Federal Court of Australia

CYO23 v Minister for Immigration and Citizenship [2026] FCA 1050

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to “Minister for Immigration and Citizenship”.

2.    The originating application filed on 8 May 2026 is dismissed.

3.    The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The applicant applies pursuant to s 39B of the Judiciary Act 1903 (Cth) for a writ of certiorari to quash a decision of the Federal Circuit and Family Court of Australia (Division 2) (and for the usual consequential writ of mandamus): CYO 23 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FedCFamC2G 41 (PJ). The primary judge dismissed an application to extend time pursuant to s 477(2) of the Migration Act 1958 (Cth) to review a decision of the Immigration Assessment Authority, which had affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa. In these reasons each reference to a statutory provision is to the Act unless otherwise indicated.

2    As is well understood, this is not an appeal from the Circuit Court. The applicant must demonstrate that the primary judge fell into jurisdictional error in concluding that it was not in the interests of the administration of justice to extend time: Kanyan v Minister for Immigration, Citizenship and Multicultural Affairs [2025] HCA 52; (2025) 426 ALR 613 at [18], Gordon, Gleeson and Beech-Jones JJ; CZA 19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at [15] – [17], [19] – [21], Allsop CJ, Markovic and Colvin JJ; and APP17 v Minister for Immigration and Border Protection [2019] FCA 794 at [33], Bromwich J.

3    The applicant relies on two grounds. Each fall short of establishing jurisdictional error by the Circuit Court, and the application must be dismissed.

Background

4    The applicant is a citizen of Iran. He arrived in Australia as an unauthorised maritime arrival on 17 March 2013. On 1 March 2017 the applicant applied for a Safe Haven Enterprise (subclass 790) visa under s 65. On 25 January 2018 the applicant was charged with one count of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug (opium) between 16 January and 25 January 2018.

5    On 20 June 2018 the applicant attended an initial interview with a delegate of the Minister. On 31 July 2019 the Department advised the applicant that no decision would be made regarding his visa application prior to finalisation of his criminal prosecution.

6    On 29 April 2021 the applicant was convicted, and sentenced for seven years, for offences relating to the importation of more than 10kg of opium into Australia.

7    On 25 June 2021 a delegate of the Minister conducted a further interview with the applicant.

8    On 9 August 2021 the delegate decided to refuse to grant the visa. The applicant sought review of this decision by the Authority under Part 7AA, a provision repealed in October 2024.

9    On 12 October 2021 the Authority notified the applicant of its decision to affirm the decision of the Minister’s delegate and provided reasons. The Authority’s decision sets out the applicant’s claims as to why he should be granted protection in significant detail.

10    Dissatisfied with the Authority’s decision the applicant sought judicial review in the Circuit Court. The application for extension of time was made 767 days beyond the 35-day period prescribed in s 477 (1).

11    In affidavits made on 21 December 2023 and 25 September 2025, the applicant explained the delay. He also relied on affidavits made by employees of the Asylum Seeker Resource Centre and Russell Kennedy. In addition, he relied on a report from a psychologist. In short, he asserted the delay was due to a myriad of reasons relating to his incarceration, health and being unrepresented at the time of the Authority’s decision.

12    The primary judge was wholly unconvinced that the applicant had provided an adequate (and therefore reasonable) explanation for his delay: PJ [15] – [21]. That may have been sufficient to dismiss the extension application. Nonetheless, the primary judge addressed both prejudice as well as the merits of the review grounds. Pausing there, the present application does not contend that the primary judge fell into jurisdictional error in concluding that the applicant failed to adequately explain his delay.

13    In the Circuit Court, the applicant pressed four review grounds. Only two remain relevant. The first contended that the Authority misconstrued and thereby constructively failed to consider the claim that his tattoos would materially contribute to him facing harm in Iran. The fourth contended that the Authority failed to conduct a cumulative assessment of whether he faced a real chance of harm, conformably with the submissions made by his representatives.

14    In the Circuit Court the applicant summarised his claims that he:

•    Had rejected Islam and identified as Christian.

•    Had numerous tattoos. Some were obtained before his arrival in Australia and some thereafter.

•    Suffered from symptoms of post-traumatic stress disorder.

