On 6 August 2021, Mr Williams responded to my associate, copied to the Minister’s solicitors and counsel relevantly as follows:

Please be advised that the appellant relies on the amended notice of appeal as annexed to the affidavit and the submissions for the purposes of the interlocutory application for leave to appeal.

This is so for the purposes of a future appeal if the appellant is denied leave.

There is no change to any of the grounds nor is there any changes to the written submissions.

Any issues of slippage are minor and can be addressed if leave is granted to amend.

Regarding refilling, the affidavit annexing the amended notice of appeal. filed and read. There is no need for duplication.

The appellant is of the view that there is no need for a case management.

49    Later on 6 August 2021, the Minister’s solicitors sent an email to my associate, copied to Mr Williams and the Minister’s counsel as follows:

We refer to the above matter, to your email below, and to Mr Williams’ emails of 5 and 6 August 2021.

The Minister does not consider that the appellant has complied with order 2 of the Court’s orders of 28 June 2021.

However, the Minister now understands that the appellant will move on her interlocutory application dated 25 May 2021, and will read in support of that application the affidavit of the appellant dated 25 May 2021. Annexure [initials redacted]-2 to that affidavit is a proposed amended notice of appeal. Annexure [initials redacted]-1 is the judgment of the Federal Circuit Court and Annexures [initials redacted]-5 to [initials redacted]-25 are the further evidence the appellant seeks to rely on, on appeal. There are no Annexures [initials redacted]-3 or [initials redacted]-4.

The Minister is willing to proceed on the basis of the above understanding. Specifically, and to be clear, the Minister proceeds on the basis that:

1.    Annexures [initials redacted]-5 to [initials redacted]-25 inclusive are the totality of the further evidence the appellant seeks to rely on, on the appeal, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). There is and will be no further evidence on which the appellant seeks to rely, aside from those Annexures [initials redacted]-5 to [initials redacted]-25.

2.    The affidavit of the appellant dated 25 May 2021 is the evidence that will be read in support of the applications for leave to amend, to raise new grounds on appeal, and to rely on further evidence (in purported compliance with r 36.57 of the Federal Court Rules 2011 (Cth)).

3.    The appellant relies on her written submissions filed 1 June 2021 and will not file/serve any further written submissions in advance of the interlocutory hearing on 1 September 2021.

It is necessary for the appellant to file the interlocutory application and supporting affidavit identified above.

The Minister does not consider, at this stage, that it is necessary for the Court to convene a case management hearing to address these issues.

50    On Monday, 9 August 2021, my associate responded to the parties’ representatives by email as follows:

Having regard to the below correspondence, her Honour has asked me to confirm that it is necessary for the appellant to re‐file the interlocutory application and the supporting affidavit both dated 25 May 2021 if she wishes to proceed on the basis of the interlocutory application and affidavit at the hearing listed for 1 September 2021.

As noted in the email sent to the parties on 5 August 2021, those documents were rejected by Registry when leave was refused to the issue of a subpoena. The filing fee was refunded. The interlocutory application and affidavit do not currently form part of the Court file.

If the appellant wishes to proceed on the basis of the interlocutory application and affidavit, her Honour directs that they be lodged for filing by 4.30 pm on Friday, 13 August 2021. If that is not done, the hearing on 1 September 2021 will proceed on the basis of the only filed notice of appeal.

51    Mr Williams responded to my associate and the Minister’s solicitors and counsel on the same day as follows (as written):

Noted with thanks Associate.

The appellant will arrange filing ASAP and before a Friday 13 August 2021.

52    The Court’s electronic court file discloses that the interlocutory application, supporting affidavit and notice of a constitutional matter were lodged for filing in the afternoon of Monday, 16 August 2021.

53    In response to a request from the Minister, on 25 August 2021, I made orders extending the time for the Minister to file and serve any evidence in response to the interlocutory application and written submissions to Monday, 30 August 2021.

54    In submissions filed on 30 August 2021, counsel for the Minister noted that:

(a)    The Minister had not been served with the documents referred to at [41] as proposed new evidence on the appeal; and

(b)    The Minister had not been served with sealed copies of the interlocutory application or COV18’s affidavit, both dated 25 May 2021.

55    On 30 August 2021, the Minister also filed Mr Gao’s affidavit referred to at [41] above.

Proposed amended notice of appeal and appellant’s outline of oral submissions

56    The hearing on 1 September 2021 was scheduled to commence at 2.00 pm. It was to be held on a digital platform. The Minister’s counsel appeared at the appointed time, but Mr Williams did not. At 2.00 pm, Mr Williams sent an email to my associate, copied to the Minster’s solicitor and counsel indicating that he had had technical problems. I adjourned the matter to 2.30 pm. At 2.28 pm, Mr Williams sent another email to my associate, copied to the Minister’s solicitor and counsel. Attached to the email were the proposed amended notice of appeal and a written outline of oral submissions dated 1 September 2021. The email stated that COV18 sought leave to amend ground one, withdraw grounds 2-8, and maintain grounds nine to twelve of the draft amended notice of appeal. The outline of oral submissions indicated that COV18 continued to rely on her written submissions dated 1 June 2021.

57    I note that the proposed amended notice of appeal differed from the draft amended notice of appeal in that:

(a)    All of the material in the draft amended notice of appeal relating to an interlocutory application to obtain documents from the Minister and relief in the nature of writs of habeas corpus, prohibition and mandamus identified at [39] above has been crossed through. Instead, new [1] under the crossed out heading “Interlocutory application” is an order that leave be given to the proposed amended notice of appeal being filed and served. Under the crossed-out material referred to at [39] above, and under the heading “Relief”, are new paragraphs [1]-[3] claiming relief that the appeal be allowed, the FCCA Judge’s orders be set aside and the Minister pay COV18’s costs as agreed or assessed. The original plea for relief set out at [5] above still appears at the end of the document; and

(b)    Ground 1 has been amended to raise a breach of procedural fairness claim.

58    The Minister did not object to the Court receiving the proposed amended notice of appeal and outline of oral submissions even though they were submitted with neither leave from the Court nor notice to the Minister. Ms Hooper, counsel for the Minister, sought an order for costs thrown away. Counsel also sought, and the Minister was granted, leave to file brief submissions addressing matters raised in COV18’s outline of oral submissions after the hearing, and those submissions were subsequently filed.

59    The Minister opposed the grant of leave to COV18 to file and serve the proposed amended notice of appeal or to leave being granted to her to advance any of the proposed grounds on appeal.

Principles

COV18’s submissions

60    Relying on Gleeson J’s decision in SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 (SZSRR) at [47]-[54], COV18 submitted that the Court should use the power conferred by r 1.34 to dispense with compliance with the Federal Court Rules to allow COV18 to amend her notice of appeal. COV18 says that, in the circumstances, the Court should have regard to the “dictates of justice”, especially where the amendments are “necessary” to correct errors, omissions, or defects; where the amendments are “necessary” to allow the real questions of fact and law to be heard and determined: see Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 (JL Holdings) at 155 (Kirby J).

61    COV18 went on to submit as follows:

(a)    COV18’s claims cannot be categorised as “fanciful, trifling, implausible, improbable, tenuous or contradicted by all of the available documents or evidence”, relying on decisions of Perry J in the context of strike out applications: see Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 (Riva) at [50]; Simjanovska v Department of Human Services [2019] FCA 499 at [26]. COV18 also relied on the principles relevant to exercise of the power to strike out proceedings as explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129;

(b)    COV18 noted the standard under s 486E of the Migration Act, that is, “an action need not be hopeless not to have reasonable prospects of success”, which I understand to mean that an action need not be hopeless for it to have “no reasonable prospect of success”;

(c)    A “good arguable case” would need to fall above hopeless but below a 50% chance of success: see Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG [1983] 1 WLR 1412; [1984] 1 All ER 398 at 404. He noted that Mustill J said that “the court should not be drawn into a premature trial of the action, rather than a preliminary appraisal of the plaintiff’s case”; and

(d)    There are reasonable explanations as to why the grounds were not fully articulated in the Court below:

(i)    COV18 was not aware of the SIEV report and seeks further discovery with regard to the SIEV report. COV18 further says that there is no prejudice to the parties and, ultimately, the proposed grounds have merit: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (VUAX); Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [90];

(ii)    having regard to the decision in SZTMH v Minister for Immigration and Border Protection [2015] FCA 124; (2015) 230 FCR 550 at [55]-[59], [64], there is a reasonable explanation for the delay in filing the amended application and the grounds raise an arguable case pursuant to s 486E of the Migration Act. In this regard, COV18’s written submission rely on an affidavit sworn by her on “22 July 2020”. There is no such affidavit in evidence in these proceedings; the affidavits in evidence were sworn by COV18 on 6 October 2020, 25 May 2021 and 2 June 2021. I take her to be relying on the matters identified at [37] above and on her affidavit sworn on 2 June 2021 at [3] where she said:

At the time of filing the notice of appeal, the reasons for judgment were not available. The reasons for judgment were not made available on AUSTLII until 14 October 2020. I understand that my previous lawyer requested the reasons for judgment. However, I did not become aware of them until 18 May 2021, after my barrister checked AUSTLII.

(iii)    developments in the law: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16) (Kenny, Tracey and Griffiths JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; (2021) 284 FCR 455 (Kenny, Bromberg and Anderson JJ); BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36 (Kenny, Tracey and Griffiths JJ); and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (Bell, Gageler, Keane, Nettle and Gordon JJ).

