Federal Court of Australia

DOE18 v Minister for Immigration and Multicultural Affairs [2025] FCA 299

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

1    This is an appeal from a decision of a judge of the then Federal Circuit Court of Australia (FCC) (now the Federal Circuit and Family Court of Australia (Div 2)) (the primary judge) dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a delegate of the Minister for Immigration not to grant the appellant a Safe Haven Enterprise Visa (SHEV) – DOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3208 (PJ). The decision of the primary judge was delivered on 27 November 2020. The appellant lodged his initial notice of appeal on 3 December 2020. It is regrettable that the appeal has taken more than four years to come on for hearing. No explanation for the delay emerged during the hearing.

2    It is uncontroversial that the appellant is a stateless person of Faili Kurd ethnicity who was born in Iraq. Together with his family, he was deported from Iraq as a child and lived as a stateless person in Iran. He arrived in Australia as an unauthorised maritime arrival on 31 October 2012 and applied for a SHEV on 4 November 2015.

3    On 21 August 2017, a delegate of the Minister decided not to grant the appellant a SHEV. On 28 August 2017, the appellant’s matter was referred to the Authority, which affirmed the decision of the delegate on 12 June 2018. Subsequently, the appellant sought judicial review of the Authority’s decision in the FCC, where his application was dismissed on 15 November 2018 (DOE18 v Minister for Home Affairs [2018] FCCA 3317). An appeal to this Court was allowed and, on 30 September 2019, the Authority’s decision was quashed and the matter was remitted to the Authority, differently constituted, for reconsideration according to law (DOE18 v Minister for Home Affairs [2019] FCA 1596).

4    On 13 December 2019, the Authority issued a further decision in which it once again affirmed the decision of the delegate not to grant the appellant a SHEV. Nevertheless, the Authority:

(a)    accepted the appellant’s identity and that he is a stateless Faili Kurd and would be identified as such if he returned to Iran (at [28]);

(b)    accepted that the appellant’s Refugee Registration Card (Amayesh) has expired and that, should he return to Iran, the authorities will consider him to be an irregular migrant, or an unregistered or undocumented refugee (at [27]);

(c)    considered overall that the appellant had provided a credible account of his experiences in Iran (at [34]);

(d)    accepted that as a Faili Kurd the appellant does not generally have access to citizenship and other rights available to Iranian citizens (at [42]);

(e)    accepted that should the appellant return to Iran as an undocumented Faili Kurd he would be subject to various restrictions, including that he would be unable to buy a house, car or mobile phone, establish a utilities account or enter into a legally recognised lease (at [42]); and

(f)    accepted that as an unregistered Faili Kurd who left Iran, the appellant will not be allowed to re-enter the country (at [45]).

5    The appellant sought judicial review of the Authority’s further decision in the FCC where, on 27 November 2020, the application was dismissed. It is that decision which is the subject of this appeal.

The hearing before the primary judge

6    Before the primary judge, the appellant, who was unrepresented, raised two grounds of review (PJ[39]). The first ground contended that the Authority had failed to consider “significant evidence given by the appellant” as to the risk of his being detained, harmed or deported to Iraq if he were caught working illegally in Iran and so “did not engage in an active and intelligent reasoning process as to why it think[s] that the applicant would [not] be detained or harmed in Iran”. The second ground contended that the Authority had “failed to properly apply the real chance of persecution test”.

7    As to ground one, the primary judge found (PJ[40]) that it was apparent from the Authority’s Reasons, particularly at [39], that it had an active intellectual engagement with the appellant’s claims in relation to being a stateless Faili Kurd and that there “was no significant evidence that the Authority failed to consider”. His Honour found that no jurisdictional error had been disclosed by ground one. In his written submissions, the appellant had alleged a failure by the Authority to comply with the two-step requirement identified by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494. However, his Honour found (PJ[42]) that on a fair reading of the Authority’s Reasons, it had first considered the criteria under s 473DD(b) of the Migration Act 1958 (Cth) and found that the appellant failed to meet those criteria, which had the result that s 473DD(a) was not met. Accordingly, the Authority’s reasoning process accorded with what the High Court articulated in AUS17 at [10]-[12] as being required when evaluating new information pursuant to s 473DD.

8    As to ground two, the primary judge found (PJ[41]) that there was no basis to find that the Authority failed to correctly apply the “real chance test” under the 1951 Refugee Convention and so jurisdictional error was not established by that ground.