•    Had not undertaken his compulsory military service in Iran.

•    Did not have Iranian travel documents.

•    Had been convicted and sentenced for drug trafficking offences in Australia. This offending had been the subject of news reports identifying the Applicant.

15    The gravamen of ground one was that the Authority made a factual error in finding that the applicant failed to raise the potential harm he may face in Iran because of his tattoos in his initial SHEV application. This finding was also the basis for concluding that his evidence about being beaten in Iran because of his tattoos was unconvincing: PJ [29] – [31].

16    The primary judge rejected this ground as not arguable. While accepting the applicant’s submission that the Authority made an error in that finding, her Honour concluded that it was factual and within jurisdiction: PJ [41] – [46].

17    Ground four was framed in submissions before the primary judge as a failure by the Authority to bring to bear on its analysis the cumulative picture of the applicant’s claims, to the effect that if he returned to Iran voluntarily, he would be questioned at some length about the circumstances surrounding his return, where his criminal history may come to light together with his conversion to Christianity, and where questions may be asked about his tattoos and his mental health. Instead, the Authority relied on general information about the process to which people travelling on temporary documents are subjected to in Iran and concluded that there was no evidence to indicate that the Iranian authorities were aware of his criminal history, his conversion to Christianity or his mental health challenges. Overall, the Authority was not satisfied that any questioning by the authorities would give rise to any chance of harm.

18    The primary judge rejected this ground as not arguable quite briefly at PJ [74] – [76] because it was misconceived in that the Authority rejected each of the applicant’s claims and hence there was nothing left to consider cumulatively.

The present application

19    The applicant’s originating application for an extension of time for relief by way of certiorari and mandamus relies on two grounds as pleaded in his supporting statement of claim. The first contends that the decision of the primary judge “was affected by jurisdictional error in that the Court’s conclusion that ground one was not arguable was not reasonably open, or else arose from a failure to lawfully consider that ground”. The particulars focus on the acceptance by the primary judge that the Authority erred in misunderstanding that the applicant had not raised the tattoo issue in his SHEV application but then contend that her Honour fell into jurisdictional error in characterising it as an error of fact within jurisdiction. That finding was erroneous as “an inseparable part of the Authority’s basis for rejecting the applicant’s claim” which error “was dispositive and material” and therefore not one within jurisdiction.

20    The second ground contends the decision of the primary judge “was affected by jurisdictional error in that the Court’s finding that ground four was not arguable was based on an erroneous or incomplete apprehension of that ground”. This is particularised in three ways: (1) in fact, the Authority had not rejected all of the applicant’s claims; (2) the reasons of the Authority were segmented in such a way that it failed to complete its assessment of the chance of harm faced by the applicant; and (3), the “extremely brief” reasons of the primary judge did not grapple with or dispose of the ground as put.

21    The primary judge reasoned as follows.

22    In addressing ground one, her Honour (having accepted the factual error of the Authority regarding SHEV application) reasoned that a factual error will only be jurisdictional if it results in the decision-maker not considering the claims as made: PJ [42]. For that proposition her Honour referenced Sidhu v Minister for Immigration [2017] FCA 889 at [25] – [28], Derrington J and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28], North and Lander JJ.

23    Next, the primary judge set out extensive passages from the reasons of the Authority in considering the applicant’s claims that he had been treated badly (and beaten) by the Iranian authorities because of his tattoos and as such it was likely he would be mistreated if he returned to Iran: PJ [44]. In broad summary, the Authority accepted that the applicant received his first tattoo when in Iran, his parents were aware of that fact, and he obtained more tattoos whilst in Australia. The Authority found that Iran’s laws and religious rules do not forbid tattooing except for images considered obscene or “nasty”. The Authority noted that according to Department of Foreign Affairs and Trade (DFAT) information tattoos are increasingly popular in Iran, notably with young men. The Authority also found that international and domestic observers agree that men are subject to less strict controls on personal appearance than women and that some men claim to have been discriminated against on the basis of dress, including because they have visible tattoos. The Authority further found that based on DFAT assessments, men in Iran with tattoos face a low risk of official and societal discrimination. Based on this reasoning, the Authority concluded that it could not accept the applicant’s evidence that he had previously received attention from authorities in Iran because of his tattoos. In any event he was not a political activist and nor was it apparent that his tattoos were “obscene or nasty”.