Applicable principles

62    Rule 36.10 of the Federal Court Rules allows an appellant, without leave of the Court, to amend a notice of appeal during the period of 28 days after filing the notice of appeal. Rule 36.11(1) of the Federal Court Rules allows a party to apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of an appeal. Rule 36.11(2)(b) permits a party to apply to the Court for an order giving leave to amend the grounds of appeal. Rule 36.11 places no limits on how the discretion conferred by r 36.11(2)(b) may be exercised.

63    In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon), the High Court found that a party did not have an entitlement to amend a pleading subject to payment of costs by way of compensation; JL Holdings at 154-155 was disapproved: see Aon at [6] and [30] (French CJ) and [95]-[98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). All matters relevant to the exercise of the power to permit amendment should be weighed. Case management concerns such as the fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants assume importance on an application for leave to amend. Relevant matters would also include the nature and importance of the amendment to the party applying, the stage the litigation had reached when the amendment was sought, and the explanation for any delay in applying for amendment.

64    Another relevant issue is whether the new claim that an applicant wishes to include in the pleadings by way of an amendment would have been struck out under s 31A of the Federal Court of Australia Act 1976 (Cth) had it appeared in the original application: SZSRR at [48]-[52]. In Riva, Perry J summarised principles relevant to strike out under s 31A as follows:

45    First, the respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

46    Secondly, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 …”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); see also Cassimatis at 271 [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:

52.    … effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. … [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

53.    In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

47    Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at 408-409 [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at 272 [50] (Reeves J).

48    In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at 131 [24] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at 409 [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).

49    Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at 271-272 [46] that:

… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

50    To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

65    The principles applicable to whether leave should be granted to argue a ground for the first time on appeal (new ground) are well established. They are set out in the Full Court’s decision in VUAX at [46]-[48] (Kiefel, Weinberg and Stone JJ) as follows:

46.    … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47.    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

48.    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

66    The Court has a discretion to receive further evidence in an appeal under s 27 of Federal Court of Australia Act and r 36.57 of the Federal Court Rules. Relevant principles were conveniently summarised in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [32]-[34] (Katzmann, Charlesworth and Burley JJ) as follows:

32    A convenient summary of the relevant principles on this subject appears in the judgment of the Full Court in Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74]–[76] (North, Barker and Katzmann JJ). In short, the Court has a discretion to receive further evidence in an appeal. That discretion is conferred by s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The power is not limited to “fresh” evidence, that is to say, evidence of which an appellant was unaware at the time of the original hearing and with reasonable diligence could not then have been obtained: CDJ v VAJ (No 1) (1998) 197 CLR 172 at [51]-[52] (Gaudron J). But that circumstance is not irrelevant. Moreover, despite the absence of express limitations in the section itself, the discretion is not at large. As the Full Court observed in Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme [2007] FCAFC 136; 245 ALR 389:

71    The discretion to receive further evidence must be exercised judicially, consistently with proper judicial process and in the interests of justice. It is highly unlikely that the legislature intended that s 27 should be construed in such a way as to obliterate the distinction between original and appellate jurisdiction.

72    The proper role of an appellate court under s 25 of the Federal Court Act … is ordinarily to correct error. Nothing in CDJ was, in our view, intended to minimise the force of the observation of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7 …

33    Finally, the power is remedial: August v Commissioner of Taxation [2013] FCAFC 85; ATC ¶20–406; 94 ATR 376 at [116] (Siopis, Besanko and McKerracher JJ). An important consideration in determining whether it should be exercised is whether, if the further evidence had been available at the trial, it would have produced, or at least would be likely to have produced, a different result.

34    We would add to this summary one further observation. Section 27 of the FCA Act is one of the civil practice and procedure provisions covered by s 37M of the FCA Act. Section 37M(3) imposes an obligation on the Court to exercise any such power in the way that best promotes the overarching purposes of those provisions. That purpose is described in s 37M(1) as the facilitation of the just determination of disputes as quickly, efficiently and inexpensively as possible.

67    I will consider each of the grounds in the proposed amended notice of appeal in turn having regard to these principles.

Factors that weigh in the balance

68    There are a number of factors to be weighed in the balance:

69    First whether any new ground raises a question of law or requires new evidence. The Minister submitted, and I accept, that the proposed first ground of appeal requires new evidence, which weighs against the grant of leave to that ground. Proposed grounds nine to twelve raise questions of law, which is neutral as to the grant of leave.

70    Second, whether the party seeking to raise the new ground was legally represented in the Court below and whether there is an acceptable explanation for why any new ground or new evidence was not raised in the proceedings in the Court below. A solicitor represented COV18 in the proceedings before the FCCA.

71    The making of a deliberate forensic decision in the hearing below not to take a point strongly militates against the granting of leave to advance it on appeal. Where the appellant demonstrates that the point was not taken below as a result of an oversight, it may follow that, the negative weight accorded to the omission will not be as great: see Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [13] (Derrington J). There is no evidence as to whether the grounds on which COV18 now seeks to rely were considered by COV18’s legal representative in the proceedings in the FCCA. Contrary to Mr Williams’ submission, the fact that the appellant has a different counsel on appeal is not an adequate explanation: Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 at [5] (Davies, Moshinsky and Cheeseman JJ).

72    These factors weigh against the grant of leave.

73    Third, whether there was any delay in raising the ground. An iteration of grounds nine to twelve were raised in the notice of appeal as the first to fourth grounds; accordingly, those grounds were raised promptly. This factor is neutral in relation to those proposed grounds.

74    There was substantial delay in raising the proposed first ground for the first time in the draft amended notice appeal dated 24 May 2021. No adequate explanation has been given for why the first ground was not included in the notice of appeal prepared by Mr Williams. A legal practitioner’s busy practice is not an acceptable explanation for any of COV18’s delay in prosecuting the appeal on the basis of the new grounds. The fact that Mr Williams interrogated AustLII for the first time in May 2021 is not an adequate explanation for the delay. The FCCA Judge’s reasons were published on 14 October 2020, after Mr Williams commenced acting. The Appeal Book was filed on 8 December 2020 and it contained a copy of the Reasons. I understand that Mr Williams was acting on a direct brief, so that he may not have had direct access to the Court file. However, it was open to him to do regular searches on AustLII for the Reasons and to ask the Minister’s solicitors to advise him by email when they filed documents, allowing for the fact that the Reasons may have been given to COV18’s former solicitors and there is no evidence of when the COV18 was served with the Court Book.

75    Further, no approach was made to the Minister for a copy of any of the documents referred to at [41] until the draft subpoena was lodged for filing on 31 May 2021; the draft subpoena was not served on the Minister on that day. Mr Williams’ view that the SIEV report had not been provided in other matters does not satisfactorily explain the delay in seeking the documents. It is apparent from the references to the IAA in the notice of appeal that he was aware of the fact that COV18’s application for a SHEV had been subject to review by the IAA, and therefore under Part 7AA of the Migration Act on the basis that COV18 was an unauthorised maritime arrival and a fast track applicant. Accordingly, it was likely that there would be documents of the kind referred to at [41] in her case. Moreover, I note that essentially the same ground as the first ground of the draft amended notice of appeal had been rejected in matters in which Mr Williams represented the migrant since 2019: see GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444; EXL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1255; CWW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 26 (CWW18) and EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879 (EHZ18). I note that grounds hauntingly similar to the first to eighth grounds of the draft amended notice of appeal were rejected in CHV17 v Minister for Immigration and Border Protection [2021] FCCA 1489 (CHV17) at [12], [35]-[74] on 2 July 2021.

76    In those circumstances, there is no acceptable explanation why the first ground was not framed as a breach of procedural fairness ground until 1 September 2021, the day of the hearing. That is especially so where, on 28 June 2021, leave was given for to COV18 to file an interlocutory application seeking leave to rely on an amended notice of appeal including new grounds to be filed by 26 July 2021.

77    That delay weighs heavily against the grant of leave to raise the proposed first ground.

78    Fourth, any prejudice to the other party. The Minister asserts prejudice because of the need to adduce new evidence on appeal if leave were to be granted to raise the first ground of the proposed amended notice of appeal on appeal. The Minister also relies on Bromwich J’s decision in Han v Minister for Home Affairs [2019] FCA 331 (Han) in claiming prejudice if the Court permits COV18 to raise proposed grounds one and nine to twelve for the first time on appeal because it would have the result that this Court would become the de facto trial court and he would be deprived of the right of appeal conferred by s 24(1)(d) of the Federal Court Act.

79    While I accept that the need to adduce new evidence is a relevant prejudice, I am less convinced that losing an avenue of appeal would be of greater moment than an applicant for a SHEV with a meritorious ground being denied the right to rely on a new ground on appeal.

80    Fifth, the merit of the proposed new grounds. That issue is significant. The weaker the merit of the issues sought to be raised, the greater the need for other aspects to be favourable, such as the explanation for not taking the points below and prejudice to the opposing party: see Han at [15]. I will consider the merit of each of the proposed first and ninth to twelfth grounds of the proposed amended notice of appeal later in these reasons.

81    Sixth, this is an appeal in a refugee matter. The significance of this factor was explained in CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [36]-[37] where the Full Court (Murphy, Mortimer and O’Callaghan JJ) said:

36.    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68 at [55] (Flick J).

37.    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).”

82    Seventh, the scheme of the Migration Act is that judicial review of decisions of the kind raised in this case should be considered by the Federal Circuit and Family Court of Australia (Div 2) (as the FCCA is now known) in the first instance and by this Court on appeal. Having said that, the scheme was introduced against a background that this Court may entertain new grounds on appeal where it is required in the interests of justice, although it is important that the distinction between first instance and appeals be maintained.