The appeal before this Court

9    The amended notice of appeal filed 20 December 2024 identifies seven new grounds of appeal, none of which were raised before the primary judge, although in oral submissions Counsel for the appellant acknowledged that proposed grounds 3 – 6 may be considered as particulars of proposed grounds 1 and 2. Leave is required to agitate the new grounds of appeal. The Minister opposes the granting of leave, but submits that in any event, the proposed grounds are without merit.

10    There was no dispute as to the relevant principles applicable to seeking leave to raise new grounds of appeal. They were stated by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588, 598-9 at [46]-[48], and have been applied more recently in DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344, 351-2 at [23]-[24]. The appellant contended that five matters demonstrate that it is “expedient in the interests of justice” (using the touchstone applied by Mason J in O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319, cited by the Full Court in VUAX at [46]) that leave be granted.

11    First, the appellant submitted that he has a sound explanation for the new points not having been raised at first instance, namely that he was self-represented before the FCC and when he filed the notice of appeal in this Court because of a combination of financial hardship and well-being issues, but that he subsequently engaged a solicitor to prepare an amended notice of appeal after he commenced the present proceedings. He approached his current solicitor for assistance in September 2023 after being served with the Appeal Book. Secondly, the appellant submitted there could not be any prejudice to the Minister if leave were granted, as each new ground raises issues arising on the face of the Authority’s Reasons. Thirdly, there would be prejudice to the appellant if leave were not granted to advance the new grounds. Fourthly, the grounds now advanced have merit. Fifthly, the appellant submitted that the interests of justice generally require that an administrative decision affected by jurisdictional error not remain in force.

12    The Minister accepted that there is a valid explanation as to why the appellant was unrepresented below and did not claim any prejudice, except to the extent that a grant of leave would effectively turn this appeal into a fresh trial from which the Minister would have no opportunity to appeal in the event he was unsuccessful on the appeal. Nonetheless, the Minister submitted that a sound explanation and an absence of prejudice is insufficient to allow new grounds to be raised on appeal. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, which decision was relied on by the Minister, Lander J said:

[21]    Parliament has given the Federal [Circuit] Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal.

[22]    The High Court has made it plain that, ordinarily, a party is confined in its grounds of appeal to matters which have been raised in the Court below. The High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

[23]    In Coulton v Holcombe (1986) 162 CLR 1, the majority said 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 instances to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[24]    The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court’s point of view.

[25]    Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the [Authority] to be within solely the jurisdiction of the Federal [Circuit] Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.

(Emphasis added.)

13    The Minister submitted that there are no exceptional circumstances to warrant the grant of leave and, in any event, the proposed grounds have no prospects of success.

14    It is convenient to deal with proposed ground 2 before considering proposed ground 1. The proposed ground 2 contends that the primary judge erred in not recognising the Authority’s error at [45] of its Reasons where it found that if the appellant were to return to Iran, it would be on a voluntary basis. That finding was immediately preceded by the finding, at [44], that there was no real chance that he would be forcibly removed to Iran.

15    The finding in relation to voluntary return was in the following terms:

45.     I accept that as an unregistered a [sic] Faili Kurd who left Iran, the applicant will not be allowed to re-enter the country. However in any event, in light of the information regarding involuntary returnees, I consider that if he was to return to Iran it would be on a voluntary basis, on a temporary travel document, and after his asylum application had been unsuccessful.

16    In testing the prospects and consequences of voluntarily returning to Iran, the appellant contended that the Authority erred in finding there was only a remote chance that the Iranian authorities would become aware that he had departed illegally on a false Iraqi passport; in failing to deal with his claim to fear harm from arbitrary arrest in either Iran or Iraq due to his statelessness; in finding there was no credible evidence that undocumented Faili Kurds found working illegally in Iran are deported to Iraq; and in finding that the prospect of his being questioned and briefly detained by Iranian authorities as a voluntary returnee would not amount to serious harm. Those matters are the subjects of proposed grounds 3 – 6.

17    The appellant submitted that the conclusion reached by the Authority at [45] was irrational, illogical or not based on findings or inferences of fact based on logical grounds. The appellant pointed to the incompatibility of the finding with its acceptance (at [19]) of the appellant’s claims to fear harm in Iran at the hands of authorities.