24    The primary judge then found at [45] – [46]:

The Authority examined a good deal of country information, and, largely on the basis of that country information, concluded that the applicant had not previously been beaten by the authorities because of his tattoo, and did not face a real chance of being harmed in the future because of his tattoos.

The Authority considered the claim as made. It follows that the error was an error of fact within jurisdiction. Ground 1 is not arguable.

25    Mr Maloney for the applicant submits that the primary judge committed jurisdictional error because this conclusion cannot be reconciled with the Authority’s reasons. In writing he submits in part:

It does not account for the fact that the Authority rejected the Applicant’s account of past harm arising from his tattoos ‘especially’ because it (incorrectly) found that this account was not given in his SHEV application. It further does not account for the fact that the Authority subsequently cited its rejection of this account as one of several reasons which cumulatively led it to conclude that it was not satisfied that the Applicant faced a real chance of harm on this basis. Whatever other matters it placed weight on (including country information), there is no doubt that it placed dispositive weight on its error in rejecting the Applicant’s claim.

26    The submission continues that primary judge’s conclusion that the error of the Authority was within jurisdiction is erroneous because her Honour failed to “accurately or fully apprehend the basis of the substantive application”. There is another strand to the argument that relies on Ayache v Minister for Home Affairs [2019] FCA 80 at [50], where Murphy J observed:

I accept that the Tribunal decision involved a mix of considerations, and that at other points of its decision the Tribunal referred to the applicant’s criminal history alone, but that is no answer in the circumstances of the present case. Where the decision-maker relies on a cumulative series of adverse findings in coming to an ultimate conclusion and there is no evidence for one of these findings, jurisdictional error may result.

27    Anchored by those submissions, Mr Maloney submits that the primary judge failed to consider the ground as put or failed to come to grips with the point, because her Honour misunderstood the ground as limited to factual error by the Authority in concluding that the ground was not arguable and as such, that it was not in the interests of the administration of justice to extend time. In oral submissions, Mr Maloney accepted (despite the framing of part of his written submission) that this ground does not assert legal unreasonableness or illogicality error by the primary judge.

28    I am quite unable to accept those submissions.

29    Mr Barrington for the Minister is correct to submit that the arguments reduce to no more than an impermissible invitation to form a different view on the merit of this ground and fail to expose why the primary judge misconceived the nature or limits of her jurisdiction to consider whether it was necessary to extend time pursuant to s 477(2).

30    The ground falls short of the hurdle that the applicant must negotiate on this s 39B Judiciary Act application: a legal or factual error made by a court, even one of inferior jurisdiction, is not ordinarily jurisdictional: Kanyan at [18]. The reliance on Ayache is misplaced. Justice Murphy did not formulate a principle of general application, the conclusion of jurisdictional error was fact dependent and, in any event, was of a type that may result in jurisdictional error.

31    Moreover, in more detail, the Full Court in CZA 19 comprehensively addressed what is required to establish jurisdictional error where it is said that the Circuit Court has failed to lawfully exercise the jurisdiction to extend time pursuant to s 477(2). The difference between jurisdictional and non-jurisdictional error is a threshold issue ([14]) and “is properly described as a limited question that turns on whether the judge misconceived the nature of the function which the Court was performing”: [15]. Jurisdictional error is not established by contentions that no proper consideration was given to grounds relied on before the Circuit Court: [21].

32    Of particular relevance to the applicant’s arguments in this application, is the analysis at [34] where in part the Court observed:

In cases like the present, there is an important distinction between a claim that the Federal Circuit Court judge did not deal with the nature of the application that was made (on the one hand) and a claim that the Court on review should conclude that the Federal Circuit Court judge misunderstood the nature of the review grounds the subject of the application or their merit (on the other hand). A claim of the latter kind is unlikely to be a claim of jurisdictional error because to seek to identify the nature of the grounds and to assess whether they have merit for the purpose of determining whether it was necessary in the interests of justice to extend time is at the heart of performance of the (within jurisdiction) judicial task. Therefore, the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered.