First ground of the proposed amended notice of appeal

83    The proposed first ground is as follows (emphasis added):

Ground 1: The non-disclosure of information under section 473GB of the Migration Act 1958 (Cth)

1.    The appellant seeks leave to articulate a new ground which was not before the primary judge that the appellant was denied procedural fairness by the Minister withholding the SIEV Report, establishing when, where and how the appellant entered Australia. The appellant contends that the decision by the Minister and/or officers of the Commonwealth to detain the appellant on board SIEV, made on 17 January 2013 [sic], was beyond power. As a consequence, the appellant was not a “UMA” or a “FTR” appellant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). The decision by the IAA made on 17 January 2013 [sic] was therefore vitiated by jurisdictional error. The appellant contends that the non-disclosure of the relevant documents which were not subject to a certificate issued under section 473GB of the Migration Act (Cth), gave rise to a practical injustice.

The italicised material reflects amendments to the first ground of the draft amended notice of appeal dated 24 May 2021. I also note that on 17 January 2013, COV18 was still in Iran.

84    There followed “Particulars” under the following headings:

(a)    The applicant’s details: This paragraph (a) had been amended (though not marked as amended) from the equivalent paragraph in the draft amended notice of appeal dated 24 May 2021 to read:

At [7] of the decision record by the IAA, the appellant is a citizen of the Islamic Republic of Iran (Iran), who claims protection in the Commonwealth of Australia (Australia) under the refugee and complementary criterion on the grounds that the appellant faces a real risk of harm as a westernised female who is opposed to Islamic extremism, including not wearing the hijab, and who is an atheist and an apostate, which is punishable by the death sentence under Sharia law in Iran, as summarised at [5] of the decision record by the IAA.

However, the “particulars” of this particular had a Court Book reference to an entirely different matter for which the IAA’s reasons were dated 1 September 2016. Further, I note that this exposition of COV18’s claims is not consistent with the expression of them in DR[5] and [7] except to the extent that COV18 claims to fear harm as an atheist who would be considered to be an apostate upon return to Iran; and

(b)    The applicant’s entry into Australia: This paragraph was also numbered (a). It referred to “the applicant” departing Pakistan on 13 October 2012 and departing Indonesia on 14 November 2012, which do not reflect COV18’s claims. The “Particulars” of this item referred to an entry interview on 21 December 2012 and contained Court Book references which do not relate to COV18’s matter.

I note that COV18’s written outline of oral submissions contained similar defects to the proposed amended notice of appeal.

85    There followed particulars under the following headings. I note that none of the material was updated by reference to the SIEV report or the detention notice provided to Mr Williams on 10 June 2021 and no leave was sought to rely on the SIEV report as new evidence:

(a)    The policy of the Australian government to “turn back the boats” and “interdiction”: It is notable that SIEV 587 was not turned back, so this particular has no relevance;

(b)    The search and rescue operation by the Australian authorities;

(c)    The detention of the applicant by the Australian authorities;

(d)    The detention of the applicant on Christmas Island;

(e)    The transfer of the applicant from closed to open detention;

(f)    Beyond power: Under this heading, were two paragraphs numbered (e) and (f) as follows (as written):

There is no place for a general defence of superior orders or of Crown or executive fiat in Australian law. Neither the Crown nor the executive has any common law right or power to dispense with the observance of the law or to authorize illegality. No power, statutory or non-statutory, authorises the Commonwealth to engage in illegal conduct in the territory of a foreign state, including the territorial waters of a foreign state.

The decision by the Minister and /or officers of the Commonwealth to detain the applicant on board a boat on or around around 17 January 2013 was therefore void ab initio. A decision that involves jurisdictional error, is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.

86    In relation to the contention that the failure to disclose the SIEV report (which was not subject to a certificate issued under s 473GB of the Migration Act) was a breach of procedural fairness obligations which gave rise to practical injustice, the written outline of oral submissions said (as written):

78.    With regard to ground 1, the applicant contends that the non-disclosure of the relevant documents which were not subject to a certificate issued under section 473GB of the Migration Act (Cth), gave rise to a practical injustice.

Case law - Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.

79.    In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, Kenny, Tracey and Griffiths JJ observed at [100] as follows

[100] For similar reasons, Beach J’s second limb has no application. That is because a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.

80.    By special leave, the visa applicants in CQZ15 and BEG15 and the Minister in SZMTA appealed to this Court, which unanimously held that the fact of a notification to the Tribunal that section 438 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for review. By majority, this Court held that a breach by the Tribunal of that obligation will result in jurisdictional error if, and only 20 if, the breach is material, in the sense that the breach deprives the applicant of the possibility of a successful outcome, referred to hereafter as the practical injustice test. In CQZ15, the FCA was correct to remit the matter to the FCCAC. In BEG15, the FCA was correct to find no appealable error in the FCCA’s decision. In SZMTA, the Tribunal’s denial of procedural fairness was immaterial and the FCA was wrong to find that the Tribunal had committed a jurisdictional error.

87    In oral submissions:

(a)    Mr Williams submitted that the fact that the Minister “withheld” the SIEV report and a s 473GB(3) certificate was not issued gave rise to a reasonable apprehension of bias as contemplated by BBS16 at [100] and that gave rise to practical injustice. Counsel submitted that, as the IAA did not have the SIEV report it could not consider whether or not to use its discretionary powers to admit new evidence and COV18 had no opportunity to address the issues the SIEV report might have raised concerning whether she was an “unauthorised maritime arrival”;

(b)    In response to a question as to whether each of the particulars of the proposed first ground were open in light of the content of the SIEV report which was provided to Mr Williams on 10 June 2021 (see [41] above), Mr Williams submitted that:

(i)    the submissions around the second to eighth grounds of the draft amended notice of appeal were relevant in light of the content of the SIEV report and give rise to the “practical injustice”. The proposed grounds two to eight (which had been withdrawn) were headed “The detention of the applicant in Indonesian waters was contrary to law” (second ground), “The rescue vessel belonged to the Commonwealth of Australia was registered in Canberra, which was not an excised offshore [place]” (third ground), “The notice of detention was invalid and/or beyond power” (fourth ground), “The appointment of the Port of Christmas Island was invalid” (fifth ground), “The appointment of the Port of Ashmore Reef was invalid” (sixth ground), “The “No Advantage Principle” and the “No-Resettlement in Australia” regimes were unlawful” (seventh ground), and “The decision by the Minister for Home Affairs to delay exercising his power, pursuant to section 46A(2) of the Migration Act 1958 (Cth) causing the applicant to become ineligible for permanent protection visa was beyond power” (eighth ground);

(ii)    if leave to rely on the proposed first ground were given, there would be a need for some “tidying up” of those issues and a month would be required to file an amended notice of appeal and “refine arguments” in light of the content of the questions raised by the SIEV report; and

(iii)    there are real questions around the validity of Scott Reef and the port and the territorial borders there. The “heart and nub” of the argument, as in the Ashmore Reef cases, is whether Scott Reef was in a migration zone or an excised migration zone;

(c)    In submissions in reply to oral submissions made by Ms Hooper, Mr Williams submitted that:

(i)    an arguable case has been raised. The argument concerning Scott Reef is yet to be developed. The Full Court in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178; (2018) 260 FCR 447 (Perram, Wigney and Lee JJ) (DBB16) found that Ashmore Reef was not properly classified and the argument as to whether Scott Reef was in or out of the migration zone needs to be developed and decided. Mr Williams said that “We just haven’t had an opportunity to look at the Scott Reef issue more clearly”;

(ii)    it is arguable whether the SIEV report formed part of the “review material” which the Secretary of the Department was required to provide to COV18 under s 473CB of the Migration Act. While the Minister says that the SIEV report was not relevant because it did not go to any of COV18’s protection claims and there is no evidence that the Secretary considered it to be relevant for the purposes of s 473CB(1)(c), the entry interview was included in the review material, but the SIEV report was hidden. The SIEV report was relevant to COV18’s claims because it went to whether COV18 was an “unauthorised maritime arrival” or a “fast track applicant” and therefore to the IAA’s jurisdiction;

(iii)    COV18’s evidence given in her affidavit sworn on 25 May 2021 at [8] was that:

Around that time, I departed Iran for Indonesia and then Indonesia for Australia by boat. I was rescued at sea by the Australian authorities and detained and taken to Christmas Island. I am unable to recall the exact dates and times due to the nature of the voyage from Indonesia to Australia.

Once the legal argument was raised as to whether COV18 was an unauthorised maritime arrival, it was up to the Minister to produce the SIEV report to avoid practical injustice;

(iv)    the decision in BBS16 on which COV18 relies relates to s 473GB of the Migration Act. The “mere fact that the Minister kept this SIEV report [hidden] certainly meets the test of a reasonable apprehension of bias”, and COV18 would want to argue it; and

(v)    the decisions in EHZ18 and CHV17 have no role to play – they related to grounds 2 to 8 which have been withdrawn.

Consideration and disposition

88    Leave to rely on the first ground of the proposed amended notice of appeal should be refused. Most importantly, the ground lacks merit. The other balancing factors generally also weigh against the grant of leave. As leave to rely on the new ground is refused, there is no utility in granting COV18 leave to amend the notice of appeal to include the first ground of the proposed amended notice of appeal or to rely on new evidence related to it.

89    It is first necessary to consider the application of s 473CB(1) of the Migration Act even though breach of that provision is not specifically pleaded. A failure by the Secretary to comply with s 473CB(1) of the Migration Act may prevent the IAA from conducting the “review” contemplated by Part 7AA such that jurisdictional error on the part of the Authority may be established. Not every breach of s 473CB(1) will result in jurisdictional error. Rather, whether that is so will depend upon the gravity of the breach: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299 at [35] (Allsop CJ, Markovic and Steward JJ).