18    In those circumstances, the appellant contended that it was incumbent on the Authority to test the prospect of involuntary return, citing DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38 at [53]-[55]. In DFO19, the Full Court was similarly concerned with the prospect of returning irregular maritime arrivals to Iran, but in that case, the appellants were Iranian citizens. The Full Court said:

53.    It might be that the country information received by the Tribunal refers to particular risks associated with involuntary removal, as against voluntary removal. If so, that might focus the attention of the Tribunal on whether the visa applicant has made a claim based on any particular mode of removal.

54.    It might be the case that the terms of the protection claim focus on involuntary removal but also disclose that the visa applicant asserts that they will not return voluntarily, or leaves that question and the prospect of any other means of removal open. In that scenario a decision maker would need to test the prospect of involuntary return. They might find, for example, that no involuntary removal can proceed based on country information, or that there is no reliable information as to what might happen in the returning country upon an involuntary removal, such that the protection claim is not made out. However, their consideration of involuntary removal may not be sufficient to meet the statutory task because there may be other prospective methods of removal that should be addressed. For example, once a finding is made that there will be no involuntary removal, some testing of the prospect that the visa applicant might return voluntarily may be required, even where the visa applicant has expressed a reluctance or refusal to do so. Such an approach is consistent with the decision maker proceeding under a provision that does not prescribe the manner of any prospective removal.

(Emphasis added.)

19    The appellant did not make his claim based on any particular mode of removal. The Authority nevertheless did test the prospect of involuntary return, as well as voluntary return. There was evidence before the Authority that, apart from his brother who has been granted a visa to remain in Australia, all members of the appellant’s family reside in Iran. There was therefore a possibility, albeit remote, that the appellant may have attempted to return voluntarily. There was nothing irrational in the circumstances of the Authority’s testing of such a possibility, even though the Authority had found that the appellant would not be allowed to re-enter Iran.

20    The Minister submitted that it was open to the Authority to have simply found that any possibility of return to Iran was far-fetched. The Full Court adverted to such a possibility in DFO19 at [57], saying:

We also acknowledge that there may be circumstances where the Tribunal finds that there is no real prospect of removal at all and it is far-fetched to assume to the contrary. In our view, such circumstances might provide an example of a case where the criteria in s 36(2)(aa) cannot be met and the visa applicant will have failed to make out a case for a protection visa. That is because the applicant will have failed to persuade the Tribunal that there is a realistic scenario in which, on return, he or she will suffer harm. Then there may not be an evidentiary basis for any ‘substantial grounds’ as required. That outcome will not be the result of a finding that return to the receiving country will not occur under any circumstances. It will be the result of a lack of evidence as to how that return will occur and its consequences.

21    That the Authority did not take that course, but considered the consequences of both modes of return, does not in my view disclose any error. Even if it were an error, such an error would be immaterial given there is no prospect of the appellant be permitted by the Iranian Government to enter Iran either involuntarily or voluntarily.

22    For these reasons, ground 2 is without merit.

23    Ground 1 contends that the primary judge erred in not recognising that the Authority erred in finding at [48] of its Reasons that it was not satisfied that the appellant would be deported to Iraq if returned to Iran.

24    The Minister submitted that this ground is hopeless. I agree.

25    The Authority was required by the definition of “receiving country” in s 5(1) of the Migration Act to consider whether the appellant had a “well-founded fear of persecution” in Iran, regardless of whether it was possible to return him there. It was uncontroversial that Iran is the appellant’s “receiving country” for the purposes of that inquiry. However, the appellant took issue to the extent that, he says, the Authority failed to consider the consequences of the appellant’s return to the receiving country, particularly where one of those consequences is said to be deportation to Iraq and where the appellant claims to fear harm should he be deported there. While the primary judge found that there was “no requirement for the Authority to consider the consequences of denial of re-entry to Iran” (PJ[44]), the Authority nevertheless performed that task. Having concluded that the appellant would not be allowed to re-enter Iran, at [45], and that he is not a citizen of Iraq despite being a Faili Kurd who was born there, at [28], there was no basis for the Authority to find that the appellant would be deported to Iraq if refused entry to Iran.

26    The Authority’s finding was as follows:

48.     While I accept the authorities may question and in this process may even briefly detain the applicant as a voluntary returnee, I am not satisfied that this treatment would amount to or lead to serious harm. I am not satisfied the applicant faces a real chance of harm as a failed asylum seeker from Australia should he return to Iran. Nor am I satisfied that if he returned to Iran he would be deported to Iraq.