33    The primary judge did not misconceive the nature of her jurisdiction. It is clear that her Honour correctly understood the issue: whether to exercise her discretion to extend time, and whether that was necessary in the interests of the administration of justice: PJ [2] – [4] (including that her Honour sets out s 477 in complete terms). Next her Honour listed the usual considerations that guide the exercise of the discretion: the length of the delay, the explanation for it, prejudice and the prospect of success of the underlying application: [5]. Her Honour correctly understood that in addressing the prospects of success that each party could proceed on the basis that it was open to consider the merits in considerable detail, rather than on an impressionistic level: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579.

34    Her Honour’s assessment of ground one was evaluative. Her Honour accepted that the Authority committed factual error but concluded it was within jurisdiction because the Authority relied on other information in deciding that it could not accept the applicant’s claims of mistreatment in Iran because of his tattoos and consequently his claim to harm if returned: PJ [44] – [46].

35    The present application is not a vehicle for this Court to review the primary judge’s reasons for correcting the factual error. It is not correct that the primary judge failed to apprehend the ground in concluding that it was not arguable. Her Honour performed the function required by s 477(2) in assessing the merit of the ground as a matter relevant to the exercise of her discretion. Her Honour did not fail to address the substance of the ground or the argument in support. Her Honour reached a conclusion adverse to the applicant. It is not to the point that this Court may take a different view of the merit of the ground. The primary judge had jurisdiction to decide the merit of the ground wrongly in her evaluation of whether the ground was arguable in her exercise of discretion: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 at [107], Edelman J.

36    Ground two contends that in finding ground four was not arguable, the primary judge erroneously or incompletely apprehended the ground. The central complaint is that the applicant claimed, by reference to information before the Authority, that his circumstances were such that he would face a real chance of harm from the Iranian authorities if he returned. The written submissions of his counsel before the primary judge emphasised the need for a cumulative appraisal of his claims in assessing the threat of harm he would likely apprehend.

37    Ground four before the primary judge was very briefly expressed:

The Authority failed to conduct a cumulative assessment of the Applicant’s claims.

38    The applicant’s written submissions before the primary judge articulated the contended error in some detail. The submissions commenced by accepting that the mere absence of an explicit cumulative assessment of claims may be immaterial, such as where the reasons reveal in substance that is what occurred. It was then submitted that is not what occurred in this case. Extracts from submissions made by the applicant’s representatives to the Authority were set out, in which each of his claims of a well-founded fear of persecution (see above at [14]) were repeated in support of the contention that there is a real risk that the Iranian authorities will be able to identify him upon his return to Iran. And then:

Upon return, [the applicant] will be handed to authorities on arrival where he will be detained and questioned. Given his claims above, country information supports the contention that the Authorities will take a negative views of his actions.

When the nature of [the applicant’s] circumstances are viewed cumulatively as a whole, there is a real chance he will face persecution due to his Christian conversion if he were forced to return to Iran.

39    The written submissions before the primary judge then developed the point of ground four as:

In assessing the Applicant’s claims, the Authority for instance concluded that ‘[t]here is no information before me to indicate that the Iranian authorities are aware of his criminal history in Australia’; and ‘no evidence before me to indicate th[at] posts associated with [the Applicant’s] involvement with Christianity and media article have come to the adverse attention of the Iranian authorities’; that the Applicant would not ‘publicly renounce Islam or promote his nonbelief in Islam or his views on religion’; that he would not be targeted for harm because of his PTSD symptoms; that he would not ‘be at risk of attracting the specific attention of the authorities and questioned should he return to Iran’; and that he would not face harm because of his tattoos, including because ‘DFAT assesses that where there have been incidents of harassment of men for violating the dress code, it is likely to have been… because the individual has come to the attention of authorities for separate activities, particularly political activism’.

Yet the Authority concludes—by reference to general information about the process to which people travelling on temporary travel documents are subjected—that although the Applicant, if he returns to Iran voluntarily, will be questioned by the Iranian authorities, this will not give rise to any chance of harm.