90    The SIEV report says nothing about COV18’s protection claims. It is therefore difficult to see how the Secretary’s failure to provide it to the IAA could be material to the IAA’s conduct of the review. I note that that is in contrast to the record of the entry interview conducted on 4 March 2013 which contained protection claims and formed part of the review material provided to the IAA. Relevantly to s 473CB(1)(c), COV18 has presented no evidence that, at the time the delegate’s decision and other review material were referred to the IAA, the Secretary had reason to doubt the IAA’s jurisdiction or that the Secretary subjectively believed the SIEV report might be relevant for the purpose of the review. Absent such evidence, COV18 cannot discharge the onus of proving any failure by the Secretary to comply with s 473CB(1)(c): see CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 at [28]-[42] (Jagot J), [4] (Reeves J).

91    Division 3 of Part 7AA (Conduct of review) and ss 473GA and 473GB are together an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA: see s 473DA. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the IAA in the conduct of a review under Part 7AA is to be determined. There is no evidence of a certificate under s 473GB of the Migration Act in this case. Even if there were, the authorities concerning procedural fairness in the context of non-disclosure certificates under s 438 of the Migration Act have no application in the context of Part 7AA: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [1]-[2] and [29]-[34] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). That is not to say that an issue of bias cannot arise: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [91]-[105] (Nettle and Gordon JJ), [109] (Edelman J).

92    The issue of bias was not pleaded in the proposed first ground. However, Mr Williams submitted that the failure of the Minister to provide the SIEV report to the IAA was indicative of bias. In circumstances where the issue of whether COV18 was a “fast track applicant” was first raised in this matter by Mr Williams on 25 May 2021, I do not think that there is any reasonable prospect of success on that ground.

93    It is necessary to say that the proposed first ground and its particulars are, in my view, embarrassing and do not provide an adequate basis for the grant of leave. That ground would therefore be liable to be struck out. There are many errors as to factual matters relating to COV18’s claims and circumstances. No attempt appears to have been made to update the proposed amended notice of appeal or the submissions by reference to the information provided to Mr Williams on 10 June 2021 (see [41] above) or to correct those factual errors notwithstanding that many of the errors were drawn to Mr Williams’ attention on more than one occasion. COV18 did not include the SIEV report in an affidavit supporting the interlocutory application dated 1 September 2021. The SIEV report is central to the first ground. COV18 was given until 26 July 2021 to file an interlocutory application in relation to an amended notice of appeal and the proposed amended notice of appeal was actually provided on 1 September 2021. That was adequate time in which to clarify the ground and any new evidence on which COV18 sought to rely by reference to her claims and procedural matters, the material in the documents referred to at [41] above, the Migration Act and any relevant regulations or proclamations, and any arguments the appellant wished to rely on if leave were granted. Further, Mr Williams’ oral submissions that the second to eighth grounds of the draft notice of appeal somehow remained relevant to the prejudice said to have been suffered by COV18 are puzzling, given that those grounds were withdrawn.

94    Importantly, it does not emerge from the proposed amended notice of appeal or the submissions dated 1 September 2021 that COV18’s argument was whether or not Scott Reef was in the “migration zone”. That was a matter raised at the hearing. The respondent should not be put to the time and expense of having to deal with such disordered materials nor should the respondent be required to deal with them without notice at the hearing. Mr Williams’ apparent expectation that all of these things could be ignored and he would be given a further month to make further amendments to the proposed amended notice of appeal after leave was granted is inconsistent with accepted case management principles.

95    Having said that, I will address the stream of Mr Williams’ argument which relates to the interception of SIEV 587 near Scott Reef. In my view, this case is distinguishable from DBB16. Following the interception of SIEV 587 near Scott Reef, its passengers were taken to a lagoon at Scott Reef and transferred to HMAS Parramatta which transported the passengers to the Territory of Christmas Island, an “excised offshore place” within the “migration zone”, which is the port at which they landed. In DBB16, the Court found that as Ashmore Reef did not have a port and DBB16 “entered Australia” when she arrived in Darwin. Darwin was not an “excised offshore place”.

96    In light of the decision in CWW18 at [17]-[29], it appears that any argument that COV18 was not an “unauthorised maritime arrival” who “entered Australia by sea” at a port in an “excised offshore place” (the Territory of Christmas Island) has no reasonable prospect of success. I note that in CWW18 at [18], Judge Driver relied on what he said in FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 at [28]-[34] as follows:

First, the issue is irrelevant given that the applicant disembarked onto land on Christmas Island on 17 September 2012. The Territory of Christmas Island was at that date an “excised offshore place” within s.5AA(1)(a)(i) of the Migration Act. The applicant thereby met the definition of “unauthorised maritime arrival” in s.5AA(1)(a) and (2)(a) of the Act. He was thus a “fast track applicant” within the definition in s.5(1) of the Migration Act, and the delegate’s decision was thus a “fast track decision” within s.5(1) and thus a “fast track reviewable decision” within s.473BB, which the Authority had jurisdiction to review under s.473CC(1).

Secondly, the port was in any case validly appointed. The only argument for invalidity relied upon by the applicant is that the appointment of a port at Christmas Island on 22 January 1981 was made the day before the commencement of the empowering provision in s.3 of the Migration Amendment Act (No. 2) 1980 (Cth) (the 1980 Amendment Act). However this does not mean that the appointment was invalid, as the then s.4 of the Acts Interpretation Act 1901 (Cth) has the effect that the appointment was permitted and came into effect on the same day as the empowering provision ie 23 January 1981.

At the time of publication of the appointment of a port at Christmas Island in the Commonwealth Gazette No S9 on 22 January 1981 (the Appointment), s.4 of the Acts Interpretation Act, which had then been inserted by s.3(1) of the Acts Interpretation Amendment Act 1976, relevantly provided as follows:

(1)    Where an Act (in this section referred to as the Act concerned), being -

(a)    an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or

(b)    an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.

(2)    An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect-

(a)    on the day on which the Act concerned comes into operation; or

(b)    on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made, whichever is the later.

It was necessary for the Appointment to be in place at least when s.13 of the 1980 Amendment Act commenced operation (i.e. 23 January 1981). That was because s.4 of the 1980 Amendment Act extended the operation of the Act to the Territory of Christmas Island, and s.13 contemplated the possibility of an overseas vessel (within the meaning of s.12) being in port in the Territory of Christmas Island immediately before the commencement of that provision.

In the present case, the relevant empowering provision, in 1981 being s.5(1A)(a) of the Migration Act (as inserted by s.3(2) of the 1980 Amendment Act) did not come into operation immediately upon its enactment, and was expressed to confer power to appoint a port in the Territory of Christmas Island, and, thus, was an enactment of the type contemplated by the then s.4(1)(a) of the Acts Interpretation Act.

By reason of s.4(2) of the Acts Interpretation Act, the Appointment took effect on the day on which s.3(2) of the 1980 Amendment Act came into operation. That is to say, the Appointment took effect on and from 23 January 1981, not 22 January 1981.

It is apparent that the Full Federal Court in DBB16 had not been referred to s.4 of the Acts Interpretation Act or Aban, and in any event their Honours do not state that the appointment of a port at Christmas Island was invalid. For the reasons already given, the Appointment was not invalid, as held in GGD18 v Minister for Home Affairs & Anor (No 3). GGD18 is not clearly wrong and so should be followed as a matter of comity. An appeal from GGD18 was dismissed, but the appellant abandoned the arguments put below.

(footnotes omitted)

97    Further, I note that the definition of the “migration zone” in s 5(1) of the Migration Act makes no reference to the place of registration of a ship on which a non-citizen is a passenger. On that basis, the allegation of detention of the appellant by the Australian authorities in the particular referred to at [85(c)] above has no reasonable prospect of being accepted as a basis for finding that COV18 “entered Australia” at its place of registration (said to be Canberra) when she boarded the HMAS Parramatta.

Ninth ground of the proposed amended notice of appeal

98    The proposed ninth ground is as follows:

Ground 9: The IAA failed to consider the real risk of harm faced by the appellant as a western female who is opposed to Islamic extremism, including wearing the Hijab and who is an atheist and an apostate under Sharia law, which is punishable by the death sentence in Iran

9(i)    With regard to ground (1) of the amended application for judicial review, the primary judge erred at [44] by finding that the “Authority’s reason, as summarised above, reflect a genuine intellectual engagement with the whole of the applicant’s claims and evidence and the making of adverse findings that were open for the reasons given by the Authority. There is no substance in the contention that the Authority failed to carry out its statutory duty as advanced in relation to ground 1. Ground 1 is in substance an invitation to the Court to engage an impermissible merits review.”

9(ii)    With regard to ground (3) of the amended application for judicial review, the primary judge erred at [52], The Authority’s reasons in terms of outcome cannot be said to lack an evident and intelligible justification given the reasons of the Authority as summarised above. The adverse outcome is not one to which no reasonable decision maker could come. There was no legal unreasonableness in the determination of the application for review by the Authority.

9(iii)    To the contrary, the IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the claims or an integer of those claims that the appellant faces a real risk of harm as a westernised female who is opposed to Islamic extremism, including wearing the Hijab, and who is an atheist and an apostate, which is punishable by the death sentence under Sharia law in Iran. The IAA therefore constructively failed to review the appellant’s claims.

99    I note that the first ground of the notice of appeal was the same as the ninth ground of the proposed amened notice of appeal save that, instead of cll 9(i)-(iii), the first ground included a paragraph numbered 1 in these terms:

The IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the claims or an integer of those claims that the appellant faces a real risk of harm as a westernised female who is opposed to Islamic extremism, including wearing the Hijab, and who is an atheist and an apostate, which is punishable by the death sentence under Sharia law in Iran. The IAA therefore constructively failed to review the appellant’s claims.