27    The appellant submitted that this finding is directly at odds with the various factual findings that the Authority made as to the appellant’s status as a stateless, irregular migrant and the consequences of that status for the likelihood of his re-entry to Iran, particularly given that he is a Faili Kurd. He contended that the Authority’s finding that deportation to Iraq was unlikely to occur was illogical and therefore a jurisdictional error.

28    As the Minister submitted, however, the appellant was unable to explain how, not being a citizen of Iraq, he could be deported there without the cooperation and agreement of the Government of Iraq. Nothing in the country information before the Authority supported such a possibility. Indeed, the DFAT Thematic Report said, at [3.38], that “Post contacts are not aware of cases where unregistered Faili Kurds have been deported to Iraq”. Paragraph [2.20] of the DFAT Thematic Report referred to a “theoretical” risk that unregistered Faili Kurds face of deportation, “though in practice this is rarely carried out”. In accordance with the principles in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [78], [130]-[131], the Authority’s conclusion was therefore at least open on the evidence, if not entirely consistent with it, and certainly was not irrational or illogical.

29    Notwithstanding the characterisation of proposed grounds 3 – 6 as particulars of the grounds already considered, they also warrant consideration as standalone grounds given the way in which they have been pleaded.

30    Ground 3 contends that the primary judge erred in not recognising that the Authority erred in finding at [46] of its Reasons that there was only a remote chance that the Iranian authorities would become aware that the appellant had departed illegally on a false Iraqi passport. The appellant contends that this finding was irrational because it cannot be reconciled with the Authority’s acceptance that the Iranian authorities would consider the appellant to be an irregular migrant should he return to Iran and may question him about his departure in 2012 (Reasons at [27]-[28], [48]). The Minister submits however, and I agree, that the Authority’s finding was open on the evidence before it, particularly in view of its finding at [47] that there was an absence of country information which indicated that Iranian authorities have any interest in prosecuting stateless Faili Kurds who had used false Iraqi passports to leave Iran. Ground 3 cannot succeed.

31    Ground 4 contends that the primary judge erred in not recognising that the Authority failed to consider the appellant’s claim at paragraph [15] of his SHEV application that he feared harm from arbitrary arrest due to the suspicion which both Iraqi and Iranian authorities have of stateless people near the border, and that he would be in significant danger from the various terrorist and militia groups which operate in the area. The Minister submitted that, on a fair reading of the Authority’s Reasons, it should not be taken to have overlooked the issue as to arbitrary arrest, but instead had rolled up the issue into its general conclusion at [50] that the appellant does not have a well-founded fear of harm for any reason associated with his being a stateless, unregistered Faili Kurd in Iran were he to return. I accept that this reading is preferable. Ground 4 has no merit.

32    Ground 5 contends that the primary judge erred in not recognising that the Authority erred in finding at [39] of its Reasons that there was “no credible evidence” before it to indicate that undocumented Faili Kurds found working illegally in Iran are deported to Iraq, given that the Authority expressly referred to the abovementioned DFAT Thematic Report passages which suggested that deportations are “rarely carried out” in those circumstances. Having been taken to the relevant passages again during the hearing, I am not convinced that there is any inconsistency as alleged. The Minister submitted that the Authority’s reference to there being no credible evidence should on a fair reading be taken as a finding that there was insufficient evidence to indicate a real risk of the appellant being deported to Iraq, because the country information only showed a “theoretical risk” of deportation. I accept that submission. There is no contradiction or illogicality in that reasoning. Ground 5 must fail.

33    Ground 6 contends that the primary judge erred in not recognising that the Authority’s finding at [48] of its Reasons, that the prospect of the appellant being questioned and (possibly) briefly detained by Iranian authorities as a voluntary returnee would not amount to “serious harm”, was erroneous on the same basis as ground 2. That is, the finding was said to be illogical given that it was underpinned by the same notion from [45] of the Reasons that the appellant would voluntarily return to Iran. Ground 6 fails for the same reasons as those I have set out above in respect of ground 2.

34    Ground 7 contends that the primary judge erred in failing to find that the ultimate conclusion of the Authority, at [50] of its Reasons, was legally unreasonable because it was influenced by the alleged errors in reasoning identified in the previous six grounds. Given the conclusions I have reached in relation to those grounds, ground 7 cannot succeed.

Disposition

35    Leave should not be granted to raise grounds of appeal that were not raised before the primary judge, particularly when none of the proposed grounds has merit.

36    The appeal must be dismissed with costs.

Associate:

Dated:    2 April 2025