The Authority failed to bring to bear on this analysis the cumulative picture that emerged from the Applicant’s claims. If he returned to Iran voluntarily, the Applicant would be questioned at some length by the authorities about the circumstances surrounding his return to Iran with laissez-passer documents. The Authority ought to have considered the likelihood that through that process, the Applicant’s criminal history may come to light; that by virtue of some of the sources revealing that history also revealing his conversion to Christianity, that too may come to light; that concerns may also be raised about his tattoos; and that the experience and its potential consequences may be particularly harmful in light of the Applicant’s mental health. It thereby erred.

40    The Minister’s written submissions on this ground before the primary judge were brief. The Authority rejected each of the applicant’s protection claims, “one after another” and, by reference to pinpoint casebook references, the Minister referred to where the Authority had done so. The Minister’s submission continued:

Having rejected each of the applicant’s claims as not giving rise to a real or significant risk of harm upon return to Iran, the Authority said that “[h]aving regard to all the evidence before me, I am not satisfied that he will be at risk of attracting the specific attention of the authorities and questioned should he return to Iran”. Read in context, the reference to considering all the evidence was a cumulative consideration of the applicant’s claims.

41    The Minister’s submissions then referenced Minister for Immigration and Border Protection v DDK 16 [2017] FCAFC 188 at [34], Gilmore, Markovic and O’Callaghan JJ, where the Court explained:

It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

42    The analysis of this ground by the primary judge was exceedingly brief at PJ [74] – [76]. Her Honour commenced by stating the ground and then at [75] said:

This ground is misconceived. The Authority rejected all of the applicant’s claims. There was nothing left for the Authority to consider cumulatively. This was explained in [DDK] at [34] as follows…

43    Her Honour then repeated the passage from DKK relied on by the Minister and found that the ground “is not arguable” at PJ [76].

44    The applicant now submits that the primary judge failed to deal with the ground as put. Contrary to the Minister’s submission, the Authority accepted each of the applicant’s claims as set out in the written submissions before the primary judge. What the Authority rejected was the consequence of the claims. To illustrate the point, at [90] the Authority’s delegate addressed the applicant’s offending:

I accept the applicant is currently in prison having been charged, convicted and sentenced for offences relating to the importation of illegal substances (opium) and sentenced to seven years imprisonment. I accept that the applicant’s criminal history including the court proceedings, conviction and sentencing along with his name, age and nationality have been publicly available in the media and internet and also with ABF and AFP media releases. There is no information before me to indicate that the Iranian authorities are aware of his criminal history in Australia. The applicant fears the Iranian authorities will execute him for his criminality in Australia.

45    The delegate at [91] – [93] made findings about the punishment for narcotics offences in Iran, including a mandatory death penalty for trafficking more than 5kg of narcotics manufactured from opium, and considered the provisions of the Iranian Penal Code that address double jeopardy or re-prosecution, including for crimes committed outside Iran. The delegate found at [93] that drug trafficking does not attract re-prosecution Iran unless it involves attacks on Iranian national interests, property or citizens. At [94], the delegate concluded that he was not satisfied that the applicant would be re-prosecuted for his crime in Iran and therefore was not satisfied that he faces a real chance of harm on his return “now or in the reasonably foreseeable future”.

46    Mr Maloney submits that the primary judge failed to grasp the cumulative submission that was put to her as amounting to jurisdictional error by the Authority. The reasons of the Authority sequentially considered each of the applicant’s claims, accepted their factual basis but concluded that none met the threshold of a real chance of harm if he were forced to return to Iran. The argument that the applicant put to the primary judge was that the Authority erred by conducting a segmented analysis, whereas in the circumstances (and conformably with the submission put to the Authority) a cumulative assessment of whether he faced a real chance of harm if returned to Iran was required.

47    Mr Maloney accepts that the delegate arguably conducted a cumulative assessment at [107]:

Having regard to all the evidence before me, I am not satisfied that he will be at risk of attracting the specific attention of the authorities and questioned should he return to Iran. I am not satisfied the applicant has a profile such that there is a real chance he will attract the adverse attention of the Iranian authorities on return for any reason, including his criminal history in Australia. I am not satisfied there is a real chance he will be subjected to prolonged questioning or that he will face a real chance of harm during such questioning for any reason. I also do not consider being questioned for a short period in these circumstances amounts to harm.