100    There were “Particulars” under the following headings:

(a)    The protection claims: This particular is in the same terms as the quoted material at [84(a)] above;

(b)    The appellant’s membership of a social group as a “failed asylum seeker from a western country”: This particular notes DR[6] which was as follows:

The applicant did not make any claims of fear of harm related to her membership of a particular social group – failed asylum seekers who have sought protection in a Western country. However, I consider this claim arises on the material before me and have given consideration to this claim.

(c)    The appellant’s claims to being an “agnostic” and the arrest for not wearing the hijab, at the entry interview, 4 March 2013: This particular is as follows:

d)    At [13], the IAA observed that “[a]t her arrival interview on 4 March 2013 the applicant claimed she was agnostic. In her written statement of claims lodged on 30 June 2016 the applicant also stated she is agnostic. She said that since her childhood she had been interested in knowing more about other religions and as she learnt more she gradually lost her faith and thought about Islam more critically.”

e)    In the “Irregular Maritime Arrival Entry Interview”, on 4 March 2013, at question 6, page 22 of the Court Book, the appellant was asked whether she was “ever arrested or detained by the police or security organization?” The appellant answered by ticking the box “yes” and stating “[f]or 24 hours I was detained by the Sepah Pasdran (see Part C, Q.1 for details) and once for not wearing the hijab correctly 4 years ago.”

(d)    The appellant’s claims to being an “atheist”, at the SHEV interview, 19 June 2017: This particular is as follows:

f)    At [14], the IAA observed that “[a]t her SHEV interview on 19 June 2017, the applicant stated she is now an atheist. She provided consistent evidence with that in her written application about questioning her university teachers about religion, her suspensions from classes, and being a non-practising Muslim. She stated that she had discussions with like-minded people in places like coffee shops and once or twice they had been arrested.”

g)    At [16], the IAA observed that “[a]t her SHEV interview the applicant said that since her arrival in Australia she has joined the Sydney Atheists group on Facebook and social media. She did not provide any supporting evidence of her participation in any social media discussions.”

h)    At [17], the IAA accepted that the appellant was a non-practising Muslim prior to her departure from Iran and at that time identified as an agnostic and now identifies as an atheist since being in Australia, despite not providing any evidence in this regard. The IAA found that the appellant has not developed a public profile as an atheist nor has had any desire to convert people to atheism.

i)    At [18], the IAA erred by finding that that appellant did not have an “anti-Islam or otherwise adverse religious profile prior to her departure from Iran”.

(e)    The DFAT Report 2016: This particular stated:

j)    At [19] the IAA cited and relied upon the “DFAT Country Information Report Iran April 2016” and observed that that the “Iranian interpretation of Sharia law provides that Shia Muslims are not permitted to renounce their religion or convert to another religion and if they do so they can be charged with apostasy2”. Further, the IAA observed that the crime of apostasy is not codified in Iran’s Penal Code but the Constitution permits judges to apply Sharia law. The IAA further observed that the “last time the death sentence was carried out for apostasy was in 1990” and the “last person charged with apostasy and sentence to death was in 2011” and that DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy.”

k)    At [20], the IAA observed that “DFAT considers it highly unlikely that the government would monitor religious observance by Iranians” and that “[p]erceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants.4”

(f)    The IAA’s findings under the refugee criterion: This particular stated:

l)    The IAA therefore erred by finding at [21] that “I am not satisfied that if the applicant were to continue to attend such informal meetings that these would be perceived by the Iranian authorities to be a threat to national security such that there would be a real chance that the applicant will suffer serious harm as a consequence of participating in such gatherings.”

m)    Further, the IAA erred by finding at [22] that “I am not satisfied the applicant faces a real chance of serious harm on return to Iran for reasons of her non-belief in Islam and/or disagreement with the way Islam is practiced in Iran and/or stated personal atheism.”

(g)    Jurisdictional Error: The appellant’s claims of persecution for not wearing the Hijab in Iran: This particular stated:

n)    At [23], the IAA observed that “[a]t her entry interview on 4 March 2013 the applicant stated… she had also been arrested by the police once about four years ago for not wearing her hijab correctly.”

o)    The IAA fell into jurisdictional error by failing to consider entirely the appellant’s claims that she face persecution in Iran for not wearing the hijab under the refugee criterion.

(h)    The IAA’s finding under the complementary criterion: This particular stated:

p)    The IAA fell into jurisdictional error at [52], by finding that “[b]ased on relevant country information I am satisfied that if the applicant is returned to Iran now or in the reasonably foreseeable future there is no real risk she will suffer significant harm for reasons of her personal belief as an atheist and/or failure to practice Islam.”

q)    Similarly, the IAA fell into jurisdictional error by failing to consider entirely the appellant’s claims that she face persecution in Iran for not wearing the hijab under the complementary criterion.

101    I note that the “Particulars” are the same for the first ground of the notice of appeal and the ninth ground of the proposed amended notice of appeal.

102    COV18’s written submissions said the following in relation to this ground:

Ground 9: The IAA failed to consider the real risk of harm faced by the appellant as a female opposed to the Hijab and an apostate, which is punishable by death in Iran

17.    With regard to ground (1) of the amended application for judicial review, the primary judge erred at [44] by finding that the “Authority’s reason, as summarised above, reflect a genuine intellectual engagement with the whole of the appellant’s claims and evidence and the making of adverse findings that were open for the reasons given by the Authority. To the contrary, the IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the claims or an integer of those claims that the appellant faces a real risk of harm as a westernised female who is opposed to Islamic extremism, including wearing the Hijab, and who is an atheist and an apostate, which is punishable by the death sentence under Sharia law in Iran. The IAA therefore constructively failed to review the appellant’s claims. For the particulars at ground (9) of the amended notice of appeal.

Case law - NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

18.    In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 73 ALD 321; [2003] HCA 26, Gummow and Callinan JJ., observed at [24], with Hayne J., agreeing at [95];

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal.

103    In oral submissions, Mr Williams submitted that:

(a)    The claim that COV18 faced risk as a “westernised female” would be better framed as being someone who had adopted liberal, democratic values and was opposed to Islamic extremism and Sharia law, including wearing the hijab. He made submissions concerning what women are forced to do under Sharia law;

(b)    The hijab is an oppressive symbol of the dogmas that sit beneath it that women should not have employment or education. (I note that the evidence is that COV18 graduated from university.) The problem with the IAA’s decision is that it did not ask “what if she doesn’t want to wear the hijab?”;

(c)    DR[6] is an example of something which arises as an “integer of the material”. Similarly, the claim of being agnostic and not wearing the hijab arise out of DR[13] where the IAA quoted from the entry interview in relation to COV18’s loss of religious faith out of her curiosity about religion and her arrest for wearing the hijab incorrectly;

(d)    At DR[14], the IAA stated that COV18 said that she was now an atheist at her SHEV interview. Mr Williams pointed out that her evidence concerning her suspension from classes and having discussions with like-minded people in coffee shops was evidence consistent with that. At DR[16], the IAA noted that she joined a Sydney Atheist group and social media since coming to Australia, though she did not provide evidence of participating in social media discussions;

(e)    At DR[17], the IAA accepted that COV18 was a non-practising Muslim and identified as agnostic at the time she left Iran and now identifies as an atheist despite not providing evidence in that regard. It also found that COV18 had not developed a public profile as an atheist nor does she have a desire to convert others to atheism. This raises the problem identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395/2002) of what happens if COV18 wants to become vocal or does not wish to follow dogmas?;

(f)    The IAA relied on DFAT’s 2016 report at DR[19]-[20], noting that under Sharia law, Shia Muslims are not permitted to renounce their religion or convert to another religion and if they do, they can be charged with apostasy, which carries the death sentence, yet DFAT considered it highly unlikely that the Iranian government would monitor religious observance and that an apostate is only likely to come to the government’s attention through public manifestations, like proselytizing, attending house churches or from informants. However, there was a “real break” in the IAA’s reasoning, having regard to its finding at DR[20] that it was not satisfied that if COV18 continued to attend informal meetings, like at the coffee shop, she would not be perceived as a threat to national security and therefore there was no real chance that she would suffer serious harm from that activity;

(g)    By such reasoning, the IAA expected COV18 to go back to Iran, put on the hijab, submit to religious oppression and be quiet. That is wrong in principle having regard to the decision in Appellant S395/2002;

(h)    Having regard to DR[23], where the IAA observed that at the entry interview, COV18 stated that she had been arrested by the police about four years ago for having worn the hijab incorrectly, the IAA fell into jurisdictional error under the refugee criterion by failing to recognise that she claimed that she faced persecution in Iran for not wearing the hijab; and

(i)    With regard to the complementary protection criterion, the IAA fell into jurisdictional error by its finding at DR[52].

104    I will refer to the Minister’s submissions as necessary in the consideration.

Consideration and disposition

105    As submitted by the Minister, the essence of this ground is that the IAA failed to consider an integer of COV18’s claim, being that she is a westernised female who opposes Islamic extremism and wearing a hijab. Accordingly, notwithstanding the inclusion of cll 9(i) and (ii), which refer to paragraphs of the Reasons which related to different grounds, this ground (and the first ground of the notice of appeal) are new grounds which require leave for them to be raised for the first time on appeal.

106    I note the following matters.

107    First, in her entry interview on 4 March 2013, COV18 gave a detailed statement concerning her claim to fear harm as a result of searching for information concerning her father’s disappearance at the time of the first Gulf War. She said that that was her “main reason” for leaving Iran. She made no claims concerning the need to dress in a hijab in Iran. That was so despite the fact that she responded to a question about whether she had been arrested or detained by the police or security organisations in Iran by saying: “For 24 hours I was detained by the Sepah Psdaran … and once for not wearing the hijab correctly 4 years ago”. She made no claims to be a “westernised female who opposes Islamic extremism”.

108    Second, COV18 made a statutory declaration on 11 June 2016. It was attached to her application for a SHEV. She said that her claim was “mainly about my ideas and beliefs, however it relates to my search about my missing father”. The statutory declaration contains no mention of fear of harm as a result of being arrested for wearing her hijab incorrectly or as a “westernised female” who opposes Islamic extremism and wearing hijab. She did expand her claims to include:

(a)    Her interest in knowing more about religions from her childhood;

(b)    Her treatment at university as a result of her questioning of lecturers concerning religion;

(c)    The theft of her laptop containing “forbidden contents”;

(d)    The pursuit of a friend’s car and mistreatment at the hands of the pursuers outside a police station without the police intervening;

(e)    Her working for a candidate in the 2009-2010 presidential election and meetings with “likeminded” people;

(f)    The incident at the coffee shop and subsequent detention and release upon payment of a bribe;

(g)    The throwing of acid on her family’s apartment doorstop and bell and black graffiti being applied to the outside walls;

(h)    Her fear of return to Iran because “I know about how Iranian government treats people who return from other countries to Iran”; and

(i)    Her fear of return to Iran due to her “imputed political opinion as well as [her] beliefs and ideology”. She claimed to have been verbally accused of setting up propaganda against the state, promoting anti-government sentiments and being an infidel. She claimed that renouncing Islam was not only a sin, but also a crime punishable by the death penalty.

109    Third, the claims in the statutory declaration were the subject of the interview with the delegate, together with the further claims made to the delegate that COV18 was an atheist, she was involved socially with Sydney Atheists, she did not know how her father was involved in the war, and when she was apprehended by Iranian authorities in October 2012, she was not charged with a crime. There is no mention in the delegate’s decision record of COV18’s arrest because of her failure to wear the hijab correctly. There is no mention of her having fear of harm because she is a “westernised female” who opposes Islamic extremism and wearing a hijab.

110    Fourth, COV18’s migration agent made submissions to the IAA on 26 August 2017. While there were submissions concerning the fact that the delegate accepted a number of COV18’s claims, no mention was made of the arrest because of COV18’s failure to wear the hijab correctly or that she had a fear of harm as a “westernised female” who opposes Islamic extremism and wearing a hijab.

111    Fifth, no express claims were made to the IAA that COV18 was a “westernised female” who opposes Islamic extremism and wearing a hijab. At DR[23], the IAA summarised the content of the entry interview, including COV18’s response to the question of whether she had ever been arrested or detained: see [14] above. The bare statement of that information is repeated in DR[35]: see [19] above. There is nothing in the IAA’s decision record which would indicate that COV18 made any claim based on her arrest for wearing her hijab incorrectly.

112    As submitted by the Minister, a judgment that a decision-maker has failed to consider a claim not expressly advanced must not be made lightly. Such a claim must emerge clearly from the materials before the decision maker: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [68] (Black CJ, French and Selway JJ).

113    What emerges clearly from the material is that COV18 had curiosity about religion which led her to lose her Shia Muslim faith and move from agnosticism to atheism, a claim which the IAA accepted. Her claim appears to be that she has been imputed with anti-government sentiment and to be at risk of serious harm as an atheist and therefore an apostate. I do not accept that COV18 made a claim, in the sense of a substantial and clearly articulated argument reliant on established facts, to fear serious or significant harm arising out of her arrest for not wearing a hijab correctly four years before she left Iran. She made no claims with respect to whether or not or how she would wish to wear a hijab in the future if she were to be returned to Iran. She did not make claims to be a “westernised female” or to “oppose Islamic extremism”. It is notable that DR[17] concludes with the words “The applicant has not claimed that she has any desire to “convert” other people to atheism or been engaged in any activities to promote atheism either in Australia or in Iran”. In those circumstances, an argument based on Appellant S395/2002 has insufficient merit for it to be raised for the first time on appeal.

114    These aspects of the proposed ninth ground are new and are integral to it having regard to the ground as expressed in bold and cl 9(iii) and in the particulars such as those under the headings “Jurisdictional Error: The appellant’s claims of persecution for not wearing the Hijab in Iran” and “The IAA’s finding under the complementary criterion”. In my view, those aspects have no prospects of success as no claims of the kind were made. The inclusion of cll 9(i) and (ii) (which relate to the FCCA Judge’s findings in relation to differently expressed grounds in the FCCA proceeding in which no reference was made to the new aspects of the proposed ninth ground) does not derogate from that view. Last, in my view, based on the claims made by COV18 and in light of the IAA’s findings of fact and the country information on which it was entitled to rely, it was open to the IAA to draw the conclusions that it did at DR[21]-[22] and [52].

115    No adequate explanation has been given for why the new aspects were not raised in the FCCA proceedings. I will refuse leave to raise the proposed ninth ground. Further, there is no utility in permitting amendment to the first ground in the notice of appeal if it has no reasonable prospect of success.

116    For the same reasons, leave to rely on the first ground of the notice of appeal will also be refused.

Tenth ground of the proposed amended notice of appeal

117    The proposed tenth ground is as follows:

Ground 10: The decision by the IAA was affected by an absence of a jurisdictional fact regarding the punishment of apostasy by the death sentence in Iran

10(i)    With regard to ground (2) of the amended application for judicial review, the primary judge erred at [47] by finding that the “Authority correctly identified the relevant law and on the face of the Authority’s reasons correctly applied the relevant law. Further, the Authority correctly identified the country information, and it was open to the Authority to take into account that country information. The Court does accept the submission that the Authority failed to apply the correct real chance test in relation to the Refugee Convention.

10(ii)    To the contrary, the decision by the IAA relied on outdated and incorrect information from [19]-[20] in the form of the “DFAT Country Information Report Iran April 2016”, which observed “last time the death sentence was carried out for apostasy was in 1990” and the “last person charged with apostasy and sentence to death was in 2011” and that DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy.” The most recent country information in the form of the “DFAT Country Information Report Iran June 2018, reported at page 25, [3.44] that in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy after he made social media posts considered critical of Islam and the Koran while on military service in October 2015” The finding by the IAA based on the DFAT Report 2016, were outdated and incorrect, giving rise to an absence of jurisdictional fact and a “practical” injustice. The IAA therefore constructively failed to review the appellant’s protection claims under section 473CC of the Migration Act 1958 (Cth), or constructively failed to satisfy the implied condition of procedural fairness.

118    The proposed tenth ground differs from the second ground of the notice of appeal by the insertion of cl 10(i). It also differs by the insertion of the phrase “To the contrary,” instead of the words “The appellant seeks leave to articulate a new ground which was not before the Court below and to rely on new evidence which was not before the IAA. The appellant contends that”.

119    The “Particulars” to the ground are under the following headings:

(a)    The DFAT Report 2016: Under this heading, the particular refers to DR[19]-[20] which are summarised at [12] above;

(b)    The DFAT Report 2018: Under this heading, the particular stated (as written):

c)    The observation by the IAA at [19] that the “last time the death sentence was carried out for apostasy was in 1990” and the “last person charged with apostasy and sentence to death was in 2011” was factually incorrect. Similarly, the observation by the IAA at [20] that and that DFAT considers it highly unlikely that the government would monitor religious observance by Iranians” and that “[p]erceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants.4” is also factually incorrect.

d)    When making those findings of fact, the IAA did not have the benefit of the most recent report by “DFAT Country Information Report Iran”, June 2018, at page 25, [3.44] that in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy after he made social media posts considered critical of Islam and the Koran while on military service in October 2015.”

3.44    Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.

(c)    The IAA’s findings under the refugee criterion: Under this heading, the particular asserted that the IAA’s findings at DR[21]-[22] were in error: see [13] above; and

(d)    The IAA’s finding under the complementary criterion: Under this heading, the particular states that:

g)    The IAA fell into jurisdictional error at [52] that “[b]ased on relevant country information I am satisfied that if the applicant is returned to Iran now or in the reasonably foreseeable future there is no real risk she will suffer significant harm for reasons of her personal belief as an atheist and/or failure to practice Islam.”

120    The particulars are the same as those for the second ground of the notice of appeal.

121    COV18’s written submissions dated 1 September 2021 repeated cll 10(i) and (ii) of the proposed tenth ground at [19]. At [20]-[21], the submissions were as follows:

Absence of jurisdictional fact causing a “practical injustice” and the implied condition of procedural fairness

20.    Evidence beyond that which was before the decision-maker may be relevant and admissible in circumstances because of the absence of a jurisdictional fact, causing an excess of jurisdiction, McCormack at [38]–[40]; Attorney-General (NT) at 539–40; resulting in a breach of procedural fairness: Percerep v Minister for Immigration (1998) 86 FCR 483 at 495 per Weinberg J; McCormack at [38]; Hand at 320. The approach to the determination of the existence and consequence “of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation by Gleeson CJ., in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] that the concern of procedural fairness is to “avoid practical injustice.” In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, per Gageler and Gordon JJ., from [57] to [60], in particular [60] where their Honours observed:

[60]    Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

21.    More recently, the “practical injustice” test was confirmed by the Full Court in BEG15 v Minister for Immigration and Border Protection & Anor [2017] FCAFC 198, per Kenny, Tracey and Griffiths JJ., at [30], where leave was granted for the Minister to rely on new evidence in the form of an affidavit of the solicitor for the Minister regarding the non-disclosure of information pursuant to section 438(1)(a) of the Migration Act 1958 (Cth).