48    The Applicant’s submission is relevantly whether this amounted to a cumulative assessment by the Authority. Indeed, whether it was obliged to conduct such an assessment, is not to the point. The applicant’s ground as argued before the primary judge was that the Authority fell into jurisdictional error in failing to undertake a cumulative assessment. Mr Maloney argues that her Honour failed to grapple with the ground because she misunderstood that it did not turn on the distinction between acceptance by the Authority of the factual basis for each of the applicant’s claims, but upon the cumulative rejection of each of the facts as not satisfying the criteria for the grant of a protection visa at s 36(2)(a) when read with the definition of refugee at s 5H. The ground contended that the cumulative assessment error caused the Authority to fall into jurisdictional error in separately concluding that none of the applicant’s claims satisfied the protection visa criteria.

49    In contrast, Mr Barrington submits that whilst the Authority accepted the factual basis for the applicant’s claims, each was found not to give rise to a real chance of any harm if returned to Iran and, in that circumstance despite the brevity of the reasons, the primary judge was correct to find that the ground was not arguable. The primary judge correctly understood the Minister’s submission that having rejected each of the applicant’s claims as not giving rise to a real or significant risk of harm, no cumulative assessment was required: DDK16 at [34]. In any event, read in context the Authority did undertake a cumulative assessment when the delegate had regard to all the evidence at [107].

50    In my view the primary judge did not fail to address the applicant’s “crucial argument”, to adopt the language of CZA19 at [34]. Her Honour’s reasons for concluding that the ground was misconceived could have been expressed more comprehensively, but on this application the issue is whether there was a fundamental misunderstanding of the point. Her Honour’s reliance on DDK16 was correct. Why is revealed on closer analysis of what that case decided.

51    The applicant in DDK16 applied for a protection visa based on five claims to fear of harm. His bridging visa was cancelled because he was charged with a serious criminal offence. A delegate of the Minister then refused to grant a SHEV visa and that decision was automatically referred to the Authority for fast-track review. The Authority affirmed the delegate’s decision. Similarly with what occurred in this case, the Authority individually rejected each of the applicant’s claims on the basis that it was not satisfied that he would face a real chance of serious harm on return to Iran: [21]. Further, and explicitly, the Authority stated that it had considered the claims cumulatively and, assessing them as a whole, found they did not give rise to a real chance of serious harm: [23], [25] – [26].

52    The applicant then applied for review in the Circuit Court where the primary judge found that there had not been an active intellectual engagement with his cumulative assessment argument, reasoning in part [28] that the:

[R]olled up cumulative assessment at the end of its reasons does not expressly deal with the possibility that, when considered cumulatively, these risks might become significant. In a case like the present, where the applicant faces multi-faceted risks which may interact and interrelate, particularly when considered with his mental health condition, the bland assertion that the claims were considered cumulatively does not satisfy me that this was anything more than the application of a verbal formula.

53    The Circuit Court granted certiorari and mandamus relief. The Minister appealed and the matter was referred to a Full Court.

54    The reasons of the Full Court at [32] and [33] are important in understanding the point made at [34] (citations omitted):

Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appealable error)..

Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:

Broadly speaking, it can be accepted that there is an obligation to consider the parts of a visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act].

The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material… Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant…. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria…, or causative factors that may not give rise to the relevant risk on their own, but may do so collectively ....

55    In my view, and with respect to the careful arguments of Mr Maloney, this reveals why the primary judge was correct to conclude that ground four was misconceived on the facts of this case. Putting aside whether the Authority undertook a cumulative assessment at [107] of the reasons, it was not obliged to do so where none were found to give rise to a real chance of harm if the applicant was returned to Iran. It was for her Honour to formulate the issue that was dispositive to expose this ground as misconceived. Having done so, there was no obligation to address the cumulative assessment argument seriatim. Put another way, the primary judge did not commit jurisdictional error by failing to engage directly with the ground where her Honour concluded that its premise was misconceived.

56    For these reasons, the application must be dismissed. Counsel agreed that there is no reason why costs do not follow the event.

57    Finally, it is appropriate to record that Mr Maloney and his instructing solicitors, Russell Kennedy, acted pro bono in this matter. As always, the Court is very grateful for the assistance provided, especially in migration cases, by lawyers who are prepared to act on that basis.

Associate:

Dated:    3 August 2026