Consideration and disposition

122    The proposed tenth ground and the second ground of the notice of appeal assert that the IAA’s reliance on DFAT’s 2016 report relating to conditions in Iran rather than DFAT’s June 2018 report (which was issued after the IAA made its decision in May 2018) means that the IAA’s decision was “affected by an absence of a jurisdictional fact”. The “jurisdictional fact” was said to relate to when the last person was executed in Iran for apostasy.

123    In my view, both the proposed tenth ground and the second ground of the notice of appeal are new grounds that require leave to be brought for the first time on appeal. That is so, notwithstanding the reference in cl 10(i) to the FCCA Judge’s findings at J[47] which related to the second ground of the amended application for judicial review considered by the FCCA Judge. That ground raised an entirely different issue to the proposed tenth ground and has no relevance to it.

124    I accept that the Minister’s submission that this ground is fundamentally misconceived. The content of DFAT’s June 2018 report relating to conditions in Iran is not a jurisdictional fact. In the case of a decision to be made under Part 7AA, for example, a jurisdictional fact would be whether COV18 was an unauthorised maritime arrival who entered Australia on or after 13 August 2012 but before 1 January 2014, and who has not been taken to a regional processing country. That is because it is a precondition to the IAA’s exercise of power whether to affirm the delegate’s decision or remit the matter back for reconsideration with directions. DFAT’s June 2018 is evidence which did not exist at the time the IAA made its decision in May 2018. The tenth ground of the proposed amended notice of appeal and the second ground of the notice of appeal have no prospect of success. Leave to rely on those grounds should be refused because they lack merit and the other factors which also weigh against the grant of leave. In those circumstances, leave should also be refused to amend the notice of appeal to include the proposed tenth ground.

Eleventh ground of the proposed amended notice of appeal

125    The proposed eleventh ground is a follows (as written):

Ground 11: The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by failing to consider whether the appellant will be forced to modify her behaviour so as to avoid a persecution in Iran

11.    The appellant seeks leave to articulate a new ground which was not before the primary judge that the IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) at [20], by failing to consider whether the appellant will be forced to modify her (a) religious beliefs or (b) political opinion or (c) membership of a social group as a westernised female, opposed to Islamic extremism, including wearing the hijab, and as an atheist and apostate, so as to avoid persecution in Iran.

126    This varies from the third ground of the notice of appeal by its acknowledgment that it is a new ground that requires leave.

127    The “Particulars” to the ground are under the following headings:

(a)    The IAA’s findings under the refugee criterion: This particular takes issue with the IAA’s findings at DR[21]-[22] as follows:

a)    The IAA fell into jurisdictional error at [21] by failing to consider entirely whether the appellant will be forced to wear the hijab if returned to Iran by finding at [21] that “I am not satisfied that if the applicant were to continue to attend such informal meetings that these would be perceived by the Iranian authorities to be a threat to national security such that there would be a real chance that the applicant will suffer serious harm as a consequence of participating in such gatherings.”

b)    Similarly, the IAA fell into jurisdictional error by failing to consider entirely whether the appellant will be forced to wear the hijab if returned to Iran by finding at [22] that “I am not satisfied the applicant faces a real chance of serious harm on return to Iran for reasons of her non-belief in Islam and/or disagreement with the way Islam is practiced in Iran and/or stated personal atheism.”

(b)    The IAA’s finding under the complementary criterion: The particular states that:

c)    The IAA also fell into jurisdictional error at [52], by failing to consider entirely whether the appellant will be forced to wear the hijab if returned to Iran by finding that “[b]ased on relevant country information I am satisfied that if the applicant is returned to Iran now or in the reasonably foreseeable future there is no real risk she will suffer significant harm for reasons of her personal belief as an atheist and/or failure to practice Islam.”

128    COV18’s written submissions at [22] repeats [11] which appears under the bold heading in the proposed eleventh ground. The submissions were then as follows:

Case law - Appellant 395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112

81.    In a similar manner to Appellant 395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112, the applicant contends the IAA fell into jurisdictional error by failing to identify and evaluate the claims of the applicant against the correct social group, as a Christian convert and apostate, Appellant 395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112, per McHugh, Gummow, Kirby and Hayne JJ at [55], [60], [90]. In so far as decision of the IAA found that the applicants are required, or can be expected to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed, Appellant 395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112, per McHugh and Kirby JJ at [50].

CTY15 v Minister for Immigration and Border Protection [2019] FCA 197

82.    In CTY15 v Minister for Immigration and Border Protection [2019] FCA 197, Perry J., set aside the orders made by the Federal Circuit Court of Australia, finding at [52], that “… to the extent that the Tribunal considered that the wife could avoid persecution by complying with the dress code or not going out as the wife claimed that she had done in the past, the Tribunal’s reasoning runs counter to the principles in Appellant S395/2002.”

129    Mr Williams’ oral submissions were to a similar effect to those made in relation to the proposed ground nine. Counsel:

(a)    Submitted that the IAA failed to perform the task required by s 5J(3)(c)(i) because it did not consider whether COV18 will be forced to modify her religious beliefs, her political opinion and it did not identify and evaluate COV18’s claims against the correct social group: that is, an apostate who had converted to liberal democratic values and a female who no longer wished to ascribe to the dogmas of Islamic extremism; and

(b)    Noted what was said in Appellant S395/2002 at [50] and submitted that COV18’s case is an “identical argument” to that considered in CTY15 v Minister for Immigration and Border Protection [2019] FCA 197 (CTY15).

Consideration and disposition

130    Section 5J(3)(c)(i) of the Migration Act provides as follows:

5J Meaning of well-founded fear of persecution

…

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

…

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

…

131    Leave for COV18 to rely on the proposed eleventh ground and the third ground of the notice of appeal will be refused because the grounds lack merit and having regard to the factors that weigh against the grant of leave. Leave to amend the notice of appeal in this respect will also be refused as such leave would be futile.

132    As the Minister submitted, there is nothing in the IAA’s decision record which suggests it relied on s 5J(3)(c)(i) of the Migration Act and there is no finding that COV18 could modify her behaviour to avoid a real chance of persecution. The IAA’s findings about the likelihood of persecution were based on COV18 continuing to behave as she had in the past in Iran. It did not seek to impose on COV18 a requirement that she act discreetly or modify her behaviour for any of the reasons suggested by the ground: see DR[17]-[18], [21]-[22] and [23]-[41]. This is consistent with the reasoning of McHugh and Kirby JJ in Appellant S395/2002 at [49] where they said:

… In WABR, the appellant, an Iranian, alleged that he was a homosexual and claimed that he feared persecution because homosexual conduct was illegal in Iran and that penalties ranged from death to flogging to imprisonment. Thus, the issues were whether there was a real chance of the appellant being prosecuted for homosexuality and, if so, whether the prosecution and any potential penalty were so inappropriately adapted to achieving a legitimate object of Iranian society as to amount to persecution. The reasonableness of the appellant’s conduct was not relevant to either issue. In determining whether the appellant faced a real chance of prosecution, the Tribunal was entitled to consider not only the prosecuting policies of the Iranian authorities, but also the likelihood that inadvertently or deliberately the appellant might attract their attention. But the reasonableness of his conduct did not bear on the issue.

133    More fundamentally, as noted by Perry J in CTY15 at [5], this issue turns on a proper interpretation of the appellant’s claims. In CTY15, there was evidence on the basis of which Perry J found that a claim did clearly arise that CTY15 was a member of a social group, being women “who do not wish to abide by Islamic extremism including the dress code”. The evidence included that a fight broke out between CTY15’s husband and two men in a public place where CTY15 went to celebrate her son’s birthday wearing tight clothing and make up, having washed and dried her hair for the occasion and having worn her hijab loosely, all contrary to the Iranian dress code. In contrast, I have found, at [113] above that claims of the kind asserted in the proposed ninth ground and the first ground of the notice of appeal do not arise clearly on the materials before the IAA. There is certainly no evidence that COV18 adopted “liberal democratic values”. The fact that COV18 was arrested once for not wearing her hijab correctly is not, by itself, evidence that she had any objections to the dress code in Iran or that she regarded laws applicable in Iran as “Islamic extremism”.

Twelfth ground of the proposed amended notice of appeal

134    The proposed twelfth ground is as follows (as written):

Ground 12: The IAA erred by failing to distinguish section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion

12.    The appellate seeks leave to rely on a new ground which was not before the primary judge that the decision by the IAA was affected by jurisdictional error as the IAA failed to consider the appellant’s claims of significant harm as a westernised female, opposed to Islamic extremism, including wearing the Hijab and as an atheist and apostate under the complementary criterion from [52] to [56] of the decision record. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by conflating the considerations regarding the appellant’s claims under the refugee criterion at [44] of the decision record, with the considerations under the complementary criterion at [55] of the decision record.

135    This ground varies from the fourth ground of the notice of appeal in its acknowledgment that the ground is new and requires leave.

136    The “Particulars” of the ground are under the following headings:

(a)    The IAA’s findings under the refugee criterion: This particular takes issue with the IAA’s findings at DR[21]-[22] in the same way as under the particular with the same heading for the tenth ground of the proposed amended notice of appeal;

(b)    Cumulative consideration of the applicant’s claims: This particular is as follows (as written):

At [44], the IAA erred by failing to

44.    I am satisfied the applicant is currently an atheist and does not practice Islam. I accept that she has joined the Sydney Atheists, however, I am not satisfied that she has engaged in social media forums and discussions in which she is identified on social media. I am satisfied that the applicant was agnostic prior to her departure from Iran and that she was suspended from her course at University on two occasions for expressing her doubts and asking questions about various issues related to the practice and doctrine of Islam in her University classes in the years 2003-2008. I am satisfied the applicant participated in informal discussions with other students and young people in locations such as coffee shops where they discussed religious and political issues. I do not accept the applicant’s evidence that roughly three months before her departure she and her friends were arrested when participating in these discussions in a coffee shop and that she was detained 3 or 4 days and released after a bribe was paid. I do not accept that when her laptop was stolen the had anti-Islamic or banned material on it which may have come to the notice of the authorities. I am not satisfied that the applicant suffered any serious harm as a consequence of her religious beliefs or failure to practice Islam prior to her departure. There is no information before me to suggest that the applicant has engaged in any conduct in Australia that would attract the adverse attention of the authorities in Iran. Based on relevant country information discussed above, I am not satisfied there is any real chance the applicant will suffer serious harm, having regard to the extensive examples of serious harm in s.5J(5) of the Act, for reasons of her religious opinions, beliefs and/or failure to practice Islam if she returns to Iran now or in the reasonably foreseeable future.

(c)    The IAA’s finding under the complementary criterion: This particular is in the same form as that under the same heading in the proposed tenth ground; and

(d)    Jurisdictional error: This particular is as follows (as written):

e)    It was not enough for the IAA to simply dismiss the appellant’s claims for protection as a westernized female, opposed to Islamic extremism, including wearing the hojab and as an atheist and an apostate under the complementary criterion by applying the IAA’s findings under the refugee criterion. The IAA failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complementary criterion. The IAA erred by failing to examine entirely the appellant’s claims of apostasy under the complementary criterion and by conflating the findings regarding the applicant’s claims regarding apostasy under the refugee criterion at [20] with the applicant’s claims of apostasy under the complementary criterion at [39] of the decision record. As a consequence, the IAA failed to constructively review the applicant’s claim of apostasy under the complementary criterion, giving rise to reviewable error.

137    COV18’s written submissions dated 1 September 2021 repeated [12] under the bolded ground and then contained the following:

Case law – DVG16 v Minister For Immigration & Anor [2018] FCCA 1461

83.    In DVG16 v Minister For Immigration & Anor [2018] FCCA 1461, Judge Wilson observed at [54] that when making the apostasy claim the applicant was entitled to expect that the IAA would squarely address it. The delegate identified the claim. The IAA was required to deal with it. The IAA failed to do so. In adopting that course the IAA fell into jurisdictional error. It failed to consider a claim properly made.

[54] In my view, Dr McBeth’s characterisation of the IAA’s treatment of this issue was correct. I reject the minister’s contentions on point. The delegate identified the apostasy claim. That claim needed to be considered. On any of the authorities set out in paragraph 53 above, that claim called for consideration. It was not enough for the IAA to obliquely address the matter under its broader and more nebulous considerations of the applicant’s conversion. In making the apostasy claim the applicant was asserting that he feared execution. That was a very serious assertion. In asserting it the applicant was squarely invoking Australia’s protection obligations. In making that claim the applicant was entitled to expect that the IAA would squarely address it. The delegate identified the claim. The IAA was required to deal with it. The IAA failed to do so. In adopting that course the IAA fell into jurisdictional error. It failed to consider a claim properly made.

138    In oral submissions, Mr Williams submitted that the scope and purpose of the refugee and complementary criteria are different, and there must be much broader engagement with the principles under the complementary criterion.

Consideration and disposition

139    Section 5J relevantly (having regard to the reference to s 5J(6) in the ground) provides:

5J Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

…

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

140    I note the following from the IAA’s reasons:

(a)    At DR[49]-[51], the IAA set out the complementary protection criterion which is found in s 36(2)(aa) of the Migration Act, the meaning of “significant harm” in s 36(2A) and noted that the “real chance” and “real risk” tests involve the same standard, relying on the Full Court’s decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB); and

(b)    It then set out its reasoning at DR[52]-[56] before making its finding that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned to a receiving country, there was a real risk that COV18 would suffer significant harm and therefore she did not meet s 36(2)(aa).

141    At DR[52]-[56], the IAA said:

52.    As discussed above I am satisfied the applicant is currently an atheist and does not practice Islam. I am not satisfied that she has any public profile as such in Australia on social media or in any other forum. I am satisfied the applicant was an agnostic at the time of her departure from Iran and engaged in informal gatherings and discussions with other young people about religious beliefs and practices in Iran. I do not accept the applicant’s claims that about three months prior to her departure she and her friends were arrested and she was detained for 3 or 4 days and only released without charge after the payment of a bribe. I am satisfied the applicant did not suffer any significant harm, having regard to the definition of significant harm in s.36(2A) above, as a consequence of her religious beliefs, opinions or failure to practice Islam. Based on relevant country information I am satisfied that if the applicant is returned to Iran now or in the reasonably foreseeable future there is no real risk she will suffer significant harm for reasons of her personal belief as an atheist and/or failure to practice Islam.

53.    I am satisfied the applicant did not have an adverse political profile with the Iranian authorities prior to her departure from Iran, notwithstanding her involvement in the Mousavi campaign during the 2009 elections, her participation in informal discussions about political and religious issues and her initial persistence in her search for information about her father. I am satisfied that the applicant has not engaged in any political activities in Australia which may attract the adverse attention of authorities in Iran. I am satisfied there is no real risk the applicant will suffer significant harm for reasons of her actual or imputed political profile.

54.    I am satisfied that the applicant engaged in a search for information about her father who was missing in action in 1985 in the Iraq/Iran war and that the authorities discouraged from doing so. I am satisfied that she felt intimidated and threatened by the authorities and consequently ceased her search some months before her departure in January 2013. However, I am satisfied that the threats, intimidation and harassment she experienced did not amount to serious harm as defined in s.36(2A) above. The applicant has not claimed that she will persist with her search for information if she returns to Iran. She stated the reason for her search was largely curiosity as she (understandably) wishes to know more about what happened to him and she had no political motivation for doing so. I am therefore satisfied that there is no real risk the applicant will suffer significant harm for reasons related to her past search for information if she returns to Iran now or in the reasonably foreseeable future.

55.    I am satisfied that the applicant departed Iran legally on a valid and genuine passport and she was of no adverse interest to the Iranian authorities or any other person prior to her departure in January 2013. I am satisfied she has not engaged in any activities in Australia which may attract the adverse attention of the Iranian government or religious authorities. I accept that the applicant more than likely will be questioned on her return to Iran whether she returns on a valid passport or a temporary travel document. I am satisfied that this questioning does not amount to significant harm as defined in s.36(2A) of the Act. I am satisfied it is not a criminal offence in Iran to ask for asylum in another country and that there is no real risk she will be prosecuted for claiming asylum in Australia. There is no information before me to suggest that Iranian citizens who have sought asylum in Western countries are at risk of significant harm from members of the community or Iranian authorities unless they were of adverse interest to authorities or the community prior to their departure or have engaged in activities since their departure that would attract the adverse attention of the authorities. Based on the relevant country information discussed above, I am satisfied that there is no real risk that the applicant will suffer significant harm (having regard to the definition of significant harm in s.36(2A) of the Act) from the Iranian authorities or any other person if she is returned to Iran now or in the reasonably foreseeable future, as a consequence of having sought asylum in Australia.

56.    Considering the treatment I have accepted the applicant will experience as a whole, I am not satisfied that it cumulatively amounts to significant harm. Nor am I satisfied that there is a real risk that the applicant will suffer significant harm based on the cumulative effect of her circumstances and profile.

142    Leave for COV18 to rely on the proposed twelfth ground and the fourth ground of the notice of appeal will be refused because the grounds lack merit and having regard to the factors that weigh against the grant of leave. Leave to amend the notice of appeal in this respect will also be refused as such leave would be futile.

143    The proposed twelfth ground and the fourth ground of the notice of appeal lack merit because:

(a)    The written and oral submissions did not meaningfully advance the proposed grounds;

(b)    For the reasons given in relation to the proposed ninth ground, COV18 did not make a claim that she was a westernised female, opposed to Islamic extremism, including wearing the hijab and therefore there should be no expectation that it would be considered in the relation to satisfaction of the complementary protection criterion. Further, at DR[52]-[56], the IAA stepped through COV18’s claims and its findings of fact in making the assessment required under s 36(2)(aa) and related provisions of the Migration Act. It did not simply rely on its assessment under the refugee criterion;

(c)    The IAA did not employ s 5J(6) of the Migration Act to disregard COV18’s conduct in Australia: see DR[17]; and

(d)    There is no error in the IAA making findings of fact in the context of an application in relation to satisfaction of the criterion in s 36(2)(a) of the Migration Act and then applying the complementary protection criterion in s 36(2)(aa) to the facts as found: see, for example, SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32]-[35] (Robertson, Griffiths and Perry JJ); SZSXE v Minister for Immigration and Border Protection [2014] FCA 867 at [56] (Wigney J); SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] (Robertson J). As noted by the IAA, the test for “real risk” and “real chance” is the same: see SZQRB at [242], [246]-[247] (Lander and Gordon JJ). Further, the decision in DVG16 v Minister for Immigration and Border Protection [2018] FCCA 1461 turns on the proper construction of the visa applicant’s claims and the IAA’s treatment of those claims.

Conclusion

144    Leave should be refused to rely on the new grounds in the notice of appeal and to COV18 filing the proposed amended notice of appeal and relying on its grounds. The appeal should be dismissed with costs.

Associate:

Dated:    26 July 2023